Irrigation Act

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

Section 2. Interpretation Section In this Act, unless the context otherwise requires— “agency contract” means a legal agreement creating a fiduciary relationship whereby the principal agrees that subsequent actions by the agent are binding as if the principal acted thereupon; "agriculture" has the meaning assigned to it under section 2 of the Agriculture and Food Authority Act (Cap. 317); "Authority" means the National Irrigation Authority established under section 7 ; "authorized" means authorized by or under this Act; "Board" means the Board of the Authority established under section 9 ; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to irrigation; "Chief Executive Officer" means the Chief Executive Officer of the Authority appointed under section 12 ; "commercial irrigation farmer" means a farmer who by means of irrigation grows crops primarily for sale; “Council of Governors” means the Council of County Governors established under the Intergovenmental Relations Act (Cap. 265F); "county irrigation development unit" means the unit or entity established by a county government to carry out irrigation matters under section 14 ; "D...

Section 3. Scope of application Section 3(1) The provisions of this Act shall apply to matters relating to the development, management, financing, provision of support services and regulation of the entire irrigation sector in Kenya. Section 3(2) Upon the commencement of this Act, no irrigation development management and regulation may be carried out in Kenya otherwise than under this Act. [Act No. 33 of 2022 , s. 3.]

Section 4. Act to prevail in irrigation matters Section The provisions of this Act shall prevail in case of any inconsistency between this Act and any other legislation in matters relating to irrigation.

Section 5. Guiding principles Section In discharging functions under this Act, the Cabinet Secretary, any State corporation established under this Act, county governments and any person or persons administering or applying this Act, shall be guided by the principles and values set out in Articles 10, 43, 60 and 232 of the Constitution.

Section 6. Role of national government Section 6(1) The Cabinet Secretary shall develop, manage and regulate irrigation throughout Kenya and to this extent shall ensure the effective exercise and performance by any authority or person under the authority of the Cabinet Secretary of their powers and duties in relation to irrigation and drainage, including water harvesting and storage for irrigation. Section 6(2)(a) formulate policies, make legislative proposals to Parliament, provide sector regulation, coordination and guidance, and monitoring and evaluation; Section 6(2)(b) develop general principles, guidelines and standards for promoting development and for the coordination of irrigation planning; Section 6(2)(c) establish, through a gazette notice, national, public or strategic schemes of any category as defined in this Act; Section 6(2)(d) promote the use of efficient irrigation systems across the country; Section 6(2)(e) subject to resource constraints, ensure availability and adequacy of water for irrigation; Section 6(2)(f) receive and determine applications for any irrigation projects, including issuance of irrigation licences for irrigation schemes; Section 6(2)(g) monitor...

Section 7. Establishment of the Authority Section 7(1) There is established an authority to be known as the National Irrigation Authority. Section 7(2)(a) suing and being sued; Section 7(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 7(2)(c) borrowing or lending money; Section 7(2)(d) entering into contracts; and Section 7(2)(e) doing such other acts necessary for the proper performance of the functions of the Authority. Section 7(3) The headquarters of the Authority shall be in Nairobi. Section 7(4) The Authority may establish such regional, county, catchments or sub-catchment or sub-county level offices as the Board, may consider necessary.

Section 8. Powers and functions of the Authority Section 8(1)(a) develop and improve irrigation infrastructure for national or public schemes; Section 8(1)(b) provide irrigation support services to private medium and smallholder schemes, in consultation and cooperation with county governments and other stakeholders; Section 8(1)(c) provide technical advisory services to irrigation schemes in design, construction supervision, administration, operation and maintenance under appropriate modalities, including agency contracts, as may be elaborated in regulations to this Act. Section 8(2)(a) undertake irrigation development, including infrastructure, in national or public and smallholder schemes, including schemes which traverse or straddle more than one county; Section 8(2)(b) in consultation with county governments, facilitate formation and strengthening of irrigation water users' associations at scheme level for operation, maintenance and management; Section 8(2)(c) in consultation with the county governments and other stakeholders facilitate formation and strengthening of scheme management committees at scheme level for management of the schemes; Section 8(2)(d) in consultation with...

Section 9. The Board of Authority Section 9(1)(a) a chairperson, who shall be appointed by the President subject to subsection (4); Section 9(1)(b) the Principal Secretary responsible for Irrigation or his representative; Section 9(1)(c) the Principal Secretary responsible for finance or his representative; Section 9(1)(d) the principal secretary responsible for Agriculture or his representative; Section 9(1)(e) the Principal Secretary for the time being responsible for water or his representative; Section 9(1)(f) two persons of opposite gender and from different regions, with knowledge and experience in matters relating to water, agriculture, irrigation or environmental studies, appointed by the Cabinet Secretary from a list of four nominees submitted by the Council of County Governors; Section 9(1)(g) one person with knowledge and experience in matters relating to civil engineering, economics, finance or rural development, appointed by the Cabinet Secretary from a list of three nominees submitted by a registered private sector membership organisation with a national outlook; and Section 9(1)(h) one person appointed by the Cabinet Secretary out of three persons nominated by the Na...

