Energy Act

Section 1. Short title Section This Act may be cited as the Energy Act.

Section 2. Interpretation Section an electric supply line; or

Section 3. Act to prevail Section 3(1)(a) the importation, exportation, generation, transmission, distribution, supply or use of electrical energy; Section 3(1)(b) the exploration, production, transportation, distribution, and supply of any other form of energy; and Section 3(1)(c) all works and apparatus for any or all of these purposes. Section 3(2) Save where this Act expressly provides otherwise, any licence granted or anything done under this Act shall not affect the right, privilege, obligation or liability acquired by any licensee or other person in any contract or under any written law prior to the commencement of this Act.

Section 9. Establishment of the Energy and Petroleum Regulatory Authority Section 9(1) There is established the Energy and Petroleum Regulatory Authority hereinafter referred to as the Authority. Section 9(2)(a) suing and being sued; Section 9(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 9(2)(c) borrowing and lending money; and Section 9(2)(d) doing or performing all other things or acts for the furtherance of the provisions of the Act which may be lawfully done or performed by a body corporate. Section 9(3) Except as otherwise provided in this Act, the Authority shall be independent in the performance of its functions, exercise of its powers and shall not be subject to the direction or control of any person or authority.

Section 10. Functions of the Authority Section generation, importation, exportation, transmission, distribution, supply and use of electrical energy with the exception of licensing of nuclear facilities;

Section 11. Powers of the Authority Section issue, renew, modify, suspend or revoke licences and permits for all undertakings and activities in the energy sector;

Section 12. Board of the Authority Section 12(1)(a) a Chairperson who shall be appointed by the President; Section 12(1)(b) the Principal Secretary responsible for Energy or his representative; Section 12(1)(c) the Principal Secretary responsible for Petroleum or his representative; Section 12(1)(d) the Principal Secretary in the National Treasury or his or her authorized representative; Section 12(1)(e) one County Executive Committee member responsible for energy and petroleum or his representative nominated by the Council of County Governors; Section 12(1)(f) the Director-General; and Section 12(1)(g) five other members not being public officers appointed by the Cabinet Secretary. Section 12(2)(a) is a citizen of Kenya; Section 12(2)(b) holds a degree from a university recognized in Kenya or its equivalent; Section 12(2)(c) has at least seven years' relevant professional experience; Section 12(2)(d) is a member in good standing of the relevant professional association; and Section 12(2)(e) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution. Section 12(3) The Chairperson and members of the Board under subsection (1)(g) shall be appointed...

Section 13. Director-General Section 13(1) The Board shall subject to the approval of the Cabinet Secretary, appoint a Director-General who shall be the chief executive officer of the Authority and shall, subject to the directions of the Board, be responsible for the day to day management of the Authority. Section 13(2) The appointment of the Director-General under this section shall be through a competitive recruitment process. Section 13(3)(a) is a citizen of Kenya; Section 13(3)(b) holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, physical sciences, law, finance, environmental studies, economics or energy; Section 13(3)(c) has at least seven years management experience at a senior level; Section 13(3)(d) has at least two years of experience in petroleum and energy; Section 13(3)(e) is a member in good standing of the relevant professional association; and Section 13(3)(f) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution. Section 13(4) The Director-General shall hold office for a term of three years and shall be eligible for re-appointment for one further term of three years. Section 1...

Section 14. Conduct of business and affairs of the Board Section The conduct and regulation of the business of the Board shall be as provided in the First Schedule, but subject thereto, the Board shall regulate its own procedure and the procedure of any committee constituted under the Act.

Section 15. Terms of office, common seal, annual estimates and books of accounts Section The terms of office, vacancy of office, removal from office of the members of the Board, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Authority shall be as accounts provided in the Second Schedule.

Section 16. Staff of the Authority Section The Authority may in consultation with the Public Service Commission, appoint such staff as it may require for the proper discharge of its functions under this Act, on such terms and conditions of service as the Authority may determine.

Section 17. Remuneration of members of the Board Section The Authority shall upon the advice of the Salaries and Remuneration Commission pay its members of the Board such remuneration, fees or allowances for expenses as it may determine.

Section 18. Protection from personal liability Section A matter or thing or an act done by a member of the Board or an officer, employee or agent of the Authority shall not, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the members of the Board, officer, employee or agent or any person acting on lawful directions of the Authority personally liable to any action, claim or demand whatsoever.

