Water Act No43 of 2016, Kenya 2016.pdf

SPECIAL ISSUE

Kenta Gu:ctte Supplentent No. 164 (Acts No.43)

KENYA

REPUBLIC OF KENYA

GAZETTE SUPPLEMENT

ACTS, 201 6

NAIROBI, 20th September, 2016

CONTENT

Act-
PAGE

The Water Act,2016.... ....1019

iirntrornr cour{ciL r0R [lil REpoRIilG
REC ffiIVED

0t oct e0$
P.O. Box 10443-00100

NAIROBI, KENYA
TEL: 21 "'!231 FAX: 27 1 2694

pRINTED AND puBLlsHED sy tHE-covnnNN4ENT pRINTEn. r.r,qrnoer


I

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THE WATER ACT

No.43 of2016

Date of Assent: l3th September, 2016
Date of Commencenrcnt: By Notice

ARRANGEMENT OF SECTIONS

PART I_PRELIMINARY
Section

1-Short title and commencement.
2-lnterpretation.
3-Purpose of the Act.
4-Principles.

PART II_OWNERSHIP, USE AND MANAGEMENT
OF WATER RESOURCES

5 - Ownership of resources.
6-Regulation of the management and use of water

resources.

7-Rights to water resources.
8-National Public Water Works.
9 - Administration of National Water Resources.
10-National Water Resource Strategy.

PART III_REGULATION OF THE MANAGEMENT
AND USE OF WATER RESOURCES

Water Resources Authority
1 1-Establishment of the Authority.
12-Functions of the Authority.
13-Powers of the Authority.
14-Management Board.
15-General duties and responsibilities of the

Management Board.

16-Powers of the Management Board.
17 - Chief Executive Officer.
18-Removal of the Chief Executive Officer.
19-Employees of the Authority.


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20-Classification of water resources and determination

of quality objectives.

21 -National Monitoring and Information System.

22-Protection of catchment areas.
23-Conservation of ground water.

Basin areas
24-Basin areas.
25-Establishment of basin water resources committee.

26 - Basin water resources committee.
2l -Functions of the basin water resources committees.
28-Basin area water resources management strategy.
29-Establishment and functions of water resource users

associations.

National Water Harvesting and Storage Authority

30-Establishment of the National Water Harvesting and
Storage Authority.

31-Water Harvesting and Storage Board.
32-Powers and functions of the Water Storage

Authority.

33 - Chief Executive Officer.
34-Removal of Chief Executive Officer.
35 -Employees of the Water Storage Authority.

Regulation of Water Rights and Works

36-Water permit.
37-Exemptions.

38-Unauthorized construction and use of works.
39 - Easements for works.
40-Procedure for obtaining a permit.

4 1 - Conditions of permits.
42-Charges for water use.
43 - Considerations for the issue of permits.
44-Issue of permits in exceptional cases.
45-Permit to be linked to land or undertaking.


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2016 Wuter No.43
46- Variation ol' pernrit.
47-Power to require permit applications or re-

applications.

48-Cancellation of a pennit.

49-Cancellation or variation of a permit for failure to
observe terms and conditions.

50-Variation of permit following a hydrographical
survey.

5l-Variation of a permit at the request of the permit
holder.

52- Abandonment of permitted activities.
53 - Surrender of permits.
54- Register of permits.
55-Appeals.

Ground Water

56-Abstraction of ground water.

Entry on Land

57-Entry by permit holder.
58-Entry by the Authority.
59-Entry by licensee.
60-Manner of entry.
61 -Powers of inspectors.
62-Requirement to state name and address.

PART IY_WATER SERVICES
General

63-Right to clean and safe water.
64-National Water Services Strategy.

Water Works Development Agencies

65-Establishment of water works development
agencies.

66-Boards of the water works development agencies.
67 - Crrteria for water works development agencies.
68-Powers and functions of the water works

development agency.

69- Hand over of completed works.


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No.43 Woter 2016
The Water Services Regulatory Board

70-Establishment of the Regulatory Board.

7l -Regulatory Board.
J2-Powers and functions of the Regulatory Board.
73-Employees of the Regulatory Board.
74-Licensing.
75-Register of licensed water services providers.
76 -Revocation of licence.
77-Establishment of water service providers.

78-Responsibilities of the water services provider.

79-Board of a water services provider.
80-Member of the Board not to hold public office.
8l -Extension of services to rural or developing areas.
82-Appeals to the Regulatory Board.
83-County owned water services provider to hold

assets for the public.

84-Cabinet Secretary to make Regulations.
85 -Provision of water services.
86-Procedure and requirements for obtaining a licence.

87 - Application for a licence subject to public
consultation.

88-Licence not to confer any rights of proprietorship to
the licensee.

89-Licence fees.
90- Conditions of licence.
91-Duty to provide water services.
92 - Consumer complaints.
93 - Public Private Partnerships.
94-Special provisions with respect rural areas not

commercially viable.

95 -Variation of terms or conditions of the licence.
96-Areas of water service.
97-Clustering of areas of water service provision.
98-Variation of areas service.


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2016 Water
99-Provision of water services outside the area of

supply.

100-Supply of bulk water.
l0 I - Default by the licensee.
102- Special regulatory regime.
103 -Transfer of functions of licensee.
104-Agreements as to protection of sources of water,

etc.

105-Power of licensee to prohibit or restrict use of
water.

106-Duty to enforce Regulations on water services.
107-Execution of works for protection of water.
108-Control of trade effluent.
109- Sewerage services levy.
I 10-Compulsory acquisition of land.
111-Regulatory Board to establish information system.
112-Annual report.

PART Y_WATER SECTOR TRUST FUND
1 13 - Establishment of the Water Sector Trust Fund.
1l4-Objects of the Fund.
1 15 -Board of trustees of the Fund.
116-Functions of the Board of Trustees.
1 17-Monies of the Fund.
I l8-Sraff of the Fund.

PART VI_DISPUTE RESOLUTION
1 l9-Establishment of the Water Tribunal.
120-Staff of the Water Tribunal.
l2l -Jurisdiction of the Tribunal.
L22-Proceedings of the Tribunal.
123-Determination of appeals and disputes.
124- Appeals to the Land and Environment Court.
125-Decisions binding if no appeal within thirty days.

PART VII_FINANCIAL PROVISIONS
126-Funds of the Authority, Regulatory Board, Water

Harvesting and Storage Authority and Water
Works Development Agencies.

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No.43 Wuter 2016
l2l -Financial year.
128-Annual estimates.
129 - Accounts and audit.
130-Retention of charges and fees.

l3l -Funds collected by water services providers.
132-Income from water permits abstraction and water

user fees.

PART VIII_GENERAL PROVISIONS
I 33 -Service of notices.
134-Order, etc., to be in writing.
l3-5 - Authentication of documents.
136-Permit or licence to be evidence of power or

function.
I 37 - Protection from liability.
138-Application of Act to community land.
I 39 - Public consultation.
140 - Special powers in case of shortage of water.
l4l -No warranty implied by inspection.
1 42 - Regulations.
143 - Obstruction or pollution of watercourse or water

resource.

144- Remedy of defaults.
I 45 - Miscellaneous offences.
I 46 - Criminal proceedings.
l4l -General penalty.

PART IX _ TRANSITIONAL PROVISIONS
148-Transfer of functions, assets, liability and staff

from Water Resource Management Authority to
the Authority.

L49-Transfer of functions, assets, liability and staff
from National Water Conservation and Pipeline
Corporation to National Water Harvesting and
Storage Authority.

[5O-Transfer of functions, assets, liabilities and staff
from the Water Services Regulatory Board to the
Regulatory Authority.


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W(t l?r No.:13

151-Transf'er of functions. assets.
fiom the Water Services Trust
Sector Trust Fund.

152-Transler o[ functions, assets.
from Water Services Boards
Development Agencies.

liabilities and statf
Fund to The Water

liability and statf
to Water Works

153-Transfer of assets. right, liabilities. obligations.
agreements and other arrangements to county or
cross-county water service providers.

154-Public water service providers to continue to
operate.

155 - Transfer of functions, assets, liability and staff
from Water Appeals Board to Water Tribunal.

1 56-Repeals, savings and transitional provisions.

1 57 -Existing water rights.

158-Responsibility of a county government.

1 59 - Consequential amendments.
SCHEDULES

FIRST SCHEDULE _MEMBERSHIP AND
PROCEDURE OF BOARDS
AND COMMITTEES

SECOND SCHEDULE_CONDITIONS RELATING
TO CONSTRUCTION OF
WORKS

THIRD SCHEDULE _EASEMENTS

FOURTH SCHEDULE_ABSTRACTION OF
GROUND WATER


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THE WATER ACT. 2016

AN ACT of Parliament to provide for the regulation,
management and development of water resources,
water and sewerage services; and for other
connected purposes

ENACTED by the Parliament of Kenya as follows-
PART I_PRELIMINARY

1. This Act may be cited as the Water Act, 2016 and
shall come into operation on such a date as the Cabinet
Secretary responsible for matters relating to water may, by
notice in the Gazette. appoint, and different dates may be
appointed for the coming into operation of different
provisions.

2. (1) In this Act, unless the context otherwise
requires-

"Authority" means the Water Resources Authority
established under section I l;

"aquifer" means an underground geological formation
able to store and yield water;

"basin area" means an area designated as such under
section 24;

"basin water resources committee" means a water
basin organrzatron established under section 25;

"bulk water" means water supplied to a water services
provider by the water services provider making the supply;

"Cabinet Secretary" means the Cabinet Secretary
responsible for matters relating to water;

"catchment area" means an area that is part of a basin
designated as such under section 22',

"charges", in relation to the use of water from a water
resource, includes fees, levies and premiums of any kind;

"county government" means a county government
provided for under Chapter 11 of the Constitution
Kenya;

"county government executive" means the county
executive committee member responsible for matters
relating to water;

"cross-county water services provider" means a water

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Short title and
commencement

Interpretatlon

AS

of


2016

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\l'uter

services provider providing water services to rnore than
one county;

"easement" means the right to occupy so rnuch of the
land of another as may be necessary for or incidental to the
construction or maintenance of lvorks authorised, or the
exercise of rights conferred by a permit;

"Equalisation Fund" means the Equalisation Fund
provided for in Article 204 of the Constitution;

"Fund" means the Water Sector Trust Fund
established in section I l3;

"ground water" means the rvater of underground
streams, channels, artesian basins, reservoirs, lakes and
other bodies of water in the ground, and includes water in
interstices below the water table;

"inspector" means a person appointed by the Cabinet
Secretary. the Authority, a water basin resources
committee, or the Regulatory Board , to exercise the
powers of an inspector under this Act:

"in-stream habitat" includes the physical structure of a
water resource and the associated vegetation in relation to
the bed of the water course;

"international waters" means the ocean water beyond
territorial waters:

"Land and Environment Court" means the Land and
Environment Court as established under article 162 (2) of
the Constitution;

"landholder", in relation to land, means the registered
owner of the land or the person in whom the land is
otherwise vested by law, and includes-

(a) any person who by any established right, custom
or estate is entitled to be the holder or possessor
of land:

(b) any person lawfully holding or occupying land in
accordance with the provisions of any law
empowering the allotment of land upon the
promise of title, subject to the fulfilment by the
allottee of prescribed conditions; and

(c) any person to whom a mining lease or mining
location has been granted under the Mining Act,
2016,

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No. .13 l|Lrrcr 2016

"licence" rneans a licence in force undcr this Act;
"licensee" nleanb a water sen ice proi,'ider licensed by

the Regulatory Board under this Act'
"limits of supply", in relation to a $,ater undertaking,

means the limits within which the licensee is for the time
being authorised to supply water;

"Management Board" means the Board of the
Authority established under section l4;

"management of water resources" means the No l2.f 2016
development, augmentation, conservation or protection of a
water resource:

"peri-urban water services" means services provided
in peri-urban areas as shall be defined by the Regulatory
Board from time to time;

"permit" means a permit for the time being in force
under this Actl

"person" includes a company, association or other
body of persons rvhether incorporated or unincorporatedl

"pollution", in relation to a water resource, means any
direct or indirect alteration of the physical, thermal.
chemical or biological properties of the water resource so
as to make it-

(a) less fit for any beneficial purpose for which it is or
is reasonably be expected to be used; or

(b) harmful or potentially harmful to-
(i) the welfare, health or safety of human beings;
(ii) any aquatic or non-aquatic life or property; or
(iii) the environment:

"public consultation", in relation to any application
made, or action proposed to be taken under this Act, has
the meaning assigned to it in section 139:

"reasonable water use" means the use of water
without wastage;

"Regulatory Board" means the Water Services
Regulatory Board established under section 70;

"reserve". in relation to a water resource. means that
quantity and quality of water required-

(a) to satisfy basic human needs for all people who


2016

l02c)

ll:LtlL'r

are or may be supplied from thc water resource;
and

(b) to protect aquatic ecosystems in order to secure
ecologically sustainable development and nse of
the water resource:

"resource quality". in relation to a water resource,
means the quality of all the aspects of a water resource
including-

(a) the water quality stipulated for the reserve:
(b) the quantity. pattern. timing. water level and

assurance of in-stream flow;
(c) the physical. chemical and biological

characteristics of the water:

(d) the character and condition of the in-stream and
riparian habitat; and

(e) the characteristics, condition and distribution of
the aquatic biota;

"resource quality objectives", in relation to a water
resource, means the level to be achieved and maintained in
each aspect of resource quality for the water resource;

"riparian habitat" means the dynamic complex of
plant, animal and micro-organism communities and their
non-living environment adjacent to and associated with a
watercoursel

"rural water services" means services provided in
rural areas as shall be defined by the Regulatory Board;

"Salaries and Remuneration Commission" means the
Salaries and Remuneration Commission established under
Article 230 of the Constitution;

"sanitation" means the provision of on-site sanitation
services including latrines. septic tanks and conservancies
including the associated exhauster services;

"sector wide approach" means coordinated
development in the sector to achieve national goals,
effectiveness of funds and ownership of government
institutions including sector wide planning and
coordination, national monitoring and information and
national implementation concepts:

"sewerage services" means the development and
management of infrastructure for transport, storage,

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treatlnent waste water ori-sinating from centralized and
decentralized systems but shall not include household
sanitation fac i I ities ;

"spring" means water emerging from beneath the
surface of the ground other than as a result of drilling or
excavation operations ;