Section 10. Conduct of business of the Board Section The conduct of business of the Board shall be in accordance with the Schedule.

Section 11. Powers of the Board Section 11(1) The Board shall have all powers necessary for the proper performance of the functions of the Authority under this Act. Section 11(2)(a) secure continuing improvement of performance, protect the long term viability, and ensure fiscal discipline of the Authority; Section 11(2)(b) administer the assets of the Authority in such manner as best promotes the purposes for which the Authority is established; Section 11(2)(c) ensure protection of the assets and developments of the Authority; Section 11(2)(d) determine the provisions to be made for capital and recurrent expenditure and for the reserves of the Authority; Section 11(2)(e) receive any grants, gifts, donations or endowment and make legitimate disbursements therefrom; Section 11(2)(f) invest any funds of the Authority not immediately required for its purposes; Section 11(2)(g) undertake any other activity necessary for the fulfilment of any of the functions of the Authority.

Section 12. Chief Executive Officer Section 12(1) There shall be a Chief Executive Officer of the Authority who shall be appointed by the Cabinet Secretary on recommendation of the Board on a competitive basis and on such terms and conditions as may be specified in the instrument of appointment. Section 12(2)(a) is a citizen of Kenya; Section 12(2)(b) meets the requirements of leadership and integrity set out in Chapter 6 of the Constitution; Section 12(2)(c) holds relevant academic and professional qualifications including a university degree in engineering or agriculture or any field related to irrigation; and Section 12(2)(d) has at least fifteen years' experience in the management of a public or private institution, five of which should be at senior management level, or is a distinguished scholar in a discipline relevant to irrigation. Section 12(3) The Chief Executive Officer shall be responsible to the Board for the day-to-day management of the affairs of the Authority and for the performance of any other functions as the Board may direct, and shall be the accounting officer of the Authority. Section 12(4) The Chief Executive Officer shall hold office for a term of three year...

Section 13. Other staff Section Subject to the provisions in section 35 regarding transitional arrangements, the Authority may engage such other officers and staff as it may consider sufficient for the performance of its functions under this Act on such terms and conditions as are provided in approved establishment. [Act No. 33 of 2022 , s. 8.]

Section 14. Role of county government Section 14(1) Each county government may, within its area of jurisdiction, establish a county irrigation development unit for the better carrying out of its functions with respect to irrigation pursuant to Part 2 of the Fourth Schedule of the Constitution. Section 14(2) Each county government shall, for purposes of ensuring uniformity and national standards in the irrigation sub-sector, through its legislative and administrative action, implement and act in accordance with the national policy guidelines issued by the Cabinet Secretary and approved by both Houses of Parliament. Section 14(3)(a) formulate and implement county irrigation strategy in collaboration with relevant stakeholders, in line with national policies and strategies; Section 14(3)(b) develop and maintain an irrigation database and integrate systematic monitoring and evaluation; Section 14(3)(c) identify community-based smallholder schemes for implementation in line with national guidelines; Section 14(3)(d) mainstream irrigation related statutory obligations such as those that relate to the environment, water and health; Section 14(3)(e) provide capacity building for farmers an...

Section 34. Making of Regulations Section 34(1) The Cabinet Secretary may, in consultation with county governments, make Regulations, for the better carrying out of the purposes and provisions of this Act. Section 34(2) The regulations made under this section shall be approved by both Houses of Parliament. Section 34(3)(a) the management of national, public and other irrigation schemes; Section 34(3)(b) the standards of good on-farm water management; Section 34(3)(c) the regulation of, and tariffs payable for, the use of water on national, public and other irrigation schemes; Section 34(3)(d) the control of persons occupying any land comprising or forming part of a national irrigation scheme, the introduction of or the control of settlers on such land, the issue by the Authority as the case may be, of licenses or permits or leases to such persons or settlers, the revocation of such licenses and leases, and the terms and conditions which may be attached to such licenses and leases; Section 34(3)(e) the requirements, procedures and forms for licensing of irrigation schemes; Section 34(3)(f) the establishment, operations and governance of irrigation water users' associations, scheme m...