Section 19. Liability of the Authority for damages Section This Act shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to that person, that person's property or any of that person's interests caused by the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works.

Section 20. Funds of the Authority Section 20(1)(a) levies not exceeding one half of a percent on the sales of electricity and petroleum products; Section 20(1)(b) licence fees; Section 20(1)(c) such monies or assets as may accrue to or vest in the Authority in the course of the exercise of its powers or the performance of its functions under this Act; Section 20(1)(d) such monies as may be provided by Parliament for the purposes of the Authority; Section 20(1)(e) any revenues generated from any proprietary interest held by the Authority whether movable or immovable; Section 20(1)(f) interest from bank deposits; and Section 20(1)(g) all monies from any other source provided for or donated or lent to the Authority: Provided that any monies collected by the Authority including levies, fines and penalties in exercise of its functions shall be paid into the Consolidated Fund. Section 20(2) Any funds retained by the Authority shall make part of the funds of the Authority by way of appropriation. Section 20(3)(a) the amount in Kenya Shillings payable per cubic metre of crude oil; Section 20(3)(b) the amount of Kenya Shillings payable per one thousand cubic metre of marketable natural gas...

Section 21. Delegation of powers or functions to committees or agents Section 21(1) The Authority may, by resolution either generally or in any particular case delegate to any committee of the Authority or to any member, officer, employee, self-regulated organization or agent of the Authority, the exercise of any of the powers or the performance of any of its functions or duties. Section 21(2) Every such committee, officer, employee, self-regulated organisation or agent shall be appointed by the Authority in writing, setting out the duration of the appointment, the duties, reporting requirements, functions, authority and powers so conferred. Section 21(3) The Authority may at any time revoke a delegation under this section. Section 21(4) A delegation conferred under this section shall not prevent the Authority from performing the delegated function. Section 21(5) In this section, a self-regulated organisation means an organisation whose object is to regulate the operations of its members or the users of its services and includes the organisations that may be recognised as such by the Authority.

Section 22. Powers of committees or agents Section 22(1)(a) enter upon any premises at which any undertaking is carried out or an offence under this Act is or is suspected to have been committed; Section 22(1)(b) inspect and test any process, installation, works or other operation which is or appears likely to be carried out in those premises; Section 22(1)(c) be accompanied by a police officer if there is a reason to believe that any serious obstruction may occur; Section 22(1)(d) require from any person the production of any book, notice, record, list or other document which appears to the committee, officer, employee or agent to have relevance to the inspection or inquiry, which is in the possession or custody or under the control of that person or of any other person on that committee's or agent's behalf; Section 22(1)(e) examine and copy any part of any book, notice, record, list or other document which appears to have relevance to the inspections or inquiry, and require any person to give an explanation of any entry therein, and take possession of any such book, notice, record, list or other document as the committee, officer, employee or agent believes may afford evidence of...

Section 23. Decisions of the Authority Section 23(1) The Authority shall within sixty days from the date of receipt of a request by an applicant, make its decision on any matter before it. Section 23(2) A decision of the Authority shall be in writing and any order given and reasons thereof shall be served upon all parties to the proceedings, and may be published in the Gazette as prescribed by regulations. Section 23(3) The Authority shall, within seven days of making a decision, communicate such decision to the parties involved. Section 23(4) All orders of the Authority shall become effective on the date of entry thereof, and shall be complied with within the time prescribed therein. Section 23(5) Where the Authority does not make a decision as provided in subsection (1) the appellant may appeal to the Tribunal within seven days of the expiry of the prescribed period.

Section 24. Appeal against a decision of the Authority Section 24(1) A person aggrieved by a decision of the Authority may appeal to the Tribunal within thirty days of receipt of the decision. Section 24(2) Notwithstanding subsection (1), the Tribunal may entertain an appeal after the expiry of the thirty-day period if it is satisfied that there was sufficient cause for not filing it within that period.

Section 25. Establishment of the Energy and Petroleum Tribunal Section There is established the Energy and Petroleum Tribunal, hereinafter referred to as "the Tribunal", for the purpose of hearing and determining disputes and appeals in accordance with this Act or any other written law.

