Irrigation (General) Regulations

Section 1. Citation Section These regulations may be cited as the Irrigation (General) Regulations.

Section 2. Interpretation Section In these Regulations, unless the context otherwise requires- "Act" means the Irrigation Act (Cap. 347); "agency contract" means a legal agreement between parties on irrigation matters to enable modalities of provision of services; "association" means an irrigation water users’ association established and registered in accordance with these Regulations; "association management committee" means the body elected by the General Assembly to oversee and supervise the activities of an association; "authorised dependant" means, in relation to a permit holder, his father and mother, wives and such of his children as are unmarried and under the age of eighteen years; "by-­laws" means the by-­laws of an association or umbrella association; "capital replacement fund" means the capital replacement fund maintained under regulation 59; "cluster of irrigation schemes" means a group of irrigation schemes in a defined geographical area being implemented by an authorised agency; "County Executive Committee Member" means the County Executive Committee Member responsible for matters relating to irrigation; "county public scheme" means a public scheme constructed on pub...

Section 3. Scope of application Section These Regulations shall apply pursuant to and in the furtherance of section 3 of the Act.

Section 4. Purpose of the Regulations Section sustainable development, management, financing, provision of support services and effective regulation of the entire irrigation sector in Kenya;

Section 5. Guiding principles Section 5(1) All irrigation development shall be undertaken within the context of a national irrigation master plan, county irrigation master plan, investment plan and respective strategic plans to support sustainable food security and socio-­economic development of the country. Section 5(2)(a) compliance with all relevant statutory requirements; Section 5(2)(b) availability and reliability of irrigation water; Section 5(2)(c) efficient utilization of irrigation water; Section 5(2)(d) compliance to quality standards; Section 5(2)(e) participatory development; Section 5(2)(f) gender mainstreaming and social inclusion; Section 5(2)(g) economic, social and environmental sustainability; Section 5(2)(h) climate change resilience measures; and Section 5(2)(i) integration of ecosystem services.

Section 6. Supervision of schemes Section 6(1)(a) overseeing implementation of an irrigation scheme; Section 6(1)(b) organising and facilitating the registration of associations; Section 6(1)(c) training and other technical assistance to associations; and Section 6(1)(d) undertaking such other activities as may be specified in these Regulations. Section 6(2)(a) small scale, county public and county initiated irrigation schemes shall be supervised by the County Irrigation Development Unit; Section 6(2)(b) medium and large scale irrigation schemes including small scale schemes which traverse or straddle more than one county, shall be supervised by the Authority. Section 6(3) Where the Authority is the implementing agency, the Cabinet Secretary shall take up the supervisory roles. Section 6(4) Where a government agency is implementing a strategic irrigation project or programme on public land or a community-­based project, the agency shall comply with the provisions of these Regulations.

Section 7. Designation of an irrigation area Section 7(1) Pursuant to section 16(1) of the Act, an area that is deemed suitable for medium and large scale irrigation schemes may be designated as an irrigation area for purposes of the Act. Section 7(2)(a) location and suitability of the land; Section 7(2)(b) pre-­feasibility assessment as set out in Part A of the First schedule; Section 7(2)(c) the national government policy or strategic direction including food security and industrial crop production; Section 7(2)(d) impact of the development; Section 7(2)(e) number of people affected; Section 7(2)(f) environmental protection and conservation; and Section 7(2)(g) participatory process that is documented in case of communal land.

Section 8. Establishment of a national, public or strategic scheme Section 8(1) Pursuant to section 6(2)(c) of the Act, the Cabinet Secretary may establish a national scheme, public scheme or strategic scheme of any category for purposes of the Act. Section 8(2)(a) suitable irrigable land of strategic national importance; Section 8(2)(b) irrigation for food security; Section 8(2)(c) industrial crop production for agro-­industries; Section 8(2)(d) provision of livelihood for poor and vulnerable persons and groups; Section 8(2)(e) provision of security for investments in land improvements for irrigation; Section 8(2)(f) foreign exchange generation or import substitution; and Section 8(2)(g) regional development and employment generation. Section 8(3) Where the establishment of a scheme under this regulation relates to a public scheme meant for settlement, the beneficiaries shall be identified before establishment.