Section 15. Water for irrigation Section 15(1) The Cabinet Secretary shall, subject to water and other resource constraints, and in consultation with county governments, and other stakeholders ensure the adequacy and quality of water for irrigation purposes throughout the country. Section 15(2)(a) in consultation with the Water Resources Authority, put in place appropriate water use fees structures and make arrangements with the Water Resources Authority in respect of requisition of irrigation water in bulk; Section 15(2)(b) seek advice of the Water Resources Authority on the development of new irrigation water sources, including water harvesting, flood control and storage for irrigation; Section 15(2)(c) approve appropriate arrangements on inter-catchment transfers of irrigation water in consultation with county governments and Water Resources Authority; Section 15(2)(d) develop a mechanism on return on investment formula resulting from construction of irrigation schemes using public funds; and Section 15(2)(e) develop guidelines on private sector involvement at various stages of the irrigation project implementation cycle.

Section 16. Setting apart of land, access rightsetc. Section 16(1) The Cabinet Secretary may, in consultation with the National Lands Commission, the Board and county governments, and by notice in the Kenya Gazette , designate an area of land, for which an irrigation water permit may be issued by the Water Resources Authority and an irrigation license may be issued. Section 16(2) In respect of land, other than public land, in a national or public irrigation scheme, the Cabinet Secretary shall, in accordance with the law for the time being relating to the compulsory acquisition of land, take such steps as may be necessary to acquire the right, title or interest in such land and to vest it in the Authority for the purposes of this Act. Section 16(3) In the case of community land forming part of a national or public irrigation scheme, the Cabinet Secretary, on behalf of the Authority, may take the land on lease and on terms to be agreed between the Cabinet Secretary and the county government concerned. Section 16(4) In default of agreement between the Cabinet Secretary and the county government as to the terms of a lease under subsection (3) of this section, the relevant provisions of...

Section 17. Administrative and legal framework for water storage Section 17(1) The Cabinet Secretary shall in consultation with the Water Resource Authority Secretary, the National Water Storage and Harvesting Authority, the National Land Commission, the Council of Governors and other stakeholders prescribe administrative and regulatory frameworks within existing laws and regulations on water storage existing and future irrigating requirements. Section 17(2)(a) in accordance with Integrated Water Resources Management Principles; Section 17(2)(b) in accordance with agreements between irrigation water users and other stakeholders; and Section 17(2)(c) in such a manner as to reduce conflicts on water resources, protect the environment and public health and share water appropriately and equitably for multiple uses.

Section 18. Irrigation research, innovation and training Section 18(1) The Cabinet Secretary shall take legislative and administrative measures to ensure that irrigation research, innovation and training functions are carried out and appropriately co-ordinated. Section 18(2) Each county government may identify priority irrigation research, innovation and training areas and participate in irrigation research, innovation and training processes, in collaboration with the national government.

Section 19. Management of irrigation schemes Section 19(1) The Cabinet Secretary shall, through the Authority, oversee management of existing and new national or public schemes, except those under county governments, and particularly storage dams, intake, main and secondary systems as necessary. Section 19(2) The Cabinet Secretary, through the Authority, shall provide resources and direction for capacity building and technical services to irrigation water users associations, scheme management committees, dispute resolution committees and other farmer associations to enable them to progressively accept and assume full responsibility for management of national or public schemes under appropriate agency contracts with the National Government or county governments, as the case may be. Section 19(3) Despite any agency contracts between the National Government or county governments and any irrigation water users' association, scheme management committees, dispute resolution committees under subsection (2), all assets of the national or public irrigation schemes shall remain vested in the national government or county government as appropriate, which shall also retain regulatory oversight...

Section 20. Formation of irrigation water users’ associations Section 20(1) A resident of a catchment area who is a crop farmer, livestock producer, fish pond user, or small rural industry entrepreneur or otherwise uses water for irrigation purposes from a common water source may, together with other members or persons resident in the same area, form or join an irrigation water users' association. Section 20(2) Where an association pre-exists an irrigation scheme, the said association may be recognized as the bona fide association to operate and maintain a scheme established in the association's area of coverage, and more than one association may operate and maintain a scheme on appropriate and mutually agreed terms. Section 20(3) An association may, with the approval of the Cabinet Secretary, enter into an agreement with the National Government, a county government, a private sector institution or another farmers' association for the establishment, expansion, implementation, improvement, modernisation, operation or maintenance of a scheme subject to mandatory approvals in accordance with regulations. Section 20(4) Despite sub-section (3), an association may enter into cost-sharing...

Section 21. Finances of the Authority Section such monies as may be appropriated by the National Assembly for the purposes of the Authority;

Section 22. Annual estimates Section 22(1) At least five months before the commencement of each financial year, the Authority shall cause to be prepared estimates of the revenue and expenditure of the Authority for that year. Section 22(2)(a) the payment of salaries, allowances and other charges in respect of the staff of the Authority and the Board of the Authority as the case may be; Section 22(2)(b) the payment of pensions, gratuities and other charges in respect of retirement benefits which are payable out of the funds of the Authority; Section 22(2)(c) the acquisition, maintenance, repair and replacement of the equipment and other movable property of the Authority; Section 22(2)(d) the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance and the replacement of buildings or equipment, or in respect of such other matters as the Board may deem fit; Section 22(2)(e) estimated expenditure for development of infrastructure for the development of irrigation; and Section 22(2)(f) estimated expenditure for the provision of irrigation services and advisory support. Section 22(3) The annual estimates shall be approved by the...