"state organ" has the meaning assigned in Article 260
of the Constitutionl

"stream" means the water contained in a watercourse,
and includes a river:

"supply of water in bulk" means a supply of water to
a licensee for distribution by or on behalf of the licensee
taking the supply;

"swamp" means any shallow depression in which
water collects either intermittently or permanently and
where there is a small depth of surface water or a shallow
depth of ground water and a slight range of fluctuation
either in the surface level of the water or of the ground
water level so as to permit the growth of aquatic
vegetation;

"transboundary waters" means water resources shared
between Kenya and another State;

"urban water services" means services provided in
urban areas as shall be defined by the Regulatory Board
from time to time:

"use of water", in relation to a water resource
includes, without any limitation to-

(a) abstraction. obstruction, impoundment or
diversion of water forming part of a water
resource;

(b) the discharge of materials or substances into a
water resourcel or

(c) any activity of a kind prescribed by Regulations
under this Act, in relation to a water resource;

"watercourse" means any natural channel or
depression in which water flows regularly or intermittently,
unless declared not to be a watercourse under this Act;

"water resource" means any lake, pond, swamp,
marsh, stream, watercourse, estuary, aquifer, artesian basin
or other body of flowing or standing water, whether above

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Wuter

or below the -qround, and includes sea water and
transboundary waters within the territorial jurisdiction of
Kenya;

"water right" means the right to have access to water
through a wuter permit:

"water resource management" rneans the
conservation, including soil and water conservation,
protection, development and utilization of water resources;
and

"water services" means any services of or incidental
to the supply or storage of water and includes the provision
of sewerage services;

"water services provider" means a company, public
benefits organization or other person providing water
services under and in accordance with a licence issued by
the Regulatory Board for the service areas defined by the
licence;

"water storage" means a location or structure where
water is stored for future use;

"Water Storage Authority" means the National Water
Harvesting and Storage Authority established in section 30;

"Water Storage Board" means the Board of the
National Water Harvesting and Storage Authority
established under section 31;

"Water Strategy" means the Integrated National
Water Services Strategy formulated by the Cabinet
Secretary in section 64;

"water table" means-
(a) impervious granular or detrital material, the upper

surface of the body of free water which fills all
openings in material that is sufficiently pervious to
permit percolation; and

(b) in fractured impervious rocks and in solution
openings, the surface at the contact between the
water body in the openings and the overlying
ground air;

"water user" means a person using water from a
water resource:

"water works development agencies" means the
agencies of the national government established under

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section 65:

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"works" meirns any structure, apparatus, contrivance,
device or thing for storing, recharging. treating. carrying.
conducting. providing or utilizing water or liquid waste,
but does not include hand utensils or such other
contrivances as may be prcscribed by Regulations made
under this Act.

3. The purpose of this Act is to provide for the
regulation, management and development of water
resources and water and serverage services in line with the
Constitution.

4. The Cabinet Secretary, the Authority, the
Regulatory Board, county govemments and any person
administering or applying this Act shall be guided by the
principles and values set out in Articles 10,43. 60 and232
of the Constitution.

PART II_OWNERSHIP, USE AND MANAGEMENT
OF WATER RESOURCES

5. Every water resource is vested in and held by the
national government in trust for the people of Kenya.

6. The Authority established in section 1l shall
serve as an agent of the national government and regulate
the management and use of water resources

7. Upon the commencement of this Act, no
conveyance, lease or other instrument shall convey, assure,
demise, transfer or vest in any person any property, right,
interest or privilege in respect of any water resource except
as may be prescribed under this Act.

8. (1) A national public water works means a water
works which has been designated by the Cabinet Secretary,
by notice published in the Gozette, as a national public
water works based on the fact that-

(a) the water resource on which it depends is of a
cross county in nature:

(b) it is financed out of the national government's
share of national revenue pursuant to the
provisions of the Public Finance Management Act,
2012:

(c) it is intended to serve a function of the national
governmentl or

2016

Purpose of the
Act.

Orvnershrp of
water resources

Rcgulatron of the
management and
use of water
re \ou rce \

Rights to water
resources

Natronal Pubhc
Water Works.

No l8 of2012


103 3

2016 Woter No.43
(d) it is intended to serve a function rvhich. by

agreement betrveen the national and county
government, has been transferred to the national
government.

(2) National public water works include-

(a) water storage;

(b) water works for bulk distribution and provision of
water services;

No. 6 of 2012.
(c) inter-basin water transfer facilities; and

(d) reservoirs for impounding surface run-off and for
regulating stream flows to synchronize them with
water demand patterns which are of strategic or
national importance.

(3) A national public water works for domestic use
shall, subject to the acquisition of a permit from the
Authority in case of inter basin water transfer, take
precedence over all other water works for the use of water
or the drainage of land.

(4) Subject to the Land Act, 2012, land required for
national public water works may be acquired in any
manner provided by law for the acquisition of land for
public purposes.

(5) The Cabinet Secretary may, after reasonable notice
to any landholder concerned, cause to be constructed and
maintained upon any land such works as the Cabinet
Secretary may consider necessary for the purposes of any
national public water works.

(6) Compensation on just terms shall be payable by
the Government to the owner of the land on which any
such works are constructed, but in assessing the amount of
compensation payable, the Cabinet Secretary shall take into
consideration any benefit accruing to the land by the
construction of the works and any adverse effect on the
land caused by the works, as the case may be.

(7) The Cabinet Secretary shall make Regulations for
the better carrying into effect of subsections (5) and (6).

9. Every person has the right to access water
resources, whose administration is the function of the

Admrnistration of
National Water
Resources.


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No.43 Wuter 2016
national government as stipulated in the Fourth Schedule to
the Constitution.

10. (l) The Cabinet Secretary shall, within one year of Natronalwater
the commencement of this Act and every five years ff'","'J"
thereafter, following public participation, formulate a
National Water Resource Strategy.

(2) The object of the National Water Resource
Strategy shall be to provide the Government's plans and
programs for the protection, conservation, control and
management of water resources.

(3) The National Water Resource Strategy shall
contain, among other things, details of-

(a) existing water resources and their defined riparian
areas;

(a) measures for the protection, conservation, control
and management of water resources and approved
land use for the riparian area;

(b) minimum water reserve levels at national and
county levels;

(c) institutional capacity for water research and
technological development;

(d) functional responsibility for national and county
governments in relation to water resources
management; and

(e) any other matters the Cabinet Secretary considers
necessary.

(4) The Cabinet Secretary shall-
(a) prepare and issue an annual report on the state of

national water resource strategies in Kenya; and
(b) may direct any lead agency to prepare and submit

to it a report on the state of national water
resources under the administration of that lead
agency.

(5) The Cabinet Secretary shall review the National
Water Resource Strategy every three years.

PART III_REGULATION OF THE MANAGEMENT
AND USE OF WATER RESOURCES

Water Resources Authority
11.(l) There is established the Water Resources Establtshmentor

AuthoritY.
the AuthoritY'


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2016 Water No.43
(2) The Authority is a body corporate with perpetual

succession and a common seal and shall in its corporate
name be capable of -

(a) suing and being sued;

(b) taking, purchasing or otherwise acquiring,
holding, charging and disposing of movable and
immovable property; and

(c) doing or performing all such other things or acts
for the proper discharge of its functions under this
Act and any other written law as may be lawfully
done or performed by a body corporate.

12.The functions of the Authority are to-
(a) formulate and enforce standards, procedures and

Regulations for the management and use of water
resources and flood mitigation;

(b) regulate the management and use of water
resources;

(c) enforce Regulations made under this Act;

(d) receive water permit applications for water
abstraction, water use and recharge and determine,
issue, vary water permits; and enforce the
conditions of those permits;

collect water permit fees and water use charges;

determine and set permit and water use fees;

(g) provide information and advice to the Cabinet
Secretary for formulation of policy on national
water resource management, water storage and
flood control strategies;

(h) coordinate with other regional, national and
international bodies for the better regulation of the
management and use of water resources; and

(i) advise the Cabinet Secretary generally on the
management and use of water resources.

13. (1) The Authority shall have all the powers
necessary for the execution of its functions under this Act.

(2) Without prejudice to the generality of subsection
(1), the Authority shall have the power to-

(e)

(0

Functlons of the
Authoflty.

Powers of the
Authority.


1016

No.43 Wutcr 2016
(a) source and receive tunding for the activities of the

Authority:

(b) collect, analyze and disseminate information on
water resourcesl

(c) monitor compliance by water users with the
conditions of permits and the requirements of the
Act;

(d) issue permits for inter-basin water transfer; and
(e) delegate regulatory functions to the basin water

resource committees provided for under section
25.

14. (1) The powers and functions of the Authority Manasement
shall be exercised and performed under the direction of a B.ard
Management Board, which consists of-

(a) a chairperson, who shall be appointed by the
President; and

(b) the Principal Secretary responsible for matters
relating to finance or his representative;

(c) the Principal Secretary responsible for matters
relating to water or his representative;

(d) the Principal Secretary responsible for matters
relating to the environment or his representative;

(e) the Principal Secretary responsible for matters
relating to land or his representative;

(0 four other members, who shall be appointed by the
Cabinet Secretary; and

(c) the Chief Executive Officer.

(2) The Chief Executive Officer shall be an ex officio
member of the Management Board with no voting rights.

(3) The chairperson and members of the Management
Board shall hold relevant professional qualifications and
experience and shall be appointed following an open and
competitive recruitment process.

(4) The First Schedule has effect with respect to the
membership and procedure of the Management Board.

15. The Management Board shall be responsible for General duttes and
overseeing the opeiations of the Authority with the goal [:',]X'"':;:]'"'":t
Of- Board.


l0-37

2016 Water
(a) securing continuing improvements

pertormance;

(b) protecting the long term viability of the Authority;
and

(c) ensuring fiscal discipline of the Authority.

16. (1) The Management Board shall have all powers
necessary for the proper performance of the functions of the
Authority under this Act.

(2) Without prejudice to the generality of the foregoing,
the Management Board shall have power to-

(a) administer the assets of the Authority in such
manner as best promotes the purpose for which the
Authority is established ;

(b) ensure protection, where necessary, of the assets
and developments of the Authority;

(c) determine the provisions to be made for capital
and recurrent expenditure and for the reserves of
the Authority;

(d) receive any grants, gifts, donations or endowments
and make legitimate disbursements there from;

(e) invest any funds of the Authority not immediately
required for its purposes;
delegate any of its powers; and
undertake any activity necessary
fulfillment of any of the functions
Authority.

17, (1) The Cabinet Secretary shall, on the
recommendation of the Management Board, appoint a
Chief Executive Officer of the Authority on such terms and
conditions as may be specified in the instrument of
appointment.

(2) A person is qualified for appointment as Chief
Executive Officer if that person-

(a) is a crtizen of Kenya;
(b) holds a degree from a university recognized in

Kenya;

(c) has at least ten years relevant work experience
with at least five years in a senior management
position either in a public service or private sector
organization; and

of
No.43

Powers of the
Management
Board.

Chief Executive
Officer.

(0
(e) for the

of the


I 038

No.43 Wuter 2016
(d) meets the requirements of leadership and integrity

set out in Chapter Six of the Constitution.

(3) The Chief Executive Officer is the accounting
ollicer of the Authority.

(4) The Chief Executive Officer is subject to the
direction of the Management Board and is responsible to it
for the-

(a) implementation of the decisions of the
Management Board;

(b) day to day management of the affairs of the
Management Board;

(c) organization and management of the employees;
and

(d) any other function that may be assigned by the
Management Board.

(5) The Chief Executive Officer shall hold office for a
term of five years and is eligible for re-appointment for one
further term upon exemplary performance.

18. The Chief Executive Officer may be removed Removalorthe
from office by the Cabinet Secreiary on the Chief Executtve
recommendation of the Management Board, in accordance
with the terms and conditions of service.

19. (l) The Authority may appoint such other Emploveesorthe
employees as it may ionsider ,"..rru.y for the Authoritv
performance of its functions under this Act.

(2) The terms and conditions of service of the
employees of the Authority shall be determined by the
Cabinet Secretary responsible for public service on the
advice of the Salaries and Remuneration Commission.

20. (1) The Authority shall prescribe the criteria for classtr,cat,onor
classifying water ."rou.."i for the purpose of determining ;'#"j"t'#;T."
water resources quality objectives for each class of water of qualrtv
resource. oblecttves'

(2) The prescribed classification criteria shall take into
account-

(a) trans-boundary considerations;
(b) strategic functions served by the water resource;


I 039

2016 Wdter No.43
(c) the use or potential for use of the water resource

for inter-basin transfers:
(d) ecological functions of the water resource: and

(e) vulnerability to degradation or depletion and other
related factors.

(3) The Authority shall, by notice in the Gazette-
(a) classify each water resource in accordance with

the prescribed classification criteria;

(b) specify the resource quality objectives for a water
resource of the class to which it belongs; and

(c) specify the requirements for achieving the
objectives, and the dates from which the
objectives will apply.

(4) All State organs shall when exercising any
statutory power or performing any statutory duty, take into
account and give effect to the resource quality objectives
determined under this section in respect of a water
resource.

21. (l) The Authority shall ensure that there is in
place a national monitoring and geo referenced information
system on water resources.

(2) The Authority may require any person, within a
reasonable time or on a regular basis, to provide it with
specified information, documents, samples or materials in
relation to the system referred to in subsection (1).

(3) Subject to Article 35 of the Constitution, a
member of the public on payment of the prescribed fee
shall-

(a) have access to any specific information contained
in any national information system; and

(b) be supplied with a copy of any document
contained in the information system which is
accessible to the public.

22. (l) Where the Authority is satisfied that in order
to conserve a vulnerable water resource, special measures
are necessary for the protection of a catchment area or a
part thereof, it may by Order published in the Gazette
declare such catchment area to be a protected area.

(2) The Authority may impose such requirements or
regulate or prohibit such conduct or activities, in or in

National
Monitoring and
Information
System.

Protection of
catchment areas


No.43

1040

Water

relation to the protected catchment area as the Authority
may consider necessary for the protection of the area and
its water resources.

23. (l) Where the Authority is satisfied that, in any
area, special measures for the conservation of ground water
are necessary in the public interest for-

(a) the protection of public water or water supplies
used for industry, agriculture or other private
purposes;

(b) the conservation of the water resources of the
aquifer of the ground water resources; or

(c) ecological reasons, it may by Order published in
the Gazette, declare the area to be a ground water
conservation area.