Section 26. Members of the Tribunal Section 26(1)(a) a chairperson who shall be appointed by the President from among persons qualified to be judges of the High Court and who has at least five years' experience in energy and petroleum matters; and Section 26(1)(b) six other persons possessing knowledge and experience in law, petroleum and energy and who are not in the employment of the Government, Agency or the Authority. Section 26(2) The members of the Tribunal shall at the first meeting of the Tribunal elect a vice-chairperson who shall be a person qualified to be a judge of the High Court possessing at least five years' experience in energy and petroleum matters. Section 26(3)(a) is a citizen of Kenya; Section 26(3)(b) holds a degree in a relevant area from a university recognized in Kenya; Section 26(3)(c) is a member in good standing of the relevant professional association; Section 26(3)(d) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution. Section 26(4) The Chairperson, Vice-Chairperson and members of the Tribunal shall be appointed at different times so that the respective expiry dates of their terms office shall fall at differen...

Section 27. Vacancy in the Tribunal Section 27(1)(a) at the expiration of three years from the date of appointment; Section 27(1)(b) if the member accepts any office the holding of which, if he or she were not a member of the Tribunal, would make him or her ineligible for appointment to the office of member of the Tribunal; Section 27(1)(c) if he or she is removed from membership of the Tribunal by the Cabinet Secretary on the recommendation of a tribunal set up for that purpose under subsection (3); or Section 27(1)(d) if he or she dies or resigns from office. Section 27(2) A person desiring the removal of a member of the Tribunal on the ground specified in subsection 1(c) may present a complaint under oath to the Cabinet Secretary setting out the alleged facts constituting that ground. Section 27(3)(a) may suspend the member pending the outcome of the complaint; and Section 27(3)(b) shall appoint a tribunal in accordance with subsection (4). Section 27(4)(a) a person who holds or has held office of a judge of a superior court, who shall be the chairperson; Section 27(4)(b) at least two persons who are qualified to be appointed as judge of the high court; and Section 27(4)(c) one...

Section 28. Oath of office Section A person who is appointed a member of the Tribunal shall, before assuming the duties of the office, take and subscribe to the oath of allegiance to the office.

Section 29. Disclosure of interest Section Where a member of the Tribunal, as constituted for the purposes of a proceeding, has any interest, direct or indirect, that could conflict with the proper performance of the member’s functions, he or she shall disclose the interest to the parties to the proceeding and shall not be present during any deliberations on the matter by the Tribunal or take part in a decision of the Tribunal on the matter.

Section 30. Secretary and other staff Section 30(1) The Cabinet Secretary shall appoint the secretary to the Tribunal. Section 30(2) A person shall be qualified to be appointed to hold office as secretary to the Tribunal under subsection (1) if such a person is an advocate of the High Court of Kenya of not less than seven years standing. Section 30(3) The Tribunal may appoint such other staff as may be necessary for the proper discharge of the functions of the Tribunal under this Act.

Section 31. Terms of office, common seal, annual estimates and books of accounts Section The terms of office, vacancy of office, removal from office of the members of the Tribunal, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Tribunal shall be as provided in the Second Schedule.

Section 32. Arrangement of business Section 32(1) The Chairperson shall be responsible for ensuring the orderly and expeditious discharge of the business of the Tribunal. Section 32(2)(a) arrangement of the business of Tribunal; Section 32(2)(b) places at which the Tribunal may sit generally; and Section 32(2)(c) procedure of the Tribunal at a particular place. Section 32(3) The times and places of the hearings of the Tribunal shall be determined by the Chairperson with a view to securing a reasonable opportunity for applicants to appear before the Tribunal with as little inconvenience and expense as is practicable. Section 32(4) The rules of procedure of the Tribunal shall be published in the Gazette by the Chairperson.

Section 33. Quorum and conduct of business of the Tribunal Section 33(1) The Chairperson shall preside at all sittings of the Tribunal at which he is present and in the absence of the Chairperson the Vice-Chairperson shall preside. Section 33(2) The quorum of the Tribunal shall be three members including the Chairperson or the Vice-Chairperson as the case may be.

Section 34. Technical advice Section The Tribunal may seek technical advice from persons whose specialized knowledge or experience may assist the Tribunal in its proceedings: Provided that such persons shall disclose any interest they may have in the matter before the Tribunal or any subsequent interest acquired relating to the matter in question.