Section 9. Water for irrigation Section 9(1) Any individual or entity intending to carry out or is carrying out irrigation shall, where the availability and reliability of water resource is not guaranteed, implement water harvesting and storage measures capable of storing flood water sufficient to meet at least three months’ water demand where practical. Section 9(2) In addition to paragraph (1), consideration may be given to the use of recycled waste water subject to meeting water quality standards set out in Part A and Part B of the Second Schedule. Section 9(3) Any individual, entity or agency developing bulk water storage structures for irrigation may provide water to irrigation farmers at a tariff approved from time to time by the Cabinet Secretary in consultation with the Water Resources Authority. Section 9(4) Any individual or entity using water for irrigation shall be required to obtain water use rights and meet the attendant obligations in accordance with the Water Act (Cap. 372). Section 9(5) For public or national irrigation schemes meant for settlement and community-­based smallholder irrigation schemes, an irrigation water users association formed in accordance with t...

Section 10. Conceptualization of irrigation schemes Section pre-­feasibility study report or initial project identification concept note showing viability;

Section 11. Feasibility study Section 11(1) Any entity or individual seeking to develop an irrigation scheme shall undertake a feasibility study before commencing the construction of the irrigation scheme. Section 11(2)(a) hydrological and hydro-­geological survey report; Section 11(2)(b) topographical survey report of appropriate scale; Section 11(2)(c) soil survey report; Section 11(2)(d) agricultural development and marketing plan; Section 11(2)(e) irrigation development plan; Section 11(2)(f) economic and financial analysis report; Section 11(2)(g) environmental and social impact assessment report; Section 11(2)(h) organization, management and institutional details; Section 11(2)(i) preliminary irrigation and related infrastructure design and cost estimates; and Section 11(2)(j) community participation plan where applicable. Section 11(3) The feasibility study report shall be prepared in the form set out in Part B of the First Schedule and submitted to the supervising entity for review. Section 11(4) Where upon review under paragraph (3) the report is deemed to be satisfactory, the supervising entity shall, within thirty days of the determination, issue a "no objection" for the...

Section 12. Design and construction of irrigation schemes Section 12(1) An irrigation scheme shall be designed and the subsequent construction supervised by a qualified and experienced irrigation firm or professional from appropriate category as set out in Part A of the Third Schedule. Section 12(2) An irrigation scheme shall be constructed by the a contractor from the appropriate category as set out in Part B to the Third Schedule. Section 12(3) A contractor undertaking irrigation works shall be registered in accordance with the section 15 of the National Construction Authority Act (Cap. 118).

Section 13. Approval to construct a scheme Section 13(1)(a) made to the supervising entity depending on the category of the scheme; Section 13(1)(b) accompanied by an irrigation project design report and in case of medium and large scale irrigation schemes, a copy of a Gazette notice designating the area of construction as an irrigation area. Section 13(2) The details required in the irrigation project design report shall be based on the category and size of the irrigation scheme to be constructed and infrastructure standards set out under regulation 90. Section 13(3) Upon submission of the detailed design report in paragraph (2) as set out in Part C of the First Schedule, the Authority, County Irrigation Development Unit or other authorised agency shall ensure that it meets the technical requirements before approval. Section 13(4) Upon approval of the proposed irrigation scheme, an authorization certificate for construction shall be issued for commencement of construction of the irrigation infrastructure in the Form 4A set out in the Fourth Schedule.

Section 14. Completion report, operation and maintenance manual Section the irrigation scheme completion report in the form set out in Part D of the First Schedule; and

Section 15. Irrigation service providers Section 15(1) Any irrigation service providers shall be certified by the relevant regulatory bodies. Section 15(2) The Cabinet Secretary shall prepare and maintain an inventory of irrigation service providers in the form set out in Part A of the Fifth Schedule.

Section 16. Irrigation services Section 16(1)(a) pre-­feasibility studies; Section 16(1)(b) feasibility studies and detailed design; Section 16(1)(c) installation or construction of irrigation system; Section 16(1)(d) construction supervision; Section 16(1)(e) scheme administration and management; Section 16(1)(f) capacity building for irrigation stakeholders; Section 16(1)(g) irrigation extension services; Section 16(1)(h) marketing of irrigated produce; Section 16(1)(i) insurance and other financial services; and Section 16(1)(j) any other services as may be determined by the Authority from time to time. Section 16(2)(a) pre-­feasibility studies; Section 16(2)(b) feasibility studies and detailed design; Section 16(2)(c) installation or construction of irrigation system; Section 16(2)(d) construction supervision; Section 16(2)(e) scheme administration and management; and Section 16(2)(f) any other services as may be designated by the Cabinet Secretary from time to time. Section 16(3) An application for enlisting under paragraph (2) shall be made to the Cabinet Secretary in Form 4B set out in the Fourth Schedule. Section 16(4)(a) directly by Authority or the County Irrigation Devel...