(2) The Authority may impose such requirements or
prohibit such conduct or activities in relation to a
groundwater conservation area as it may consider
necessary for the conservation of the ground water.

(3) The Cabinet Secretary may make Regulations for
the better carrying into effect of this section.

Basin Areas

24. (l) The Authority shall in consultation with the
Cabinet Secretary by notice published in the Gazette,
designate a defined area from which rain water flows into a
watercourse to be a basin area for the purposes of this Act.

(2) The Authority may designate a basin area lying
wholly or partly within another basin area as a sub-basin.

25. (l) The Cabinet Secretary shall by notice
published in the Gazette establish a basin water resources
committee for each respective basin area provided for
under section 24.

(2) The Cabinet Secretary shall assign a name to each
basin water resources committee established in accordance
with subsection (1).

(3) A basin water resources committee shall be
responsible for the management of the water resources
within a respective basin area.

(4) A basin water resources committee shall operate
under the Regulations made by the Authority.

20t6

Conservation of
ground water

Basrn areas

Establishment of a
basrn water
resources
committee.


10-+ I

2016 Water No.43
26. (l) A basin water resources committee shall Basrn *'ater

consist of- :"#H,::"
(a) not less than four and not more than seven

members appointed by the Authority in
consultation with the Cabinet Secretary; and

(b) a representative of each county government whose
area falls within the basin appointed by the
appointing authority after approval by the county
assembly.

(2) The Cabinet Secretary shall, by notice in the
Gazette, appoint the chairperson from amongst the
members appointed under subsection (1) (a), who shall
hold office for a period of three years.

(3) The persons appointed under subsection (1Xa)
must be residents of the respective basin area and shall
include-

(a) a representative of a ministry responsible for
matters relating to water resources;

(b) a representative of farmers or pastoralists within
the basin area concerned;

(c) a representative of a public benefits organisation
engaged in water resources management
programmes within the basin area concerned; and

(d) a representative of the business community
operating within the basin area concerned.

(4) In appointing the members in subsection (1), the
Authority shall ensure that at least three members have
technical expertise in matters relating to water.

(5) Paragraphs 2, 3,5,6, J,9, Il, 12 and 13 of the
First Schedule shall apply in relation to the members and
procedure of the basin water resources committee.

(6) The Authority shall facilitate the activity of the
basin water resources committee by making available
secretariat services, logistical and administrative support.

(7) The salaries, allowances and other expenses of the
committee referred to in subsection (1) shall be determined
by the Cabinet Secretary responsible for public service on
the advice of the Salaries and Remuneration Commission.


1042

No.43 Water 2016
27. The powers and functions of the basin water Functronsofthe

resources committee shall be to advise the Authority and l:;:,:;j"'
county governments, at the respective regional office, eonrmittees
concerning-

(a) conservation, use and apportionment of water
resources;

(b) the grant, adjustment, cancellation or variation of
any permitl

(c) protection of water resources and increasing the
availability of water;

(d) annual reporting to the users of its services and the
public on water issues and their performance
within the basin area;

(e) collection of data, analyzing and managing the
information system on water resources;

(f1 review of the basin area water resources
management strategy;

(g) facilitation of the establishment and operations of
water resource user associations;

(h) flood mitigation activitiesl
(i) information sharing between the basin area and the

Authority;

0) the equitable water sharing within the basin area
through water allocation plans; and

(k) any other matter related to the proper management
of water resources.

28. (1) Upon the designation of a basin area, the Basinareawater
Authority shall prescribe requirements and a time frame for resources
the formulation of a basin area water resources [#i:ff,"""'
management strategy.

(2) The basin area water resources management
strategy shall be formulated by a basin water resources
committee in consultation with the Authority and the
county governments whose areas of jurisdiction lie within
the basin area.

(3) A basin area water resources management strategy
shall-

(a) be consistent with the national water resources
policy;


10.+3

2016 Wuter
(b) put in place measures to fulfil the water resource

quality objectives for each class of water resource
in the basin area;

(c) describe the measures to be put in place for the
sustainable management of water resources of the
basin areal

(d) contain a water allocation plan for the water
resources of the basin area;

(e) provide systems and guidelines to enable the users
of water resources within the basin area to
participate in managing the water resources of the
basin area; and

(f) provide a strategy for financing the management
of the water resources of the basin area.

(4) The Cabinet Secretary shall publish the strategy
referred to in subsection (1) in the Gazette.

29. (l)Water resource users associations may be
established as associations of water resource users at the
sub-basin level in accordance with Regulations prescribed
by the Authority.

(2) A water resource users association shall be a
community based association for collaborative
management of water resources and resolution of conflicts
concerning the use of water resources.

(3) Without prejudice to the generality of section 28
(3) (e), the basin area water resources management strategy
shall facilitate the establishment and operation of water
resources users associations.

(4) The basin water resources committees may
contract water resource users associations as agents to
perform certain duties in water resource management.

National Water Harvesting and Storage Authority

30. ( I ) There is established the National Water
Harvesting and Storage Authority.

(2) The Water Storage Authority established under
this section shall be a body corporate with perpetual
succession and a common seal, capable of suing and being
sued in its own name and doing all things that a corporation
may lawfully do.

No.43

Estabhshment and
functions of water
resource users
assocratrons-

Establishment of
the National
Water Harvesting
and Storage
Authorrty.


t0-1-+

No.43 Wutcr 2016
31. (1) The powers and functions of the Water waterHarvestr,s

Storage Authority shall be exercised and performed under ;:1,T"**"
the direction of a Water Harvesting and Storage Board
which shall consist of-

(a) a chairperson, who shall be appointed by the
President;

(b) the Principal Secretary responsible for matters
relating to water;

(c) the Principal Secretary responsible for matters
relating to land;

(d) the Principal Secretary responsible for finance;
(e) five other members, who shall be appointed by the

Cabinet Secretary; and

(0 a Chief Executive Officer.
(2) The Chief Executive Officer is afl ex fficio

member of the Water Storage Board with no voting rights.
(3) The First Schedule shall have effect with respect to

the membership and procedure of the Water Storage Board.

32. (l) The functions and powers of the Water Pos'ers and
Storage Authority shall be to- {,}::j'.'fl:jJ:"

(a) undertake on behalf of the national government,
Authorttv.

the development of national public water works
for water resources storage and flood control;

(b) maintain and manage national public water works
infrastructure for water resources storage;

(c) collect and provide information for the
formulation by the Cabinet Secretary of the
national water resources storage and flood control
strategies;

(d) develop a water harvesting policy and enforce
water harvesting strategies:

(e) undertake on behalf of the national government
strategic water emergency interventions during
drought; and

(0 advise the Cabinet Secretary on any matter
concerning national public water works for water
storage and flood control.

(2) The Water Storage Authority may appoint agents
for the operation, management, maintenance and safety of
any storage infrastructure that it has developed.


104-5

2016 Wutcr No.43
(3) The Water Storage Authority shall have such

other powers and functions as may be conferred or imposed
on it by this or any other Act.

33. (1) The Cabinet Secretary, on the recommendation ChrerErecuttve
of the Water Storage Board may appoint the Chief orrrcer
Executive Officer of the Water Storage Authority, on such
terms and conditions as the Cabinet Secretary for public
service may determine on the advice of the Salaries and
Remuneration Commission.

(2) A person is qualified for appointment as Chief
Executive Officer if that person-

(a) is a citizen of Kenya;
(b) holds a degree from a university recognized in

Kenya;

(c) has at least ten years' experience, five of which
should be in a senior management position in a
public or private organisation; and

(d) rneets the requirements of leadership and integrity
set out in Chapter Six of the Constitution.

(3) The Chief Executive Officer shall be the
accounting officer of the Water Storage Authority.

(4) The Chief Executive Officer is subject to the
direction of the Water Storage Board and is responsible to
it for the-

(a) implementation of the decisions of the Water
Storage Board;

(b) day to day management of the affairs of the Water
Storage Board;

(c) organization and management of the employees;
and

(d) any other function that may be assigned by the
Water Storage Board.

(5) The Chief Executive Officer shall hold office for a
term of five years and is eligible for re-appointment for one
further term.

34. The Chief Executive Officer may be removed Removalorthe
from office by the Cabinet Secretary on the chierExecutive
recommendation of the Water Storage Board, in
accordance with the terms and conditions of service.


No.43

1046

Waler

35. (1) The Water Storage Authority may appoint such
other employees as it may consider necessary for the
performance of its functions under this Act.

(2) The Cabinet Secretary responsible for matters
relating to public service shall determine the terms and
conditions of service of the employees of the Water
Storage Authority on the advice of the Salaries and
Remuneration Commission.

Regulation of Water Rights andWorks

36. A permit is required for any of the following
purposes-

(a) any use of water from a water resource, except as
provided by section 37;

(b) the drainage of any swamp or other land;
(c) the discharge of a pollutant into any water

resource; and

(d) any other purpose, to be carried out in or in
relation to a water resource, which is prescribed by
Regulations made under this Act to be a purpose
for which a permit is required.

37. (l) A permit is not required-
(a) for the abstraction or use of water, without the

employment of works, from any water resource
for domestic purposes by any person having
lawful access to the water resource;

(b) for the abstraction of water in a spring which is
situated wholly within the boundaries of the land
owned by any one landholder and does not
naturally discharge into a watercourse abutting on
or extending beyond the boundaries of that land;
or

(c) for the storage of water in, or the abstraction of
water from a reservoir constructed for the purpose
of such storage and which does not constitute a
water course for the purposes of this Act.

(2) Subsection (l) does not apply in relation to any
activity mentioned in that subsection which is carried on in
prescribed circumstances and the relevant law or regulation
made under this Act requires a permit for the carrying on of
that activity in those circumstances.

2016

Employc-cs of thc
Water Storage
Authonty,

Water permlt

Exemptrons


20t6

t041

Waler

(3) Regulations made under this Act may make
provisions with respect to the use of water from a water
resource in any manner for which a permit is not required.

(4) Without prejudice
(3), such Regulations may-

(a) prohibit any such
circumstances: or

to the generality of subsection

use of water in prescribed

(b) require the consent or permission of the Authority
for any such water use of a prescribed kind or
description.

38. (1) A person who-
(a) without a permit, constructs or employs works for

a purpose for which a permit is required; or

(b) being the holder of a permit, constructs or employs
any such works in contravention of the conditions
of the permit, commits an offence.

(2) The holder of a permit authorising the construction
of works who, without the permission of the Authority
takes water from any water resource-

(a) by means of any works not authorised by the
permit; or

(b) before the whole of the works authorised by the
permit have been certified, in accordance with the
conditions of the permit, commits an offence.

39. (1) The holder of a permit which authorises the
construction of works that would or a portion of works
which would when constructed, be situated upon land not
held by the permit holder shall, subject to any relevant law,
acquire an easement on, over or through the land on which
the works would be situated and, unless the works have
previously been lawfully constructed, shall not construct or
use the works unless he or she has acquired such an
easement.

(2) The provisions of the Third Schedule shall apply
in respect of the acquisition of, and subsequent rights
pertaining to or against, any such easement.

40. (1) An application for a permit shall be made to
the Authority at the applicable basin area.

No.43

Unauthorrzed
construction and
use of works

Easement for
works.

Procedure for
obtarnrng a
permit.


I 048

Wtttar 2016No.43

(2) An application under subsection (1) shall be made
by completing and lodging the form prescribed by the
Authority, together with-

(a) such information in support of the application as
the Authority may require; and

(b) the prescribed fee.

(3) The application shall be determined within six
months of receiving an application which meets the
requirements of the Authority.

(4) An application for a permit shall be the subject of No.8 or teee.
public consultation and, where applicable, of
environmental impact assessment in accordance with the
requirements of the Environmental Management and Co-
ordination Act,1999.

(5) Any person opposed to the grant of a permit may
object in writing to the Water Tribunal within a period of
thirty days after publication of the notice of the application.

(6) The Authority must within thirty days notify the
applicant and any person who may have objected to the
grant of the application of its decision and in the event of a
rejection, the reasons for the rejection.

(7) Where an application made in accordance with
this section is not determined by the Authority in
accordance with subsection (3), any fee paid by the
applicant under subsection (2Xb) shall be refunded to the
applicant.

41. (1) A permit shall subject to subsection (2), be
subject to-

(a) conditions that may be prescribed by Regulations
under this Act; and

(b) such other conditions, not inconsistent with the
conditions so prescribed, that the Authority may
impose by endorsement on, or by an instrument in
writing annexed to the permit.

(2) The provisions of the Second Schedule shall be
conditions on every permit which authorises the
construction of works.

(3) The Regulations under subsection (1)(a) may,
among other things-

Condrtrons of
permits.


1049

2016 ll'ater No.43
(a) require the imposition of prescribed conditions in

prescribed circumstances;

(b) require the payment by the permit holder of
prescribed fees in respect of the exercise of rights
under the permit: or

(c) provide that a contravention of any specified
conditions of a permit under this Act, shall
constitute an offence and provide for
corresponding penalties.

(4) The imposition of a penalty under this Act shall
not prevent any person who has suffered loss, damage or
injury by reason of the contravention of this Act from
pursuing any other remedy for the recovery of damages.

42. (1) The conditions on a permit may require that
on the issue of the permit and at prescribed intervals
thereafter, the permit holder shall pay charges to the
Authority for the use of water in accordance with the terms
of the permit and the Regulations prescribed by the
Authority.

(2) The charges shall be determined by reference to a
schedule of charges published in the Gazette by the
Authority following public consultation.

(3) Where there is an agreement between the
Authority and a water resources users' association, the
Authority may make available a portion of the water use
charges to be used for financing such regulatory activities
as the water resources users association has agreed to
undertake on behalf of the Authority.

43. (1) In issuing a permit. and in fixing any
conditions to be imposed on a permit, the Authority shall
take into account such factors as it considers relevant,
including-

(a) existing lawful uses of the water;

(b) efficient and beneficial use of water in the public
interest;

(c) any basin area water resources management
strategy applicable to the relevant water resource,

(d) the likely effect of the proposed water use on the
water resource and on other water users;

Charges firr rvater
use

Consrderatrons for
the issuance of
permrts.