Section 35. Remuneration Section 35(1) The Tribunal shall, in consultation with the Cabinet Secretary and upon the advice of the Salaries and Remuneration Commission, pay its members such remuneration, fees or allowances for expenses as it may determine from time to time. Section 35(2) Any person who gives technical advice in accordance with section 34 to the Tribunal shall be paid such allowance as may be determined by the Tribunal. Section 35(3) The members of the Tribunal shall serve on part-time basis.

Section 36. Jurisdiction of the Tribunal Section 36(1) The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act. Section 36(2) The jurisdiction of the Tribunal shall not include the trial of any criminal offence. Section 36(3) The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees. Section 36(4) The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration. Section 36(5) The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance. Section 36(6) The Tribunal shall hear and determine matters referred to it expeditiously.

Section 37. Power of review and appeals from Tribunal Section 37(1) The Tribunal may, on its own motion or upon application by an aggrieved party, review its judgments and orders. Section 37(2) Judgments and orders of the Tribunal shall be executed and enforced in the same manner as judgments and orders of a court of law. Section 37(3) Any person aggrieved by a decision of the Tribunal may, within thirty days from the date of the decision or order, appeal to the High Court. Section 37(4) The law applicable to applications for review to the High Court in civil matters shall, with the necessary modifications or other adjustments as the Chief Justice may direct, apply to applications for review from the Tribunal to the High Court.

Section 38. Procedure of the Tribunal Section 38(1) The Tribunal shall meet as and when there is need to exercise its jurisdiction under this Act. Section 38(2) Unless a unanimous decision is reached, a decision on any matter before the Tribunal shall be by a majority of votes of the members present and in the case of an equality of votes, the Chairperson or the person presiding shall have a casting vote. Section 38(3) The Tribunal shall conduct its proceedings without procedural formality but shall observe the rules of natural justice and rules of evidence of a similar nature. Section 38(4) Except as prescribed in this Act, the Tribunal shall regulate its own procedure.

Section 39. Funds of the Tribunal Section 39(1)(a) such monies as may, from time to time, be appropriated by Parliament for that purpose; Section 39(1)(b) interest from bank deposits; and Section 39(1)(c) grants as may approved by the Judicial Service Commission. Section 39(2) There shall be paid out of the funds of the Tribunal, all expenditure incurred by the Tribunal in the exercise of its powers or the performance of its functions under this Act.

Section 40. Appeals from decisions of the Authority Section Where under this Act the provision is made for appeals from the decisions of the Authority or any licensing authority, all such appeals shall be made to the Tribunal, in accordance with the provisions of this Act.

Section 41. Protection from personal liability Section A matter or thing or act done by a member of the Tribunal or any officer, employee or agent of the Tribunal shall not, if the matter or thing is done bona fide for executing the functions, powers or duties of the Tribunal, render the member, officer, employee, agent or any other person acting on those directions personally liable to any action, claim or demand whatsoever.

Section 42. Any reference that has been made to the court

Section 43. Establishment of the Rural Electrification and Renewable Energy Corporation Section 43(1) There is established the Rural Electrification and Renewable Energy Corporation herein referred to as the Corporation. Section 43(2)(a) suing and being sued; Section 43(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 43(2)(c) borrowing and lending money; and Section 43(2)(d) doing or performing all other things or acts for the furtherance of the provisions of the Act which may be lawfully done or performed by a body corporate.

Section 44. Functions and powers of the Corporation Section 44(1)(a) oversee the implementation of the Rural Electrification Programme; Section 44(1)(b) manage the Rural Electrification Programme Fund established under section 143 ; Section 44(1)(c) source additional funds for the Rural Electrification Programme and renewable energy; Section 44(1)(d) develop and update the rural electrification master plans in consultation with County Governments; Section 44(1)(e) develop and update the renewable energy master plan taking into account county specific needs and the principle of equity in the development of renewable energy resources; Section 44(1)(f) support the establishment of energy centres in the counties; Section 44(1)(g) establish framework for collaboration with County Governments in the discharge of its mandate; Section 44(1)(h) undertake on-farm and on station demonstration of wood-fuel species, seedling production and management; Section 44(1)(i) undertake feasibility studies and maintain data with a view to availing the same to developers of renewable energy resources; Section 44(1)(j) develop, promote and manage in collaboration with other agencies, the use of renewable...