Section 17. Irrigation development in counties Section 17(1) Pursuant to section 14 of the Act, a County Government may by notice in the Gazette establish a County Irrigation Development Unit for the better carrying out of its functions with respect to irrigation development. Section 17(2)(a) engineers and technicians from the fields of irrigation agriculture, civil engineering or their equivalent in related fields; and Section 17(2)(b) experts in the fields of survey and mapping or cartography, agriculture, socio-­economics or their equivalent in related fields.

Section 18. Development of community-­based smallholder schemes Section Any individual or entity developing or intending to develop a community-­based smallholder irrigation scheme shall comply with the provision of regulations 5, 6, 7, 9, 10, 11, 12, 13 and 14 and other relevant provisions of these Regulations.

Section 19. Irrigation licence Section 19(1) A person or entity shall not operate an irrigation scheme without obtaining an irrigation licence except where irrigation is undertaken at household level for subsistence purposes, and is by use of manual water abstraction and application. Section 19(2) Any association intending to or currently undertaking irrigation development and management within a public scheme meant for settlement shall obtain an irrigation licence. Section 19(3) The designation of an area as an irrigation area as provided under regulation 7 shall be a prerequisite for issuance of an irrigation licence in case of medium and large scale irrigation scheme.

Section 20. Application for a licence Section 20(1)(a) the application fee set out in the Sixth Schedule; Section 20(1)(b) the report of feasibility study undertaken by the professionals or firms specified under regulation 11; Section 20(1)(c) a copy of the Gazette notice designating the area as an irrigation area under regulation 7, where applicable; Section 20(1)(d) an approved detailed design report in Form 1C set out in the First Schedule taking into account the needs of various irrigation water users, including livestock and fish producers and the impact the irrigation scheme is likely to have on the environment; Section 20(1)(e) an environmental and social impact assessment licence issued by the National Environment Management Authority; Section 20(1)(e)(i) an environmental and social impact assessment licence issued by the National Environment Management Authority; Section 20(1)(e)(ii) an authorization to construct water abstraction works issued by the Water Resources Authority; Section 20(1)(e)(iii) water use permit issued by the Water Resources Authority; and Section 20(1)(e)(iv) the authority to construct by the National Construction Authority where applicable; Section 20...

Section 21. Licensing Unit Section 21(1)(a) receive and determine applications for irrigation licence; and Section 21(1)(b) monitor and verify compliance to the licence conditions; and Section 21(1)(c) enforce conditions attached to the licence for all irrigation schemes. Section 21(2) The Licensing Unit established under paragraph (1) shall have such number of officers, as are necessary for the proper performance of its functions.

Section 22. Compliance Section 22(1) An officer of the supervising entity, Licensing Unit and other government agencies may access any irrigation infrastructure and related sites to monitor compliance with any conditions of a licence and other provisions of these Regulations. Section 22(2) A person or entity operating an irrigation scheme shall not deny officers of the supervising entities and other government agencies access to irrigation infrastructure and related sites to perform the functions under paragraph (1).

Section 23. Register of licences Section The Cabinet Secretary shall maintain a register of all irrigation licences and licensed irrigation schemes.

Section 24. Validity of licences Section An irrigation licence shall be valid for a period of three years and may be renewed.

Section 25. Revocation of licences Section the licensee fails to comply with terms and conditions under which the licence was issued;

Section 26. Management principles Section 26(1) All irrigation schemes shall be managed in accordance with the principles set out in the Act and these Regulations. Section 26(2)(a) compliance with set rules of operation within an irrigation scheme; Section 26(2)(b) transparency, accountability, sustainability and efficiency; Section 26(2)(c) water saving practices are implemented throughout the irrigation process; Section 26(2)(d) optimal utilization of resources and assets for enhanced productivity; Section 26(2)(e) service orientation; and Section 26(2)(f) resilience and business continuity initiatives.