No.43

r 050

Water

(e) the classification and the resource quality
objectives of the water resource;

(0 the investments already made and to be made by
the water user in respect of the water use in
question;

(0 the strategic importance of the proposed water use;
(g) the quality of water in the water resource which

may be required for the reserve; and
(h) the probable duration of the activity or

undertaking for which a water use is to be
authorised.

(2) The use of water for domestic purposes shall take
precedence over the use of water for any other purpose, and
the Authority may, in granting any permit, reserve such
part of the quantity of water in a water resource as in its
opinion is required for domestic purposes.

(3) The nature and degree of water use authorizedby
a permit shall be reasonable and beneficial in relation to
other persons who use the same sources of supply or bodies
of water.

(4) A permit shall, subject to this Act, remain in force
for the period specified in it, and may, to the extent that the
permit so provides, be renewed from time to time.

44. (l) The Cabinet Secretary in consultation with the
Authority may from time to time, by notice in the Gazette,
make Regulations for determining exceptional
circumstances to warrant a grant of a permit.

(2) The Authority upon the advice of the basin water
resources committee may, if in the opinion of the Authority
exceptional circumstances as provided for in subsection
(l), warrant such action, grant a permit authorising with or
without conditions, the use of water from a water resource
and the construction of the works required without
subjecting the application to public consultation.

(3) In considering whether or not to grant a permit in
accordance with this section, the Authority, shall have
regard to the extent to which the grant shall interfere with
the domestic requirements of other users.

(4) A permit granted in accordance with this section
shall not in any case be in force for a period exceeding or

2016

Issue of permrts rn
exceptronal cases.


2016

l0-51

Wilter

for periods which in the aggregate exceed, one year, or for
the construction of permanent works.

45. (1) A permit shall specify, as far as practicable,
the particular portion of any land, or the particular
undertaking to which the permit is to be appurtenant, and
on its grant the permit shall, subject to the provisions of
this section, during the period for which it remains in
force-

(a) be appurtenant to that portion of land or that
undertaking; and

No.43

Permit to be
linked to land or
undertakrng

(b) pass with any demise, devise, alienation, transfer
or other disposition whether by operation of law or
otherwise.

(2) Where, in the opinion of the Authority-
(a) owing to a change in circumstances not under the

control of the permit holder after the grant of the
permit, the applicable water cannot, in such
circumstances, be reasonably beneficially used by
the permit holder on the particular portion of land
to which the permit is appurtenant; and

(b) neither the public interest nor the rights of others
would be adversely affected by a transfer in
accordance with this subsection, the Authority
may, on application by the permit holder and by
endorsement of the permit or other instrument in
writing, transfer the permit to another portion of
the land owned by the permit holder, after which,
it shall become appurtenant to that portion.

(3) If any land to which a permit is appurtenant has
been, or is about to be, subdivided, the Authority may grant
a new permit subject-

(a) to the condition that such easements, if any, as
may be required to be granted within a period of
two years after sub-division of the land or within
such longer period as the Authority may
determine; and

(b) any other conditions, and modifications, that the
Authority may consider necessary.

46. (l) Whenever it is shown to the satisfaction of the varrauon or
Authority that, owing to natural changes, increased demand

permrt


No.43

I 051

lVttter

or other cause, the use of water under a permit, or the
method or point of diversion or other manner in which the
water is so used causes-

(a) inequity;
(b) a deterioration in the quality of r,vater,
(c) a shortage of water firr domestic purposes; or
(d) a shortage of water for any other purpose which in

the opinion of the Authority in case of inter-basin
water transfers, should have priority.

the Authority may vary the permit so as to alter the
discharge or quality of rvater or any other aspect of rvater
use authorised by the permit, or to alter the method or point
of diversion or other specifications, terms or conditions of
the permit.

(2) A permit shall not be cancelled or varied under
this section unless notice of the proposed cancellation or
variation has been served on the permit holder and the
permit holder has been afforded a reasonable opportunity
to show cause to the Authority why the permit should not
be cancelled or varied.

(3) Subsection (2) does not apply where the variation
is expressed to be made owing to drought or owing to a
crisis of a kind prescribed by Regulations made under this
Act.

47.(l) Where, in the opinion of the Authority, it is
desirable that water use in respect of one or more water
resources, including ground water, within a specific
geographic area be rationalized or reviewed so as to-

(a) achieve a sustainable allocation of water from a
water resource which is under stress:

(b) achieve equity in allocations;

(c) promote beneficial use of water in the public
interest;

(d) facilitate efficient management of water resources,
or

(e) protect water resource quality.

the Authority may issue a notice in the Gazette requiring
all water users, including permit holders, to apply or
reapply for permits for one or rnore types of water use.

2016

Potver lo requrre
permrt
applrcatron\ or re
applrcatrons


20t6

I05-l

lVr t ler No.43

(2) On receipt of applications or re-applications, the
Authority shall prepare a proposed allocation schedule
specifying how water frorn the water resource in question
shall be allocated, taking into account the requirements of
the reserve.

(3) The proposed allocation schedule shall be
subjected to public consultation, afier which the basin
water resources committee shall prepare a preliminary
allocation schedule and shall, by notice published in the
Gazette advertise the times and places at which a copy of
the schedule may be inspected.

(4) A person dissatisfied with the prelirninary
allocation schedule may appeal to the Water Tribunal
within thirty days of the publication under subsection (3).

(5) A preliminary allocation schedule shall becorne a
final allocation schedule--

(a) if no appeal is lodged as provided for under
subsection (4);

(b) if it has been amended after a successful appeal; or
(c) if every appeal lodged has been disrnissed.
(6) The Authority shall publish a notice in the Guiette

stating that the preliminary allocation schedule has become
final and advertise the times and places where a copy of the
schedule rnay be inspected.

(7) The Authority shall, as soon as reasonably
practicable after an allocation schedule becomes final,
issue permits according to the allocations provided for in it,
and cancel any inconsistent permits.

48. (l) The Authority may in the case of an inter ('ancellationora
basin water transfer caniel oi vary a permit if such permrt'
cancellation or variation is necessary for the
accommodation of additional water users of a water source.

(2) A permit shall not be cancelled or varied under
this section unless notice of the proposed cancellation or
variation has been served on the permit holder and the
permit holder has been affbrded reasonable opportunity to
shou, cause to the Authority rvhy the permit should not be
cancelled or varied.

(3) A permit holder whose pennit is cancelled under
this section shall be paid compensation of an amount


No.43

1054

Water

agreed between the permit holder, the additional water user
or users and the Authority in the case of inter basin water
transfer, and any disputes arising from such compensation
shall be determined by the Water Tribunal.

49. (1) A permit may be cancelled or varied by the
Authority if the permit holder-

(a) contravenes any condition of the permit, or

(b) faits to make beneficial use of the water or any
part of the water as determined by the Authority.

(2) A permit shall not be cancelled or varied under
this section unless notice of the proposed cancellation or
variation has been served on the permit holder and the
permit holder has been afforded a reasonable opportunity
to show cause to the Authority as to why the permit should
not be cancelled or varied.

50. Every permit shall be subject to subsequent
variation by the Authority after a hydrographical survey of
the relevant body of water has been made, and after
reasonable notice has been given to all parties affected.

51. (1) A permit holder may request the Authority to
vary a permit issued under this Act and the Authority may
if satisfied that the variation is not contrary to the public
interest or the rights of others, vary such permit in order
to-

(a) change the point of diversion or abstraction of the
water used under the permit;

(b) change the use of water authorised by the permit;
or

(c) permit the apportionment of the water authorised
by the permit to be taken or used, to be
apportioned between two or more parts of the land
to which the permit pertains;

(d) permit the mixture of waters authorised to be
taken or used, with those authorised to be taken or
used by another permit, whether held by the same
or another permit holder;

(e) remedy any defect where the permit is incomplete
or indefinite in its terms and conditions; or

2016

Cancellatron or
vanatron of a
permit for farlure
to observe terms
and condrttons

Variation of
permit followrng a
hydrographical
survey.

Variation of a
permit at the
request of the
permrt holder


2016

1055

Wutcr

vary any other term or condition of the permit.

A variation relating to-
the use of water authorised by the permit; or

(b) a term or condition of a prescribed kind, shall not
be made without public consultation.

52. (l) A permit holder who ceases to utilise water in
accordance with the terms of the permit shall by notice to
the Authority abandon the whole of the permit or any part
capable of separation.

(2) Upon abandonment of a permit under subsection
(1), the Authority may direct the permit holder to remove,
within such time as it may specify, all or any works erected
in connection with the permit.

(3) A permit holder who neglects or fails to remove
the works concerned commits an offence, and the
Authority may remove all or, any portion of the works, and
may recover the cost of their removal from the permit
holder as a debt in any court of competent jurisdiction.

53. (1) Where a permit-
(a) is to be cancelled or varied by the Authority

pursuant to this Act;
(b) has been granted erroneously or irregularly; or
(c) has been granted in contravention of the

provisions of any Regulations made under this Act
with respect to the terms and conditions of such a
permit,

the Authority may, by notice served on the permit holder,
require such permit holder to surrender the permit to the
Authority.

(2) A permit holder who fails to comply with the
notice mentioned in subsection (1) commits an offence.

54. (1) The Authority shall establish and maintain a
register of permits and the register shall contain the details
of the permit holders, the respective terms and conditions
of each permit and the results of any monitoring and
enforcement action taken by the Authority in respect to
each permit.

(2) The Authority shall establish and keep a register at
the national level.

No.43

Abandonment of
permltted
actlvltles

Surrender of
permlts

Regrster of
permrts.


I 056

No.43 \\'uter 2016
(3) The public may access the information contained

in the register on payment of the fee prescribed by the
Authority.

55. (1) Any party aggrieved by the decision of the
Authority may appeal to the Water Tribunal, in the
prescribed manner within fburteen days fiom the date such
decision was made.

(2) The Tribunal shall on appeal either vary. reverse
or confirm the decision of a water basin resources
committee, and its decision shall be communicated to the
parties concerned within fourteen days from the time the
decision is made.

Ground Water

56. The Fourth Schedule has effect with respect to the
abstraction of ground water and respective lvorks.

Entry on Land

57. (1) Subject to the provisions of subsection (4), a
permit holder or any person proposing to apply for a permit
or intending to enter onto the land of another person for the
purposes of conducting a survey related to proposed works,
if his or her proposal is opposed by the other person,
may-

(a) upon submitting in the manner prescribed-
(a) a general description ofhis or her proposal;
(b) a schedule of lands which may be affected

construction and operation or any works
undertaken pursuant to the permit;

(c) the names and addresses of the affected
landholders: and

(b) upon payment of the prescribed fee,

obtain from the Authority permission to enter on to the
land concerned and to carry out any survey or other
preliminary investigation in connection with the location of
any such proposed works.

(2) The Authority may prescribe a time limit within
which the investigation shall be completed.

(3) The permit holder or any person authorized by the
permit holder, may seek such assistance as is necessary to
enter onto the respective land.

,\ppc.tls

Abstrachon of
ground rvater

Entry by permit
holder

by the
to be


I0-)7

2(116 ll'Lttt'r N.. 43
(-l) A pernrit strall not bc issued Linder this section

until the Authority has notifietl each laudholcler concertted
that an application to entcr his or her land hits been r-nade
under this section.

58. An inspector appointed by the Autholity nray.
rvithout a rvamant. cnter onto an1, land and inspect atlv
water resource located lvithin or accessible from the l:rnd
concerned. in order to take such measures as the Ar-rthoritt'
may consider necessary for the purpose of-

(a) conserving or regulating the rvater resource. or
preservin-e it from pollution or protecting the bed
over which it liesl

(b) removing any obstruction fiom. or clearing and
deepenin-q the bed: or

(c) preventing the excessive or illegal diversion, waste
or pollution of the water resource or interf-erence
with any such bed.

59. (l) An employee or agent of a licensee authorised
by the licensee for the purpose may, rvithout rvarrant, etrter
on to any land and inspect any source of water supply
rvhich is located rvithin or accessible from the land
concerned. in order to take such measures as the licensee
may direct for the purpose of-

(a) preserving the water fiom pollution or protecting
the bed over which it lies or flows; or

(b) removing any obstruction from. or for clearing
and deepening the bed; or

(c) preventing the excessive or illegal diversion,
waste or pollution of the water or interference with
any such bed.

(2) An employee or agent of a licensee authorised by
the licensee for the purpose may enter onto any premises
in the area to which the licence is applicable, for the
purpose of-

(a) ascertaining whether there has been a
contravention of any such Regulations;

(b) in the case of any Regulations in respect of tariffs
and the payment of those tariffs, exercising any
right conferred on the licensee to cut off supplies
for non-payment, or

Entr,r b1 thr
,\uth()ntV

Entr-1 by hccnsee


No.43

10s8

Wuter 2016

(c) in the case of any Regulations made for preventing
water degradation-

(i) ascertaining whether or not circumstances exist
which would justify the licensee's imposing a
requirement to execute works or take other
action to prevent degradation; or

(ii) exercising any right conferred on the licensee
to execute and maintain works or other
appropriate action.

60.(1) In this Part, "authorised person" means a Mannerorentry
person entering onto any land or premises pursuant to a
right or permission conferred under this Act.

(2) An authorised person shall not enter on any land
or premises without first giving a reasonable notice in
verbal or written form to the landholder or other
responsible person in charge of the land or premises, and
any such entry shall be at a reasonable hour.

(3) Notwithstanding the provisions of subsection (2),
an inspector may enter without giving notice if-

(a) he or she has reason to believe that a provision of
this Act or of any rule or order made under this
Act has been or is about to be contravened;

(b) he or she is unable to give notice within a
reasonable time having regard to all the
circumstances; or

(c) he or she has given reasonable grounds for not
giving notice.

(4) If so requested by the owner or occupier of the
land or premises, the authorised person shall produce
evidence of his right or permission, as the case may be, to
enter on to the land.

(5) It shall be the duty of any person when exercising
any powers under this section to do so with reasonable care
and in such a manner as to cause as little damage as
possible on the land or premises referred to in subsection
( 1).

61. (1) A permit holder or licensee, or an employee or ,,1*:T:,
agent of a permlt holder or licensee shall, on demind-by an rnspectors'
inspector-


I 059

2016 Water No.43
(a) avail to the inspector any information within his

or her knowledge relating to any inquiry held by
the inspector under this Act; and

(b) produce for inspection any licence, map plan,
specification, drawing or other document or record
relating to-
(i) the permit or licence;
(ii) any works constructed under the permit or

licence; or
(iii) the flow of water in any such works or in any

water resource affected by them.
(2) A person who contravenes this section commits

an offence.