Section 23. Accounts and Audit Section The Board shall ensure that proper books of account of the income, expenditure, assets and liabilities of the Authority are kept, and shall in this regard be subject to the provisions of the State Corporations Act ( Cap. 446 ).

Section 24. Annual reports Section 24(1) The Board shall, within a period of seven months after the end of each financial year, or within such longer period as the Cabinet Secretary may approve, submit to the Cabinet Secretary a report on the operations of the Authority during that year, and the auditor's report, together with the yearly balance sheet and such other statements of account as the Cabinet Secretary shall require, and the Board shall publish them in such manner as the Cabinet Secretary may specify. Section 24(2) A copy of every auditor's report, balance sheet and other statements of accounts submitted in accordance with subsection (1) shall be sent by the Authority to the Auditor- General, who may at any time examine the accounts, and the Auditor-General shall be entitled to require from the Authority and its auditors such further information and explanation as he may consider necessary. Section 24(3) The financial reports of the Authority with the yearly balance sheet and such other statements of account as the Cabinet Secretary may deem appropriate, together with the auditor's report and any report made by the Auditor-General, shall be submitted through the Principal...

Section 25. Dispute resolution Section 25(1) Disputes related to irrigation and drainage scheme development, management, water allocations and delivery, financing, operation and maintenance and other matters shall be resolved within the irrigation water users association or at irrigation scheme level wherever possible. Section 25(2) Each association which is legally registered shall have a Dispute Resolution Committee that consists of at least three members selected by its governing body. Section 25(3) Decisions regarding any dispute contemplated under this section shall be made by the relevant Dispute Resolution Committee within thirty days of the hearing of the dispute in question.

Section 26. Appeals Section Where the water users association or at the irrigation scheme level is unable to resolve a dispute, the same shall be referred to the Dispute Resolution Committee at the first instance to consider and determine the matter before the same is referred to Court.

Section 27. Monitoring and evaluation Section develop and implement a monitoring and evaluation system for the development, governance, management, regulation, provision and financing of irri gation at all levels, including assessment of inputs, outputs immediate outcomes and ultimate impacts based on the results; and

Section 28. Protection from liability Section No liability shall attach to the Authority or its Board or its members, officers, agents or servants for any loss or damage sustained by any person as a result of any act or omission done or omitted to be done in good faith and without negligence in the performance or exercise of any duty or power imposed or conferred by or under this Act.

Section 29. Wilful damage Section Any person who wilfully damages an irrigation infrastructure, water course, equipment or other appliances, or steals or otherwise unlawfully tampers or interferes with such infrastructure, watercourse, equipment, or other appliance, commits an offence and shall be liable upon conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding 24 months or to both such fine and imprisonment.

Section 30. Destructive practices Section engages in activities or practices which are destructive or potentially destructive to the catchment areas of a river or public water body supplying water to an irrigation scheme; or

Section 31. Setting fire Section sets or causes to be set on fire on an irrigation scheme or on any irrigated or drained farm, garden or plot; or

Section 32. Harmful chemicals Section Any person who applies or causes to be applied on an irrigation scheme, farm, garden or plot under irrigation any chemicals or substances prohibited under this Act or any other law for the time being in force, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term of five years or to both such fine and imprisonment.

Section 33. Abstraction of water Section Any person who abstracts water from an irrigation system or disrupts the distribution plan of a scheme commits an offence and shall be liable on conviction to a fine not exceeding two hundred and fifty thousand shillings or to imprisonment for a term of one year or to both such fine and imprisonment.

Section 35. Repeal of Irrigation Act, No. 13 of 1966 Section 35(1) The Irrigation Act (No. 13 of 1966) is repealed. Section 35(2)(a) all the funds, assets and other property, both movable and immovable which were vested in the National Irrigation Board shall, by virtue of this paragraph, vest in the Authority; Section 35(2)(b) all rights, powers and liabilities which were vested in, imposed on or enforceable against the National Irrigation Board shall, by virtue of this paragraph, be vested in, imposed on or enforceable against the Authority; Section 35(2)(c) any reference in any written law or in any document or instrument to the National Irrigation Board shall be construed to be a reference to the Authority; Section 35(2)(d) the annual estimates of the National Irrigation Board for the current financial year shall be deemed to be the annual estimates of the Authority for the remainder of that financial year: Section 35(2)(e) the administrative directions made by the National Irrigation Board or by the Cabinet Secretary which were in force before the commencement of this Act shall have force as if they were directions made by the Authority or the Cabinet Secretary under this Act;...