Section 27. Irrigation management Section 27(1) Irrigation management shall be through continuous adoption and application of best practices in sector planning, coordination and financing. Section 27(2) The management of a strategic, public or national irrigation schemes shall be through a framework defined at the time of establishment. Section 27(3) A public or national irrigation schemes meant for settlement shall be managed through scheme management committees, Dispute Resolution Committees and irrigation water users’ associations.

Section 28. Establishment of scheme management committees Section 28(1) Any scheme management committee shall be established in accordance with section 8(2)(c) of the Act. Section 28(2) Despite paragraph (1), a scheme management committee for national scheme or public scheme shall be established by the Cabinet Secretary through the Authority in accordance with section 19(1) of the Act. Section 28(3) Despite paragraph (1), a scheme management committee for a county public scheme shall be established by the respective Governor.

Section 29. Functions of a scheme management committee Section provide oversight on scheme development and management;

Section 30. Management committees for national or public schemes Section 30(1)(a) the County Commissioner of the respective County or his representative who shall be the chairperson; Section 30(1)(b) the Chief Executive officer of the Authority or his representative who shall be the secretary; Section 30(1)(c) the County Executive Committee Member or his representative; Section 30(1)(d) the County Executive Committee Member responsible for matters relating to agriculture or his representative; Section 30(1)(e) chairperson of the dispute resolution committee of the scheme; Section 30(1)(f) two representatives of the association or the umbrella association; and Section 30(1)(g) two representatives from other relevant farmer organizations in the scheme. Section 30(2) Where a scheme straddle two or more counties, each county shall constitute a scheme management committee established pursuant to paragraph (1) and a joint scheme committee established pursuant to paragraph (3). Section 30(3)(a) the County Commissioners of the respective Counties who shall be co-­chairs; Section 30(3)(b) one representative of the Authority; and Section 30(3)(c) four other persons from each individual count...

Section 31. Management Committees for county public schemes Section 31(1)(a) the County Executive Committee Member who shall be the chairperson; Section 31(1)(b) the County Executive Committee Member responsible for matters relating to county administration; Section 31(1)(c) the officer in-­charge of the County Irrigation Development Unit who shall be the secretary; Section 31(1)(d) the County Commissioner of the respective County or his representative; Section 31(1)(e) the Chief Executive officer of the Authority or his representative; Section 31(1)(f) two representatives of the irrigation water users’ association or the umbrella association; and Section 31(1)(g) two representatives from other relevant farmer organizations in the scheme. Section 31(2) The scheme management committee constituted under paragraph (1) shall be in the county in which the scheme is situated.

Section 32. Conduct of business of a scheme management committee Section 32(1)(a) develop a schedule of their meetings and conduct of business; Section 32(1)(b) meet on a quarterly basis; and Section 32(1)(c) hold their meetings at the premises of the scheme. Section 32(2) The scheme management committee may invite any professional, expert or stakeholder from a relevant field or entity to attend any of its deliberations. Section 32(3) Every scheme management committee shall constitute a land administration sub-­committee and such other special purpose sub-­ committees for the proper performance of its functions. Section 32(4)(a) the County Commissioner or his representative; Section 32(4)(b) County Lands Officer; Section 32(4)(c) the area Chief; Section 32(4)(d) two farmer representatives from the respective irrigation units; Section 32(4)(e) a representative of the Authority or County Irrigation Development Unit, as the case may be, managing the scheme who shall be the secretary; and Section 32(4)(f) the Ward Administrator of the respective administrative area.

Section 33. Powers in relation to crops at the scheme Section order the destruction of any crops planted in contravention of the irrigation schedule, designated cropping area or the provisions of these Regulations;

Section 34. Powers in relation to use of land Section direct him to take such steps as the scheme management committee may specify to remedy the effects of such negligence; or

Section 35. Land user permit Section 35(1) A person seeking to reside, occupy or carry out irrigation or related business in any part of a national scheme, public scheme or county public scheme meant for settlement shall apply for a land user permit permit from the Authority or County Irrigation Development Unit, as the case may be. Section 35(2) Where a person resides, carries out irrigation or related business or occupies an existing national scheme or public scheme, the tenant holding a licence shall be issued with a permit to occupy the land. Section 35(3) The holder of a permit issued under this regulation shall be a bona fide member of the registered association of the irrigation scheme. Section 35(4)(a) in the Form 4E set out in the Fourth Schedule; Section 35(4)(b) prepared in duplicate with the original issued to the permit holder and the duplicate retained by the Authority or County Irrigation Development Unit.