62. (L) A person who has committed, or has been
accused of committing an offence under this Act and
who-

(a) refuses, on demand of an inspector, to give his or
her name and place of abode and other particulars
which the inspector may reasonably require; or

(b) in purported compliance with such a demand,
gives a name, place of abode or other particulars
which the inspector has reason to believe to be
false,

may be arrested by the inspector without warrant, and
handed over to the nearest police officer.

(2) When the true identity, place of abode or other
particulars of the person referred to in subsection (1) have
been ascertained, the person concerned shall be released
upon the execution of a bond, if so required, with or
without sureties, so as to appear before a magistrate.

(3) If the person's true name and place of abode and
other particulars are not ascertained within twenty hours
from the time of the arrest, or if he or she fails to execute
the bond or, to furnish the applicable sureties, such person
shall be presented before a magistrate having jurisdiction
in the area.

PART IV_WATER SERVICES
General

63. Every person in Kenya has the right to clean and
safe water in adequate quantities and to reasonable

Requlrement to
state name and
address.

Right to clean and
safe water-


No.43

l oh0

I\irtcr

standards of sanitati()n as slripulatecl in Article 43 of thc
Constitution.

64. (l ) The Cabinet Secretary shall. within one year of
the cornmencement of this Act and every five years
thereafter. follow'ing public participation. formulate a
Water Services Strategy.

(2) The object of the Water Strategy shall be to
provide the Government's plans and prograrns fol the
progressive realization of the right of every person in
Kenya to water.

(3) The Water Strate-qy shall contain. among other
things, details of-

(a) existing water services:
(b) the number and location of persons who are not

provided lvith a basic water supply and basic
sewerirge services:

(c) standards for the progressive realisation of the
right to rvater; and

(d) a resource mobilization strategy fbr the
inrplementation of the plans.

(4) The Water Strategy in force for the time being,
shall be published in the Ga:.ette.

(5) The Cabinet Secretary shall in consultation rvith
county governments. provide a national water sector
investment and financing plan aggregated from the county
government plans which shall include, among other details,
the time frames for the plans and an investment programme
based on the investment plans.

(6) The Cabinet Secretary shall review the Water
Services Strategy every three years.

Water Works Development Agencies

65. (l) The Cabinet Secretary rnay. by notice in the
Ga:.ettc, establish one or more waterworks development
agencies and define the geographical area ofjurisdiction of
each such agency.

(2) The water works development agencies shall be
bodies corporate with perpetual succession and a common
seal and shall have power, in their respective corporate
names. to sue and to be sued and. in the exercise and

2016

Natrorlrl Wirter
Scrvrccs Stratesr

Estabhshment of
u ater u'orks
tlevelopment
agenc les


2016

10(r I

\llttt

perfi)rmancc of their powers and furrctior.ls. to do and
pernrit all such things as may larvtully he done or perrnitted
by a body corporate.

66. (l) Each lvater works development tgc'ncy shall
consist of-

(a) a chairperson, who shall be appointed by the
Cabinet Secretary frorn a county within the basin
areal

(b) fbur other members who shall be appoinLed by the
Cabinet Secretary from counties within the basin
area; and

(c) the Chief Executive Otficer.
(2) The First Schedule has effect with respect to the

membership and procedure of the \\,ater rvorks
development agencies.

67.The Cabinet Secretary shall in consultation with
stakeholders develop the criteria for establishnrent of the
water works development agencies.

68. The powers and funclions of the rvater works
development agency shall be to -

(a) undertake the development, maintenance and
management of the national public water works
within its area of jurisdiction;

(b) operate the rvaterworks and provide water services
as a water service provider, until such a time as
responsibility for the operation and management
of the waterrvorks are handed over to a county
government, joint cornmittee, authority of county
governments or water services provider within
rvhose area of jurisdiction or supply the
waterworks is located;

(c) provide reserve capacity for purposes of providing
water services where pursuant to section 103. the
Regulatory Board orders the transfer of water
services functions from a defaulting water services
provider to another licensee:

(d) provide technical services and capacity building to
such county governments and water services
providers within its area as may be requested; and

No.43

Boards of the
rviite r u orks
dr-\ clopmellt
ag!-nL IC\

Crrterrir ftrr rvater
rvorks
der clopnrent
agcnc rc\

Porvcr s and
functrons of the
\! atcr \\'ork\
de'r'cloprnent
ag!-nc)


No.43

1062

Water

(e) provide to the Cabinet Secretary technical support
in the discharge of his or her functions under the
Constitution and this Act.

69. (1) As soon as possible, following the
commissioning of the waterworks, the waterworks
development agency shall enter into an agreement with the
county government, the joint committee or authority of the
county governments within whose area of jurisdiction the
water works is located, jointly with the water service
provider within whose area of supply the water works are
located for the use by the joint committee, authority or
water services provider, as the case may be, of the water
works to provide water services.

(2) The agreement shall make provision for the
assumption by the county government, the joint committee,
authority or water services provider of the responsibility
for the repayment of any loans or liabilities of the
waterworks and until full repayment of the loans and
discharge of any outstanding liabilities, ownership of the
waterworks shall remain in the waterworks development
agency.

(3) In the event that the county government, the joint
committee, the authority or water services provider defaults
in the repayment of any outstanding loans arising from the
development, rehabilitation or maintenance of the works,
the waterworks development agency may petition the
Regulatory Board to declare a default and order the transfer
of the water services provider's functions to the
waterworks development agency, to exercise such
functions until full repayment of the loan.

The Water Services Regulatory Board

70. (1) There is established the Water Services
Regulatory Board whose principal object is to protect the
interests and rights of consumers in the provision of water
services.

(2) The Regulatory Board shall be a body corporate
with perpetual succession and a common seal and shall
have power, in its corporate name, to sue and be sued and,
in the exercise and performance of its powers and
functions, to do and permit all such things as may lawfully
be done or permitted by a body corporate.

2016

Handover of
completed works.

Establishment of
the Water
Services
Regulatory Board


2016

1063

Water

71. (l) The powers and functions of the Regulatory
Board shall be exercised and performed under the direction
of the Regulatory Board, which shall consist of-

(a) a chairperson appointed by the President,

(b) four other members appointed by the Cabinet
Secretary; and

(c) the Chief Executive Officer.

(2) The First Schedule shall have effect with regard to
the membership and procedure of the Regulatory Board.

72. (l) The powers and functions of the Regulatory
Board shall be to-

(a) determine and prescribe national standards for the
provision of water services and asset development
for water services providers;

(b) evaluate and recommend water and sewerage
tariffs to the county water services providers and
approve the imposition of such tariffs in line with
consumer protection standards;

(c) set licence conditions and accredit water services
providers;

(d) monitor and regulate licensees and enforce licence
conditions;

(e) develop a model memorandum and articles of
association to be used by all water companies
applying to be licensed by the Regulatory Board
to operate as water services providers;

(0 monitor compliance with standards including the
design, construction, operation and maintenance of
facilities for the provision of water services by the
water works development bodies and the water
services providers;

(g) advise the Cabinet Secretary on the nature, extent
and conditions of financial support to be accorded
to water services providers for providing water
services;

(h) monitor progress in the implementation of the
Water Strategy and make appropriate
recommendations;

No.43
Regulatory Board

Powers and
functions of the
Regulatory Board


No. -1-l

106-+

Wutcr

( i) rlairrtairi a rriltional ciatabase and infornration
\) stCt)l r rlt \\'CICI Serr ie Csl

(-i) establish a meciranisnr for handling conll)lrints
ti'r'rrrr cousumers regirrding the quality or nuture of
\\ aier serr,'ices:

(k) develop guidelines on the r-stablishrnent of
consumer groups and tacilitat- their establishrnent;

(l) inspect water works irnci rvater services to ensure
that such 'nt,orks arrcl sen'ices mect the prescribed
standards;

(rn) report annually to the public ou issues of water
supply and sewerage services and the perfonnance
of relevant sectors and publish the reports in the
Gu:ette.

(n) make Regulations on water services and asset
development which shall include business,
investment and financing plans in order to ensure
ef f icient and effective water services and
progressive realization of the right to water
services;

(o) advise the Cabinet Secretary on any matter in
connection rvith water sen'ices. and

(p) make recommendations on how to provide basic
water services to marginalised areas.

(2) The Regulatory Board shall have such powers and
functions as may be conferred on it by this or any other
Act, or as may be reasonably incidental to the exercise or
perfonnance of any power or function so conferred.

73. (1) There shall be a Chief Executive Officer of the
Regulatory Board who shall be appointed by the Cabinet
Secretary on the recommendation of the Regulatory Board,
on such terms and conditions of service as may be
prescribed by the Cabinet Secretary responsible for public
service on the advice from the Salaries and Remuneration
Commission.

(2) The Chief Executive Officer shall be the principal
officer of the Regulatory Board and, subject to the
directions of the Regulatory Board shall be responsible for
management of the Regulatory Board.

(3) The Regulatory Board may appoint such officers
and other employees as may be necessary for the exercise

20t6

Employees of the
Regulatorl'Board


2016

r 065

Water

and performance of its powers and functions, upon such
terms and conditions as the Cabinet Secretary responsible
for public service may determine upon consideration of
advice from the Salaries and Remuneration Commission.

74. (l) A person shall not be licensed as a water Licensrng'
service provider unless such person makes an application
under this section to the Regulatory Board and submits a
copy of the application to the county government within
whose area of jurisdiction it intends to provide water
services.

(2) Prior to determination of the application, the
Regulatory Board shall publicise the application and shall
take into consideration the views of stakeholders including
the county government, within whose area of jurisdiction
the applicant intends to provide water services.

(3) The Regulatory Board shall issue a licence if the
applicant meets the licensing requirements.

75. (1) The Regulatory Board shall maintain the
register of all licensed water services providers
containing-

(a) their names and addresses;

(b) in the case of a registered association, or public
benefit organization, the nature of the association
or organization and the particulars of its
registration;

(c) the nature of services in respect of which the water
services providers are accredited;

(d) the conditions, if any, attaching to their license;
and

(e) any other matter prescribed in Regulations.

(2) The register of the licensed person shall be a
public document accessible for inspection at no charge and
shall be publicized, placed or posted in accessible formats
at such places as the Regulatory Board shall determine.

(3) The register referred to in this section shall be
published from time to time by the Authority.

(4) The Regulatory Board shall
guidelines to regulate the conduct
services providers.

develop and publish
of licensed water

No.43

Regrster of
licensed water
servrces provrders


No.43

1066

Water

76. (l) The Regulatory Board may, revoke the licence
of a water services provider on any of the following
grounds-

(4) if it is shown to the satisfaction of the Regulatory
Board that the licence was obtained by mistake,
fraud, undue influence or misrepresentation; or

(5) the water services provider has for any reason
ceased to meet the criteria for licensing; or

(6) if it is shown to the satisfaction of the Regulatory
Board that the water services provider has refused,
failed or neglected to provide the services for
which they were licensed;

(7) the water services provider becomes insolvent, or
is adjudged bankrupt; or

(8) the water services provider has failed to comply
with any conditions for licensing.

(2) The Regulatory Board shall give written notice of
revocation of a license under subsection (1) to the water
services provider within seven days of the revocation.

(3) A person whose licence is suspended or revoked
shall cease to provide the relevant service.

(4) A water services provider whose licence is
suspended or revoked may apply to the Regulatory Board
to review its decision within fourteen days of receipt of the
notice of revocation.

77. (l) A county government shall establish water
services providers.

(2)In establishing a water services provider, a county
government shall comply with the standards of commercial
viability set out by the Regulatory Board.

(3) A water services provider established under this
section may be a public limited liability company
established under the Companies Act, 2015 or other body
providing water services as may be approved by the
Regulatory Board.

(4) A company intending to be licensed as a water
service provider shall submit to the Regulatory Board its
memorandum and articles of association that conform to
the guidelines developed and approved by the Regulatory
Board.

20t6

Revocatron of
hcence

Establishment of
water servlce
providers

No. l7 of20l5


2016

t06l

Wuter

(5) The Regulatory Board shall make Regulations on
the standard of rvater to be supplied by rvater service
providers licensed under this section.

78. (1) A water services provider shall be responsible
for-

(a) the provision of water services within the area
specified in the licence; and

(b) the development of county assets for water service
provision.

(2) A licensed water services provider shall have such
other powers and functions as may be conferred on it by
this Act or any other Act.

79. (l) A water services provider shall have a board of
directors and in the case of a company, the members of its
board of directors shall be constituted in accordance with
the Companies Act, 2OI5 or any other written law and the
directors shall be nominated to serve on the board in
accordance with the company's memorandum and articles
of association.

(2) All members nominated to the water services
provider's board of directors shall possess qualifications
which meet the standards set by the Regulatory Board.

80. A member of a board of directors of a water
services provider shall not-

(a) at the time of nomination for appointment to the
board, be serving as an elected member of a
county government;

(b) hold office in a political party; or

(c) be a serving member of Parliament.
81. A water services provider may with the approval

of the relevant licensing authority extend water services to
rural or developing areas.

82. (1) A party aggrieved by the decision of a water
services provider may appeal against the decision to the
Regulatory Board in the prescribed manner within fourteen
days from the date the decision was made.

(2) The Regulatory Board may on appeal either vary,
reverse or confirm the decision of the water service

No.43

Responsrbrhtres of
the water servlces
prov rder.

Board of a rvater
servrces provider

No l7 of20l5.

Member of the
Board not to hold
pubhc office.

Extensron of
servlces to rural or
developing areas.

Appeals to the
Regulatory Board.


85. ( 1) A person shall not provide water services Provtsion of water
except under a licence issued by the Regulatory Board,
upon submission of an application and such supporting
documents as the Board may require.

No.43

1 068

Walet

provider, and the Regulatory Board shall communicate its
decision to the parties concerned within fourteen days from
the time the decision is made.

83. A county or a cross-county owned water service
provider established as a public institution and operating
and providing rvater services shall hold the county or
national public water services assets on behalf of the
public.

84. (1) The Cabinet Secretary shall make Regulations
for the transfer of national public assets to the county water
services providers in accordance with any larv regulating
the handing over and disposal of public assets.