Section 45. Board of the Corporation Section 45(1)(a) a Chairperson appointed by the President; Section 45(1)(b) the Principal Secretary in the Ministry responsible for energy or his representative; Section 45(1)(c) the Principal Secretary in the National Treasury or his representative; Section 45(1)(d) the Chief Executive Officer who shall be the Secretary to the Board; Section 45(1)(e) three members appointed by the Cabinet Secretary; and Section 45(1)(f) four other members appointed by the Council of County Governors. Section 45(2)(a) is a citizen of Kenya; Section 45(2)(b) holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, physical sciences, law, finance, economics, social sciences or energy; Section 45(2)(c) has at least seven years relevant professional experience; Section 45(2)(d) is a member in good standing of the relevant professional association; and Section 45(2)(e) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution. Section 45(3) The Chairperson and members under subsection (1)(e) and (f) shall be appointed at different times so that the respective expiry dates of their terms o...

Section 46. Chief Executive Officer Section 46(1) The Board shall appoint a Chief Executive Officer who shall be the chief executive of the Corporation and shall, subject to the directions of the Board, be responsible for the day to day management of the Corporation. Section 46(2) The Chief Executive Officer shall be appointed through a competitive recruitment process. Section 46(3)(a) is a citizen of Kenya; Section 46(3)(b) holds a degree from a university recognized in Kenya or its equivalent in the fields of engineering, physical sciences, law, finance, economics or energy; Section 46(3)(c) has at least seven years relevant professional experience; Section 46(3)(d) is a member in good standing of the relevant professional association; and Section 46(3)(e) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution. Section 46(4) The Chief Executive Officer shall be an ex-officio member of the Board but shall have no right to vote at any meetings of the Board.

Section 47. Conduct of business of the Corporation Section The conduct and regulation of the business of the Board shall be as provided in the First Schedule, but subject thereto, the Board shall regulate its own procedure and the procedure of any committee thereof.

Section 48. Terms of office, common seal, annual estimates and books of accounts Section The terms of office, vacancy of office, removal from office of the members of Board, the common seal, the financial year, annual estimates and books of accounts, records, audit and reports of the Corporation shall be as provided in the Second Schedule.

Section 49. Staff of the Corporation Section The Corporation shall in consultation with the Public Service Commission appoint such staff as it may require for the proper discharge of the functions of the Corporation under this Act, on such terms and conditions of service as the Board may determine.

Section 50. Remuneration of Board members Section The Corporation shall, in consultation with the Cabinet Secretary and upon the advice of the Salaries and Remuneration Commission, pay its members such remuneration, fees or allowances for expenses as it may determine from time to time.

Section 51. Protection from personal liability Section A matter or thing or act done by a member of the Board or any officer, employee or agent of the Corporation shall not, if the matter or thing is done bona fide for executing the functions, powers or duties of the Corporation, render the member, officer, employee, agent or any other person acting on those directions personally liable to any action, claim or demand whatsoever.

Section 52. Liability of the Corporation for damages Section This Act shall not relieve the Corporation of the liability to pay compensation or damages to any person for an injury to that person, that person's property or any of the persons' interests caused by the exercise of the powers conferred on the Board by this Act or by any other written law or by the failure, whether wholly or partially, of any works.

Section 53. Funds of the Corporation Section 53(1)(a) monies from the Rural Electrification Programme Fund established under section 143 ; Section 53(1)(b) such monies as may, from time to time, be appropriated by Parliament for that purpose; Section 53(1)(c) money's allocated from the consolidated energy fund for promotion and development of renewable energy initiatives; Section 53(1)(d) interest from bank deposits; and Section 53(1)(e) revenue from other sources including loans, grants, gifts or donations approved by the Cabinet Secretary. Section 53(2) There shall be paid out of the funds of the Corporation, all expenditure incurred by the Corporation in the exercise of its powers or the performance of its functions under this Act or any other written law.

Section 54. Establishment of the Nuclear Power and Energy Agency Section 54(1) There is established the Nuclear Power and Energy Agency hereinafter referred to as the Agency. Section 54(2)(a) suing and being sued; Section 54(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; and Section 54(2)(c) doing or performing all such other things or acts for the furtherance of the provisions of this Act or the performance of its functions which may lawfully be done by a body corporate.

Section 55. Headquarters Section 55(1) The headquarters of the Agency shall be in Nairobi. Section 55(2) Subject to the provisions of any other written law as to the meetings of the Agency, the Agency may hold its sittings at any place in Kenya.