Section 36. Conditions for grant of a permit Section 36(1)(a) cause these Regulations to be read and explained to the applicant in a language which the applicant understands; Section 36(1)(b) give the applicant a copy of these Regulations; and Section 36(1)(c) obtain from the applicant, in Form 4F set out in the Fourth schedule, an acknowledgement that the applicant understands these Regulations and undertakes to observe them. Section 36(2)(a) devoting his time and attention to the cultivation and improvement of his holding; Section 36(2)(b) not allowing, without the written permission of the Authority or County Irrigation Development Unit, any other person to occupy his holding or to cultivate it on his behalf; Section 36(2)(c) maintaining the boundaries of his holding in a manner satisfactory to the Authority or County Irrigation Development Unit; Section 36(2)(d) maintaining, at all times, his holding and all water distribution, application and drainage infrastructure to the satisfaction of the Authority or County Irrigation Development Unit; Section 36(2)(e) participating to the satisfaction of the Authority or County Irrigation Development Unit, in maintenance of the irrigatio...

Section 37. Successor of a permit holder Section 37(1) A permit holder may, within reasonable time of being granted a permit and in writing to the Authority or County Irrigation Development Unit, nominate another person to succeed him as permit holder in the event of his death. Section 37(2)(a) the person has attained the age of eighteen years and if he has not attained that age, his guardian may, within one month of the permit holder’s death and with approval of the Authority or County Irrigation Development Unit, appoint a person to act on his behalf until the successor is of age; and Section 37(2)(b) the permit holder obtains the approval of the scheme management committee. Section 37(3) A permit holder may, at any time and in writing to the Authority or County Irrigation Development Unit, revoke or alter the nomination issued under this regulation. Section 37(4) Where a permit holder dies without nominating a successor in accordance with paragraph (1), the authorised dependant shall, within one month of the death of the permit holder and in writing to the Authority or County Irrigation Development Unit, nominate a successor who must be approved by the scheme management committe...

Section 38. Register of permits Section 38(1) The Authority or the County Irrigation Development Unit shall maintain a register of all permits issued under these Regulations. Section 38(2)(a) every permit holder, the number of his holding and the name of the authorised dependant; and Section 38(2)(b) any successor nominated by the permit holder pursuant to regulation 36(1) and the number of the holding in respect of which the successor has been nominated.

Section 39. Validity and renewal of a permit Section 39(1)(a) perpetual for permit holders under settlement schemes; and Section 39(1)(b) as per the contract for permit holders under lease agreement. Section 39(2) Subject to regulation 35, every permit may be renewed based on the defined validity period.

Section 40. Revocation of a permit Section 40(1)(a) comply with the condition or obligation within a reasonable period of time; or Section 40(1)(b) show cause, within the period specified in the notice, why the permit should not be revoked. Section 40(2)(a) is imprisoned for a term exceeding six months; or Section 40(2)(a)(i) is imprisoned for a term exceeding six months; or Section 40(2)(a)(ii) gives a six months’ written notice of his intention to surrender his permit; Section 40(2)(a)(iii) fails to comply or show cause as required under paragraph (1); Section 40(2)(b) a holding is vacated pursuant to regulation 36(7). Section 40(3) Where a permit is revoked due to imprisonment of the permit holder under paragraph (1)(a)(i), a successor may be nominated or appointed in accordance with regulation 36. Section 40(4) A person who is dissatisfied with the revocation of a permit under this regulation may appeal, in writing, to the Cabinet Secretary or the respective County Executive Committee Member, as the case may be.

Section 41. Procedure upon revocation of a permit Section 41(1) Where a permit is revoked under these Regulations, the scheme management committee shall constitute an ad-­hoc sub-­committee consisting of a representative of the Authority or County Irrigation Development Unit and one representative of both the out-­going and the incoming permit holder. Section 41(2) The ad-­hoc sub-­committee constituted under paragraph (1) shall assess the amount, if any, due to the outgoing permit holder or his authorised dependant in respect of capital and labour expended by him in improving the holding. Section 41(3) The Authority or County Irrigation Development Unit shall make arrangements for the payment of the amount assed under paragraph (2) by the incoming permit holder within such time as the Authority or County Irrigation Development Unit considers reasonable.