(2) The Regulations shall include arrangements t<r
protect public assets in case of private sector participation
such as the separation of operation from asset holding and
development.

(2) A person who provides water services
contravention of this section commits an offence.

(3) Nothing in this section prohibits the provision
water services -

(a) by a person to their employees;
(b) on the premises of an institution including a

hospital, factory, school, hotel, research station or
other comparable institution. in cases where the
source of supply of the water is lawfully under the
control of the institution or where the water is
supplied to such institution in bulk by a licensee;
or

(c) in circumstances which are prescribed by
Regulations made by the Regulatory Board to be
exempt from the requirement of a licence.

86. (1) An application for the licence under section 85
(1) shall be made in the prescribed form to the Regulatory
Board.

(2) In making the application, the applicant shall be
required to submit the following particulars to the
Regulatory Board as the case may be-

2016

County orvned
water servtce
provider to hold
assets for the
pubhc

Cabrnet Secretary
to make
Regulatrorrs

Procedure and
requrrements for
obtaining a
I r cence.

ln

of


I 069

2016 Wuter No.43
(a) evidence that the applicant's board of directors

cornplies with the standards set by the Regulatory
Board under section 79 (2):

(b) the technical and financial capability of the
applicant to provide the services and perform the
functions authorized by the licence;

(c) evidence that the water services to be provided
will be commercially viable;

(d) the applicant's business plans for the provision of
efficient. affordable and sustainable water
services;

(e) details of planned financial and infrastructural
improvements;

(f) a proposed tariff structure; and
(g) any other information required by the Regulatory

Board.

(3) The application shall be made by completing and
lodging the prescribed form together with the supporting
documentation and the prescribed fee.

(4) The Regulatory Board shall have discretion to
grant or refuse to grant an application for a licence
submitted under subsection (1).

(5) An application shall not be granted unless the
Regulatory Board is satisfied that-

(a) the applicant has the requisite technical and
financial competence to provide the services to
which the licence relates;

(b) the applicant has demonstrated that the water
services to be provided will be commercially
viable;

(c) the applicant has presented a sound plan for the
provision of an efficient, affordable and
sustainable water service;

(d) the applicant has proposed satisfactory
performance targets and planned improvements
and an acceptable tariff structure;

(e) the applicant or any water services provider by
whom the functions authorized by the licence are


No.43

1070

Wuter

to be performed, will provide the water services
authorised by the licence on a commercial basis
and in accordance with sound business principles;

(f) where water services authorised by the licence are
to be provided by a water services provider which
conducts some other business or performs other
functions not authorised by the licence, the supply
of those services will be undertaken, managed and
accounted for as a separate business enterprise;
and

(g) the applicant has met any other requirements
which the Regulatory Board may consider
necessary for the efficient provision of the services
to be provided under the licence.

87. (1) An application for a licence shall be subject to
public participation.

(2) Any person opposed to the grant of a licence may
object, in writing, to the Regulatory Board.

(3) The Regulatory Board shall make a determination
on an application for a licence within six months after the
applicant lodges the application.

(4) The Regulatory Board shall notify the applicant
and the objector of its decision and, in the event of the
rejection of an application or objection, of the reasons for
the decision.

(5) An applicant or objector may, if aggrieved by the
decision of the Regulatory Board, appeal to the Tribunal
within thirty days of the date of the notification of the
decision.

(6) Where the Regulatory Board does not determine
the application within six months of receipt of the
application, any fee charged by the Regulatory Board under
section 86(3) shall be refunded to the applicant.

88. (1) A licence shall only authorise a water services
provider to provide water services in the area specified in
the licence and shall not confer any rights of proprietorship
and in particular, the licence shall not be capable of being
sold, leased, mortgaged, transferred, attached, assigned,
demised or encumbered.

2016

Applicatron for a
hcence sub..;ect to
pubhc
consultatron.

Licence not to
confer any rights
of proprretorship
to the lrcensee.


20t6

r07I

Wutcr

(2) The Regulatory Board may require the applicant
to deposit with it a guarantee or other acceptable security
for the purpose of securing payment by the applicant of any
expenses recoverable from the licensee, for or towards the
costs incurred in discharging the functions of the licensee
in cases of default.

(3) As a condition for the licence, a licensee shall,
within twelve months of receipt of the licence, or such
other longer period as the Regulatory Board may
determine, formulate and present to the Regulatory Board,
a development plan for extending services to persons not
receiving water services within such licensee's area of
operation, a time frame for the implementation of the plan
and a resource mobilization strategy.

89. (1) A licensee shall pay to the Regulatory Board,
as the case may be, on issue of the licence and at prescribed
intervals thereafter, such licence fees as the Regulatory
Board may determine.

(2) The fee shall be determined by reference to a
schedule of fees published in the Gazette from time to time
by the Regulatory Board.

90. (1) A licence shall be subject to-
(a) conditions prescribed by Regulations made under

this Act; and
(b) such other conditions, not inconsistent with the

conditions prescribed, as the Regulatory Board
may impose in the licence or by endorsement in an
instrument annexed to the licence.

(2) Under this Act, Regulations may-
(a) require the imposition of prescribed conditions in

prescribed circumstances; and

(b) require the licensee to maintain, in the prescribed
manner, a contingency fund for the purpose of
renewal, repair, enlargement or improvement of
any plant, equipment, facilities or works used for
the purposes of the licence or for meeting any
other prescribed contingency.

91. (1) A water services provider shall, as the licensee,
be responsible for the efficient and economical provision of
water services so as to fulfil the rights to water and any
other conditions specified in the licence.

No.43

Lrcence fees

Condrtrons of
Ircence. '

Duty to provide
water servlces


No.43

1012

Water

(2) For the purpose of the provision of water services,
a water services provider, may-

. (a) purchase, lease or otherwise acquire, premises,
plant, equipment and facilities; and

(b) purchase, lease or otherwise acquire land, or
request for its compulsory acquisition in
accordance with the applicable laws.

92.Every water services provider shall establish a
mechanism for handling consumer complaints which meets
the standards set by the Regulatory Board.

93. (1) A water services provider may enter into a
public private partnership or public partnerships for the
exercise and performance by another person of some or all
of its functions as a licensee with respect to a part or the
whole of its area of water service provision.

(2) The partnership shall be in writing subject to the
approval of the Regulatory Board.

(3) Where the person eritering into an agreement with
the water services provider owns or possesses assets or
infrastructure used for the provision of water services, the
agreement shall set out the terms and conditions under
which the assets may continue to be so used.

(4) A power or function conferred by a licence or
otherwise conferred under this Act may be exercised or
performed by another person acting under an agreement
with the licensee and shall be deemed, when exercised or
performed by that other person, to have been exercised or
performed by the licensee.

94. (l) Nothing in this Act shall deprive any person or
community of water services on the grounds only that
provision of such services is not commercially viable.

33. Every county government shall put in place
measures for the provision of water services to rural areas
which are considered not to be commercially viable for the
provision of water services.

(3) The measures referred to in subsection (2) shall
include the development of point sources, small scale piped
systems and stand pipes which meet the standards set by
the Regulatory Board and which may be managed by the

2016

Consumer
complaints.

Pubhc Pnvate
Partnerships.

Special provisrons
wrth respect to
rural areas not
commercrally
vrable.


20t6

1013

Water

community associatiolls, public benefits organizations or a
private person under a contract with the county
government.

(4) In order to implement its obligations under this
section, a county government shall formulate and submit
annually to the Regulatory Board and to the Cabinet
Secretary, a five year development plan incorporating an
investment and financing plan for the provision of water
services in the rural areas referred to subsection (1) within
its area of jurisdiction.

(5) The Cabinet Secretary shall provide technical,
financial and other assistance to a county government to
enable the county government to discharge its
responsibility under this section.

95. (1) The Regulatory Board may, on the application
of a licensee, vary the terms and conditions of the licence.

(2) Except as otherwise provided by Regulations made
under this Act, no such variation shall be made without
prior public consultation.

96. (1) The area of water service provision shall be
prescribed by a licence and shall not be less than the area
required for a commercially viable water service.

(2) The area so prescribed may, but need not,
coincide with the boundaries of the area or areas of
jurisdiction of one or more county governments.

97. (l) The Regulatory Board may, on the application
of the licensees-

(a) permit the joint provision, by two or more
licensees, of water services on such terms as it
may approve; or

(b) permit the transfer of a water service, or a part
thereof, from one licensee to another licensee.

(2) Where it appears necessary to the Regulatory
Board, for the purpose of securing a commercially viable
water service, it may, by notice in the Gaiette, order a joint
provision of water services or a transfer of water service
and vary the relevant licenses accordingly.

(3) An order made under this section may make such
incidental, consequential and supplementary provision as

No.43

Varratron of terms
or condrtrons of a
Ircence

Areas of water
servlce.

Clustering of
areas of rvater
servrce provlslon


No.43

to14

Wuter

the Regulatory Board considers necessary for the purpose
of carrying out the order.

(4) The Cabinet Secretary in consultation with the
Regulatory Board shall make rules, setting out
circumstances under which the provision of joint water
services may be ordered.

(5) A licensee aggrieved by the provisions of the order
may appeal to the Tribunal.

98. (1) The Regulatory Board may vary the areas of
water service provision prescribed by one or more
licences-

(a) on the application of a licensee whose area of
water service is to be varied and with the consent
of any other licensees affected; or

(b) without the consent, or against the objections of
any such other licensee, if the Regulatory Board
is satisfied that the other licensee is unable to meet
the demands for water in its area of jurisdiction or
is otherwise unable to provide a commercially
viable service.

(2) Where it appears to the Regulatory Board that it is
necessary to vary the area of water service of a licensee and
the Regulatory Board is satisfied that such a variation
cannot be otherwise secured it may, by order published in
the Gazette, effect the variation accordingly.

(3) An order made under this section may make such
incidental, consequential and supplementary provisions as
the Regulatory Board may consider necessary for the
purpose of carrying out the order.

(4) A licensee aggrieved by the provisions of an order
made under this section may appeal to the Tribunal.

99. (1) Subject to any Regulations made under this
Act, the Regulatory Board may direct a licensee to provide
water services, outside its area of water services
jurisdiction.

(2) Where under this section a licensee, in this section
called the "supplying licensee", is providing water services
to premises outside its area of supply, any other licensee
within whose area of supply those premises are situated
may, in the absence of any agreement to the contrary, give

2016

Variatron of areas
of seruice

Provrsron of water
servrce outsrde the
area of supply.


2016

1015

Wuter No.43

not less than three months' notice to the supplying licensee
that the licensee is able and intends to provide water
services to the premises.

(3) A notice given under subsection (2) shall not be
valid unless it relates to all the premises to which the water
services are being provided by the supplying licensee in
accordance with this section.

(4) If on the expiration of the notice under subsection
(2) the licensee giving the notice commences to supply
water to the premises covered by the notice, the supplying
licensee shall, except for the purpose of recovering water
rates or other charges or expenses lawfully recoverable by
the supplying licensee, and of removing any pipes, plant or
apparatus belonging to the supplying licensee, cease to
have any rights or duties in respect of providing water
services to the premises concerned.

(5) The supplying licensee shall not remove any
pipes, plant or apparatus which are required by the licensee
giving the notice, and any such pipes, plant or apparatus
shall vest in the licensee giving the notice.

(6) The licensee giving notice shall pay to the
supplying licensee-

(a) any expenses reasonably incurred by the supplying
licensee for the purpose of providing water
services to the premises referred to in the notice;

(b) such sum in respect of any pipes, plant or
apparatus vested in the licensee giving the notice
as may be agreed or, in default of agreement, as
may be determined by the Regulatory Board.

(7) While the supplying licensee is in accordance
with this section authorized to provide water services
outside its area of service, any Regulations relating to its
water service shall have effect as if the area to which those
services were provided were within those limits.

100. (1) A person shall not supply water in bulk to a Supplvorbulk
water services provider without a licence issued by the
Regulatory Board.

(2) A water service provider may enter into an
agreement with any other licensee or water services
provider on terms and conditions to be approved by the
Regulatory Board-


to'16

No.43 Wdrcr

(b) fbr the supply of rvater in bulk for a specific
period; or

(c) where the supply is to be given by a rvater
services provider, either within or outside the area
of service of that water services provider.

(3) Where it appears to the Regulatory Board that-
(a) it is expedient for-

(i) any licensee or water services provider to give
the supply of water in bulk to another licensee
or water service provider;

(ii) the other licensee or water services provider to
take such supply; and

(b) giving and taking of such a supply cannot be
secured by agreement,

the Regulatory Board may, by order served on the
parties, require the licensees concerned to give and take the
supply of water in bulk for such a period and on such terms
as the Regulatory Board may specify.

101. (1) If it appears to the Regulatory Board
following a complaint made to or information received by a
county government executive or the Regulatory Authority,
that any licensee-

(a) has failed to discharge any duty imposed upon the
licensee by a licence or otherwise under this Act;
or

(b) has failed to give an adequate supply of water,
either in quantity or quality to any area or any
person which it is supplying; or

(c) having been notified by the Regulatory Board, as
the case may be, to take such steps as ate
reasonably practicable in order to remedy any such
failure as is mentioned in paragraph (a) or (b), and
has failed to do so,

the Regulatory Board, as the case may be, may inquire into
the matter.

(2) If, after inquiry, the Regulatory Board is satisfied
that there has been failure on the part of the licensee, the
Regulatory Board may impose a special regulatory regime

2016

Default by a
hcensee.


2016

1017

Woter No.43

on the water services provider for the purpose of
remedying the default.

(3) A licensee declared to be in default and is
dissatisfied with an order of the Regulatory Board under
this section may, within thirty days after receipt of the
order. appeal to the Tribunal.

(4) A licensee declared to be in default by order under
this section and who fails to comply with the order within
the time specified, commits an offence.

102. (1) The Regulatory Board may, in consultation Specralregulatorv
with the affected .orrrty government's eiecutive, impose

resrme

a special regulatory regime on a licensee who persistently
contravenes the conditions of a licence or the requirements
of this Act.

(2) In taking the action contemplated in subsection
(l) the licensee shall be given an opportunity to make
presentations to the Regulatory Board.

(3) The Regulatory Board
regulatory regime-

may under a special

(a) require the licensee to be under enhanced
monitoring licence and reporting;

(b) remove privileges from the licence; or

(c) revoke the licence and appoint a special manager
of the water services for a period of not more than
six months or until the respective county
government makes a new appointment whichever
is the earlier.

(4) In determining withdrawal of a licence, the
Regulatory Board shall consider the severity of the offence,
the consequences of withdrawal of a licence and the
sufficiency of any alternative sanction.

103.(1) If the Regulatory Board is satisfied that,
notwithstanding the imposition of measures under a special
regulatory regime, the default has not been remedied and is
not likely to be remedied by the licensee, it shall subject to
the Public Finance Management Act, 2Ol2 rn consultation
with the concerned county government executive, by notice
in the Gazette, order the transfer of water services to
another licensee.

Transfer of
functions of
Ircensee

i

No l8 of20l2


No.43

I 078

Water

(2) The order of transfer shall make such provisions
as appear to the Regulatory Board to be desirable or
necessary with respect to any property or assets being used
by the defaulting licensee for the purposes of providing the
water services.

(3) The transfer of a licence shall be a temporary
measure not exceeding twelve months pending remedial
action by a county government executive.

104. (1) A licensee may enter into an agreement with
any person with respect to the execution and maintenance,
by any party to the agreement, of such works as the
licensee considers necessary or as the conditions of the
licence may require for the purpose of protecting the
catchment areas, drainage of land, carrying out soil
conservation measures, the control of vegetation or
effectively collecting, conveying or preserving the purity
and quantity of water which the licensee is for the time
being authorised to take.

(2) An agreement under this section may be
registered against any proprietor of the applicable land, and
shall be binding upon and enforceable against such person
or successor in title.

105. (1) A licensee who is of the opinion that there is
a serious deficiency or threat of a deficiency of water
available for distribution, may with the approval of the
Regulatory Board, for such period as the licensee considers
necessary, prohibit or restrict with respect to the whole or
any part of such licensee's limits of supply, the use for any
specified purpose of water.

(2) Before the prohibition or restriction in subsection
(1) comes into force, notice shall be given by the licensee,
in one or more newspapers of daily circulation, within the
affected area or by such other means as the Regulatory
Board may approve, of the proposed prohibition or
restriction and of the date when such prohibition or
restriction shall come into force.

(3) Any person who contravenes the provisions of
this section commits an offence.

106. (1) It shall be the duty of every county
government executive to monitor and enforce the
applicable Regulations made under this Act, and any

2016

Agreements as to
protectlon of
sources of water,
etc.

Porver of lrcensee
to prohrbit or
restrrct use of
water.

Duty to enforce
Regulations on
water serylces


2016

t079

Water

county government executive who fails to do so shall be
liable to an order by the Regulatory Board to take such
action to enforce such Regulations as shall be specified in
the order.

(2) Where a county government executive considers
that the operation of any such Regulations would be
unreasonable in any particular case, a county government
may, in consultation with the Regulatory Board, by notice
to any affected party, reduce or dispense with the
requirements of the regulation.

107. (l) A licensee may, on any land belonging to it,
or on land over or in which it has acquired any necessary
easement or right, construct and maintain drains, sewers
and other works for intercepting, treating or disposing of
any foul water arising or flowing upon such land or
otherwise for preventing water belonging to the licensee, or
which it is for the time being authorised to take, from being
polluted.

(2) The licensee shall before constructing any works,
if the proposed works will affect or are likely to affect any
water resource, obtain the consent of the Authority and the
Regulatory Board.

(3) Any licensee proposing to construct any drain,
sewer or other works may, with the consent of the state
organ concerned and subject to such conditions as the state
organ may impose, carry the drain, sewer or other work
under, across or along any road or road reserve or public
place, whether within or outside the area of water service
of the licensee.

(4) A consent required under subsection (2) shall not
be unreasonably withheld, nor shall any unreasonable
condition be attached to such consent, and any question
arising from the operation of this subsection shall be
decided by consultation between the state organs
concerned.

108. (1) It shall be the duty of a licensee receiving
trade effluent into its sewerage system to ensure that it has
in place measures for the receipt and handling of the
effl uent without causing-

(a) pollution of the environment;

No.43

Executton of
works for
protectron of
water-

Control of trade
effluent


No.43

(b) harm to human health;

I 080

Water

(c) damage to the sewerage system: or

(d) a contravention of applicable lalvs or standards set
by the Regulatory Board.

(2) A person shall not discharge any trade effluent
from any trade premises into the sewers of a licensee
without the consent of the licensee.

(3) An application for consent shall be made to the
licensee and shall state-

(a) the nature or composition of the trade effluent;

(b) the maximum quantity of the effluent which it
proposes to discharge on any one day;

(c) the highest rate at which it is proposed to
discharge the effluent; and

(d) any other information required by the licensee.

(4) The licensee's consent may be given subject to
conditions, including conditions requiring pre-treatment
and payments to the licensee of charges for the discharge.

(5) Any person who is dissatisfied with the decision
of the licensee on an application under this section may,
within thirty days of the decision, appeal to the Regulatory
Board.

(6) A person who contravenes the provisions of this
section commits an offence.

(7) In this section, "trade effluent" means any liquid,
whether with or without suspended particles, produced as a
by-product in the course of any trade or industry.

109. (l) The Regulatory Board may impose a
sewerage services levy on all water services within the area
of a licensee, to cover a reasonable part of the cost of
disposing of the water supplied within those limits.

(2) A portion of the levy referred to in subsection (1)
may, with the approval of the Regulatory Board, be set
aside by the licensee for use in the expansion of the
sewerage system within the area of service provision of the
licensee.

2016

Sewerage services
levy.


2016

l0r3 t

ll'r t ter

f 10. ( l) A licensee. or an applicant for a license. who
requires the compulsory acquisition of land for any of its
purposes. may apply to a county governor, ol where
necessary to the Cabinet Secretary. who, on being satisfied
that such compulsory acquisition is desirable, may take the
steps necessary to secure the compulsory acquisition of the
land in accordance rvith the applicable larvs.

(2) It shall be a condition of the licence that the
licensee or an applicant for a licence shall, for the purposes
of subsection (l) take any necessary action to ensure the
protection-

(a) of a source of supply which belongs to such
licensee or will belong to the licensee following
the acquisitionl

(b) against pollution or other degradation. whether on
the surface or underground of any water resource
within such licensee's area of jurisdiction.

(3) Any purpose for rvhich land may be acquired
under this section shall be deemed, for the purposes of the
law on land acquisition, to be a public purpose.

111. (1) The Regulatory Board shall establish a
national monitoring and georeferenced information system
on water services.

(2) For the purposes of any systems established under
this section, the Regulatory Board may, by order. require
any person within a reasonable time or on a regular basis,
to provide it with information, documents, samples or
materials.

(3) The Cabinet Secretary may make Regulations to
facilitate the access to information by the public.

(4) Regulations made under this Act may specify
requirements and the nature of information for the keeping
of records and the furnishing of information to the
Regulatory Board.

(5) Subject to any law relating to access to
information and upon payment of the prescribed fee, a
member of the public shall have access to information
contained in any national information system.

112. Within three months after the end of each
financial year, the Regulatory Board shall prepare an

No.43
Conrpulsory
acqtil\rtron of
Iand

Regulatory Board
to estabhsh
Infbrmatron
S1'stem

Annual repoft


No.43

1082

Water

annual report of its work and activities and shall cause the
report to be published and publicized.

PART V_WATER SECTOR TRUST FUND

113. (1) There is established a water sector financing
institution to be known as the Water Sector Trust Fund.

(2) The Fund is a body corporate with perpetual
succession and a common seal and shall have power, in its
corporate name, to sue and to be sued and, in the exercise
and performance of its powers and functions, to do and
permit all such things as may lawfully be done or permitted
by a body corporate in furtherance of its objects.

114. The object of the Fund is to provide conditional
and unconditional grants to counties, in addition to the
Equalisation Fund and to assist in financing the
development and management of water services in
marginalized areas or any area which is considered by the
Board of Trustees to be underserved including-

(a) community level initiatives for the sustainable
management of water resources;

(b) development of water services in rural areas
considered not to be commercially viable for
provision of water services by licensees;

(c) development of water services in the under-served
poor urban areas; and

(d) research activities in the area of water resources
management and water services, sewerage and
sanitation.

115. (1) The powers and functions of the Fund shall
be exercised and performed under the direction of a Board
of Trustees from time to time appointed and holding office
under a trust deed to be drawn by the Cabinet Secretary.

(2) The Board of Trustees shall consist of a
chairperson and six other members recruited in accordance
with the First Schedule.

(3) The First Schedule shall have effect with respect
to the membership and procedure of the Board of Trustees
of the Fund.

116. (1) The powers and functions of the Board of
Trustees shall be to-

2016

Establshment of
the Water Sector
Trust Fund.

Objects of the
Fund.

Board of Trustees
of the Fund.

Functrons of the
Board of Trustees.


1083

2016 Water
(a) manage the resources of the Fund;
(b) mobilize additional resources for the Fund;
(c) formulate and implement principles, Regulations

and procedures in consultation with the national
government and county governments for financing
projects, including efficiency and effectiveness of
funds;

(d) implement measures to ensure the efficient and
equitable sharing of the resources of the Fund
giving priority to resource allocation in-
(i) rural and urban areas where access to basic

water services is below the national average;
and

(ii) rural areas which are vulnerable to the
degradation or depletion of water resources;

(e) monitor the implementation of projects;

(f) maintain and make public available information
on the projects financed and impact of such
projects;

(g) receive grants for onward lending to water
services providers, counties, and registered
community schemes towards water services and
water resources management projects for the
underserved areas and urban poor;

(h) establish and manage subsidiary funds as may be
necessary for sustainable financing towards water
services and water resource management; and

(i) in collaboration with relevant institutions develop
incentive programmes for water resources
management including disaster management,
climate change adaptation and mitigation.

(2) The provisions of subsection (1) (g) shall only
apply to water service providers, counties and registered
community schemes, that can afford the repayment of the
funds advanced, and profits thereof used to finance water
services and water resources management projects for the
underserved areas and urban poor.

(3) The Board of Trustees of the fund shall, following
public consultation, gazette the criteria for qualification for
funding from the Fund taking account of considerations of

No.43


l0ti-+

No.43 \\/tttL'r 2016
eqLrity and ma)' tiom time to tirne follorvin-q public
consultation review the criteria.

ll7.(1) The monies of the Fund shall consist of Nlo,tesorthe
m<lnies- Fund

(a) appropriated by Parliament from thc national
budget for the purposes of the Fund;

(b) provided to the Fund from the Equalisation Fund
on agreed programmes;

(c) provided to the Fund by a county government on
agreed prograrnmes;

(d) received by the Fund from donations, grants. and
bequests from other sources;

(e) the proceeds of the levy imposed under subsection
(2): and

(f) payable into the Fund under any Act.
(2) The Cabinet Secretary may, by Regulations

following public consultation prescribe a levy to be paid by
consumers of piped water supplied by licensed water
service providers, the proceeds of which shall be paid into
the Fund established under section 113.

118. (l) The Fund shall have Chief Executive Officer StarrortheFund
who shall be appointed by the Board of Trustees on such
terms and conditions of service as the Cabinet Secretary
responsible for matters relating to public service on the
advice of the Salaries and Remuneration Regulatory
Authority may determine.

(2) The Chief Executive Officer shall be the
accounting officer of the Fund and, subject to the directions
of the Fund, shall be responsible for the management of the
affairs of the Fund.

(3) The Fund may appoint such officers and other
staff as may be necessary for the exercise and performance
of its functions, upon such terms and conditions as the
Cabinet Secretary responsible for matters relating to public
service on the advice of the Salaries and Remuneration
Commission may determine.

PART VI _DISPUTE RESOLUTION
119. (l) There is established a Warer Tribunal.

f,:11,*:1"","t
(2) There shall be a chairperson of the Water Tribunal rribunal

appointed by the Judicial Service Commission on such


I 085

2016 Wuter
terms and conditions as may be determined by the Judicial
Service Commission.

120. The staff of the Tribunal shall be appointed,
removed from office or otherwise disciplined by the
Judicial Service Commission in accordance with Article
ll2 (l) (c) of the Constitution.

l2l. (I) The Tribunal shall exercise the powers and
functions set out in this Act and in particular shall hear and
determine appeals at the instance of any person or
institution directly affected by the decision or order of the
Cabinet Secretary, the Authority and Regulatory Board or
of any person acting under the authority of the Cabinet
Secretary, the Authority and Regulatory Board.

(2) In addition to the powers set out in subsection (l),
the Tribunal shall have the power to hear and determine
any dispute concerning water resources or water services
where there is a business contract, unless the parties have
otherwise agreed to an alternative dispute resolution
mechanism.

l22.The Tribunal shall make Rules governing its
procedures.

l23.ln determining an appeal, the Tribunal may
affirm, quash or vary the decision or order.

124. A person aggrieved by a decision of the Tribunal
may, within twenty-one days from the date of that
decision, appeal to the Land and Environmental Court,
established under article 162(2) of the Constitution on an
issue of law.

125. A decision of a water basin organization, the
Authority, the Regulatory Board or the Tribunal against
which no appeal has been preferred within thirty days from
the date on which the decision was made, shall be binding
on all parties.

PART VII _FINANCIAL PROVISIONS
l26.The funds of the Authority, Regulatory Board,

Water Storage Authority, Water Sector Trust Fund, and
water works development agencies shall respectively
consist of-

(a) monies allocated by Parliament for the purposes of

No.43

Staff of the Water
Tnbunal.

Jurisdichon of the
Trrbunal.

Proceedings of the
Tnbunal.

Determinatron of
appeals and
drsputes.

Appeals to the
Land and
Envrronment
Court

Decrsions bindrng
rf no appeal wrthrn
thrrty days

Funds of the
Authority,
Regulatory Board,
Water Harvestrng
and Storage
Authonty and
Water Works


I 086

No.43 Woter
the each body corporate established under this
Act;

(b) such monies or assets as may accrue to each body
corporate in the course of the exercise of its
powers or in the performance of its functions
under this Act; and

(c) all monies from any other source provided,
donated or lent to each body corporate
respectively.

l27.The financial year of each body corporate
established under this Act shall be the period of twelve
months beginning the first July and ending on the thirtieth
June in each year.

128. (1) Three months before the commencement of
each financial year, each body corporate established under
this Act shall cause to be prepared estimates of the revenue
and expenditure ofthe body corporate for that year.