Section 42. Service fee Section 42(1) A permit holder shall pay to the Authority or County Irrigation Development Unit through the association, an irrigation service fee in respect of irrigation services on his holding. Section 42(2) The fee charged under this regulation shall be at the rate determined by the Authority or County Irrigation Development Unit and approved by the Cabinet Secretary or County Executive Committee Member, as the case may be, from time to time. Section 42(3) The fee under this regulation may be varied by the Cabinet Secretary or County Executive Member responsible for irrigation in consultation with county governments and other relevant stakeholders.

Section 43. Access pass Section 43(1) A person shall not drive a motor vehicle over any road, other than a public road, within a public scheme unless he possesses’ a valid an access pass issued by the Authority or County Irrigation Development Unit. Section 43(2) A person who fails to comply with any condition of the access pass issued under this regulation commits an offence and shall be liable on conviction to a fine not exceeding five thousand shillings, or to imprisonment for a term not exceeding one month, or to both.

Section 44. Housing within a scheme Section 44(1) The Authority or County Irrigation Development Unit may, where applicable, allocate to a permit holder a house to be occupied by him within the designated area in the scheme, or may authorise a permit holder to erect his own house. Section 44(2) A permit holder shall maintain his house and precincts to the satisfaction of the Authority or County Irrigation Development Unit and relevant agencies. Section 44(3) A permit holder shall not construct any building or undertake any other works of on his holding or elsewhere in the scheme without the prior written consent of the Authority or County Irrigation Development Unit. Section 44(4) Any person who erects a structure or building without the written consent of the Authority or County Irrigation Development Unit commits an offence and shall be liable on conviction to a fine not exceeding twenty thousand shillings, or to imprisonment for a term not exceeding six months, or to both.

Section 45. Control of livestock Section A permit holder shall not allow any of his livestock on any Part of the scheme which is closed to livestock or to cause damage to any crops, water installations, communications or other property.

Section 46. Emergency situations Section In the event of an emergency, the Authority or County Irrigation Development Unit, in consultation with the association, may order all permit holders to undertake emergency repair work in any part of the scheme.

Section 47. Management by associations Section 47(1) The management of a scheme by an association shall apply to community-­based smallholder schemes and public schemes meant for settlement except where the schemes are owned and managed by individual farmers. Section 47(2) Where an association has inadequate capacity to manage the major works of the irrigation infrastructure, such services may be provided by the Authority, County Irrigation Development Unit or other entity under agency contract as an irrigation water service provider. Section 47(3)(a) third party beneficiary contract; Section 47(3)(b) express contract; and Section 47(3)(c) best effort contract. Section 47(4) An agency contracted under paragraph (3) shall comply with the provision of regulation 76, 77, 78, 79 and 80.

Section 48. Functions of an association in management Section manage an irrigation scheme wholly or partly in its service area and provide irrigation services equitably and timely to members of the association;

Section 49. Formation of an association Section 49(1) Pursuant to section 20 (1) of the Act, the residents of a catchment area who are crop farmers, livestock producers, fish pond users, small industry entrepreneurs or otherwise use water for irrigation purposes serviced by a public or community-­based smallholder irrigation scheme may form an association which covers an entire scheme or that specific service area. Section 49(2)(a) possess land or have access rights to land on the basis of land holding system; and Section 49(2)(b) use the land with water supplied from a public or community-­based smallholder irrigation scheme developed by the National government, a County Government, private or other entities. Section 49(3) The procedure for formation of an association shall be as set out in Part A of the Seventh Schedule. Section 49(4) Where the residents are unable or fail to establish an association within twelve months after the coming into force of these Regulations or after commencement of operation of an irrigation scheme, the supervising entity may compel the residents to form the association.

Section 50. Service area of an association Section 50(1) The service area of an association shall comprise of a distinct irrigation system with a defined area of land that can receive irrigation water through the system operated by that association. Section 50(2) Each association shall operate within a defined service area. Section 50(3) The service area of an association shall not overlap with the service area of another association.