(2) The annual estimates shall make provision for all
the estimated expenditure of the respective body corporate
for the financial year concerned and in particular, shall
provide for-

(a) the payment of the salaries, allowances and other
charges in respect of the staff of the body
corporate;

(b) the payment of pensions, gratuities and other
charges and in respect of benefits which are
payable out of the funds of the body corporate;

(c) the maintenance of the buildings and grounds of
the body corporate;

(d) the funding of training, research and development
of activities of the body corporate; and

(e) the creation of such funds to meet future or
contingent liabilities in respect of benefits,
insurance or replacement of buildings or
installations, equipment and in respect of such
other matters as the body corporates may consider
necessary.

129. (l) Every body corporate established under this
Act shall cause to be kept all proper books and records of
account of the income, expenditure, assets and liabilities.

2016

Der elopnrent
Agencres

Frnancral year

Annual estlmates.

Accounts and
audrt.


2016

I 087

Water

(2) Within a period of three months after the end of
each financial year, each body corporate shall submit to the
Auditor-General the accounts of the body corporate in
respect of that year together rvith a-

(a) statement of the income and expenditure of the
body corporate during that year; and

(b) statement of the assets and liabilities of the body
corporate on the last day ofthat financial year.

(3) The annual accounts of the body corporate shall be
prepared, audited and reported upon in accordance with the
provisions of the Constitution and the Public Audit Act,
20t5.

130. The Authority, the Regulatory Board and the
Water Storage Authority may, subject to the Public Finance
Management AcL2012 retain in a fund managed by the
respective bodies, the revenue from permit charges, water
user fees, regulatory levy, licence fees and any other
authorized charges and shall use such revenue in meeting
the costs incurred in the performance of their functions.

131. (1) All funds collected for water services by the
licensed water services providers holding county or
national public assets on behalf of the public through water
services bills and other sources, shall be used entirely for
the purpose of covering costs for the provision of water
services and asset development according to Regulations
made by the Regulatory Board.

(2) The licensed water services providers shall not be
required to pay any fees for the use of public assets for the
provision of water services other than the repayments of
loans acquired for the development of those assets.

(3) Dividends or other payments shall not be paid to
the owners of public water services providers as long as the
universal rights of access to safe and clean water have not
been achieved in the designated service areas.

132. All income through water permits, abstraction
and water user fees shall be entirely used for the
conservation and management of water resources.

PART VIII_GENERAL PROVISIONS
f33. (1) Any notice required to be served under this

Act shall be served-

No.43

No 34 of2015

Retenhon of
charges and fees.
No l2 of2012.

Funds collected
by water servtces
providers.

Income from
water permlts
abstraction and
water user fees.

Servrce of notrces


No.43

1088

Water

(a) by delivering it personally to the person required
to be served, or, if such person is absent or cannot
be found-
(i) by leaving it at the person's usual or last known

place of abode in Kenya;

(ii) by post, addressed to the person's usual or last
known address in Kenya; or

(b) in the case of a notice required to be served on a
local authority, company or other corporate body,
by delivering it to its principal officer or by
leaving it at such principal officer's office with a
person employed there, or by registered post.

(2) lf any landholder is not known and, after diligent
inquiry, cannot be found, such notice may be served by
leaving it, addressed to such landholder, with an occupier
of the land or, if there is no apparent occupier, by causing it
to be put in a conspicuous position on the property in
Kenya last known to have been occupied by the landholder.

(3) Any notice required to be given to a landholder
may be addressed to the owner of land or premises
described in the address in respect of which the notice is
given.

134. Any order, notice, consent, approval,
permission, demand, objection, application, standard or
other thing authorised or required by this Act to be given,
made, set, determined or issued by or to the Cabinet
Secretary, the Authority, Regulatory Board, a county
government executive, a licensee or other state organ shall
be in writing.

135. (1) Any order, notice, consent, approval, demand
or other document which the Authority, the Regulatory
Board, county government executive, or other state organ
is authorised or required by this Act to give, make or issue
may be signed on its behalf-

(a) by the Chief Executive Officer of the relevant
institution; or

(b) by any officer of the institution authorised by it in
writing to sign documents of the particular kind or
to sign the particular document.

2016

Order, etc., to be
in writrng.

Authentrcation of
documents.


I

2016

1089

Water

(2) Any document purporting to bear the signature of
any person-

(a) expressed to hold an office by virtue of which he
or she is, under this section empowered to sign a
document; or

(b) expressed to be duly authorised by the respective
state organ in subsection (1) to sign such a
document or the particular document,

shall, for the purposes of this Act, be deemed, unless the
contrary is proved, to be duly given, made or issued on
behalf of the Authority, the Regulatory Board, or other
state organ as the case may be.

136. The production of-
(a) a permit, or a copy of a permit, certified by the

Chief Executive Officer of the Authority; or
(b) a licensing certificate or copy of the licensing

certificate, certified by the Chief Executive Officer
of the Regulatory Board; or

(c) a licence, or a copy of a licence, certified by the
Chief Executive Officer of the Regulatory Board.

shall, without further proof be prima facle evidence in
any proceedings of the matters and things specified therein.

137. No matter or thing done or omitted by-
(a) the Cabinet Secretary, the Authority, the

Regulatory Board, or other state organ exercising
powers or functions under this Act;

(b) any person acting at the direction of the Cabinet
Secretary; or

(c) a person acting at the direction of the Authority,
the Regulatory Board , or a state organ

shall, if the matter or thing was done or omitted in good
faith for the purpose of executing this Act or any rule,
regulation or order made under this Act, subject the person
in his or her personal capacity to any action, suit, claim or
demand whatsoever.

L38. Despite anything contained in this Act, any
powers and functions conferred or imposed under this Act
affecting land shall, in respect of community land, be
exercised and performed subject to any written law relating
to that land.

No.43

Permit or licence
to be evidence of
power or functron

Protection from
liability.

Apphcation of Act
to community
land.


I i)90

No.43 Wuter 2016
139. (1) A requirement imposed by or under this Act Prrhrrc

for a person in thii section referred to as the designated consultarttttt
person to undertake public consultation in relation to any
application made. or action proposed to be taken under this
Act shall be construed as a requirement to ensure that this
section is complied with in relation to that application or
action.

(2) The designated person shall publish a notice. in
relation to the application or proposed action--

(a) in at least one national newspaper of daily
circulation. and

(b) in at least one Kenyan radio station broadcasting
in that locality.

(3) The notice shall-
(a) set out a summary of the application or proposed

action;

(b) state the premises at which the details of the
application or proposed action may be inspected;

(c) invite written comments on or objections to the
application or proposed action;

(d) specify the person or body to which any such
comments are to be submitted; and

(e) specify a date not earlier than thirty days after
publication of the notice by which any such
comments are required be received.

(4) The designated person shall make arrangements
for the public to obtain copies, at reasonable cost, of
documents relating to the application or proposed action
which are in the possession of the designated person.

(5) The designated person shall consider-
(a) any written comments received on or before the

date specified under subsection (3) (e); and

(b) any comments whether in writing or not received
at any public meeting held in relation to the
application or the proposed action at which the
designated person was represented or pursuant to
any other invitation to comment.


2016

1091

WltIer

(5) The designated person shall publish in accordance
with subsection (2), notice of the fact that a copy of the
decision and the reasons for the decision in relation to the
application or proposed action is available for public
inspection at the same premises as rvere notified under
subsection (3Xb).

(6) Regulations made under this Act may require, the
designated person to hold a public meeting in relation to
the application or proposed action.

140. (l) If the Authority is satisfied that, by reason of
an exceptional shortage of rain or by reason of accident or
other unforeseen circumstances. a serious deficiency of
water for essential domestic purposes exists or may occur
in any area, it may by order-

(a) declare that a crisis exists; and

(b) direct a person who has a supply of rvater in
excess of his or her needs for domestic purposes to
supply to the area concerned, or to a specified
person in the area, such quantity of water, and for
such period, as the order may specify.

(2) A person directed by an order under this section
who fails to comply with the provisions of the order
commits an offence-

(3) An order under this section may require or
authorise-

(a) the laying of pipes and the construction of works
on any land;

(b) the entry on to any land by servants or agents of
the Authority; and

(c) such other measures as the Authority may consider
necessary for the giving and taking of any such
water.

(4) If a person to whom an order under this section is
directed fails to comply with the order, the Authority may
direct any person to-

(a) take possession of the water supply and operate
any works of the person concerned for the
drawing, diversion or use of water; and

No.43

Specral porvers rn
case of shortagc of
water.


No.43

1092

Water

(b) exercise the person's rights in connection with
them during the period of the order, subject to any
conditions imposed by the order.

(5) It shall be the duty of any person exercising any
powers under this section to do so with reasonable care and
in such a manner as to cause as little damage as possible.

(6) Any payment made when undertaking the action
contemplated under subsection (4), or such proportion of it
as the Authority may determine, may be recovered by the
person acting under the direction of the Authority, as a debt
due from a person benefiting by the supply of water under
the order.

(7) A person who, without lawful authority, hinders or
obstructs any person acting in pursuance of an order under
this section, or interferes with any works constructed or
under construction in pursuance of such an order, commits
of an offence.

141. An inspection of any works authorized to be
constructed under this Act shall not be deemed to constitute
or imply any guarantee of the works constructed, or to
support or justify any claim against the Authority, the
Regulatory Board, the Cabinet Secretary, a county
government or a licensee in connection with any such
works.

142. (I) The Cabinet Secretary may make
Regulations with respect to any matter which by this Act is
required or permitted to be prescribed, or which is
necessary or expedient to be prescribed for the carrying out
or giving effect to this Act.

(2) Without prejudice to the generality of subsection
(1), such Regulations may make provision with respect
to-

(a) delegation by the Authority, the Board or a
licensee of their respective powers and functions;

(b) abstraction of ground water and works therefore,
including the licensing of borehole constructors;

(c) construction, extension or improvement of dams
and the licensing of persons carrying on business
as dam contractors;

2016

No warranty
rmphed by
rnspection.

Regulatrons.


2016

109-l

Water No.43

(d) the licensing of engineers
offering professional services
resources or water services:

(e) requirements in respect to
waters:

and other persons
in respect of water

bottled or mineral No 8 or loo2

(f) national public water works,
(g) information to be made available to the public

under the Actl
(h) requirements for the keeping of records and the

furnishing of information to the Authority or the
Board;

(i) the transfer of functions, assets, liabilities and
staff;

() rain water harvesting and household water storage;
or

(k)any saving, temporary or transitional provision in
consequence of the repeal of the Water Act,2002.

(3) Regulations made under this section may create
offences in respect of any contravention of the Regulations
and may for any such offence impose penalties not
exceeding one million shillings or imprisonment not
exceeding two years, or both such fine and imprisonment.

(4) Regulations made under this Act shall be
published in the Gazette and shall come into effect upon
publication.

143. (l ) A person shall not, without authority
conferred under this Act-

(a) wilfully obstruct, interfere with, divert or obstruct
water from any watercourse or any water resource,
or negligently allow any such obstruction,
interference, diversion or abstraction; or

(b) throw, convey, cause or permit to be thrown or
conveyed, any rubbish, dirt, refuse, effluent, trade
waste or other offensive matter or thing into or
near to any water resource in such manner as to
cause, or be likely to cause, pollution of the water
resource.

(2) A person who contravenes this section commits
an offence.

Obstruction or
pollution of
watercourse or
water resource


No.43

109.+

Water

144. (l) Without prejudice to any other remedy or
course of action, if a person contravenes any provision
under this Act, then, the Authority, the Regulatory Board,
the county government executive concerned or the licensee
concerned may, by order served on the person concerned,
require that person within a reasonable time specified in
the order to remedy the contravention and in particular-

(a) to clean up any pollution or make good any other
harm identified in the order which was caused to
any water resource by reason of the contravention;
or

(b) to remove or destroy any works, plant or
machinery employed for the purposes of the
contravention.

(2) Where the order in subsection (1) has not been
complied with, the Authority, the Regulatory Board, the
concerned county government executive or the licensee
may take such steps as are necessary to remedy the
contravention, and the expenses incurred in doing so shall
be recoverable at the instance of the Authority, the
Regulatory Board, the concerned county government
executive or the licensee concerned through an application
to the Tribunal.

(3) A person aggrieved by an order under this section
may appeal to the Tribunal.

145. A person shall not-
(a) wilfully obstruct, molest or hinder any inspector or

employee of a person authorised by the Cabinet
Secretary, the Authority, the Regulatory Board, a
county government executive or a licensee in the
exercise or performance of his or her powers and
functions under this Act;

(b) without the written permission of the Authority,
Regulatory Board, or the county government
executive, knowingly or wilfully-
(i) deface, alter or remove; or
(ii) cause to be defaced, altered or removed, any

documents, survey mark, water gauge, weir
or measuring device or other work, structure
or approval installed with the approval of the

20r6

Remedy of
defaults.

Mrscellaneous
offences.


1095

2016 \l'utcr No.43
Authority, Regulatory Board or county
government executive:

(c) wilfully hinder or interrupt, or cause to be hindered
or interrupted, any permit holder. employee,
contractor or agent of a permit holder, in the
lawful exercise or perfbrmance of any powers and
functions under this Act;

(d) without lawful authority, wilfully let off or
discharge water from the works any permit holder
so that the permit holder loses the use of that
water;

(e) without lawful authority, lay, erect or construct, or
cause to be laid, erected or constructed, any work
to connect with the works of any permit holder
which is capable of drawing water from that
works;

(f) unlawfully interfere with the works of any permit
holder; or

(g) neglect or fail to comply with lawful order given
under this Act.

(2) A person who contravenes the provisions of this
section commits an offence.

146. Without prejudice to the rights of any person to
bring proceedings in respect of an offence under this Act,
and subject to Article 157 of the Constitution, the
Authority, the Regulatory Board, a county government
executive or a licensee may institute and maintain criminal
proceedings in any court against any person accused of an
offence under this Act or under any Regulations or
Regulations made under this Act.

147. A person who commits an offence under this
Act, or under any Regulations or made under this Act,
shall, if no other penalty is prescribed in respect of the
offence, be liable to a fine not exceeding one million
shillings or to imprisonment for a term not exceeding two
years, or to both such fine and imprisonment.

PART IX_TRANSITIONAL PROVISIONS
148. (1) All property, assets, rights, liabilities,

obligations, agreements and other arrangements existing at
the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the Water

Crrmrnal
proceedrngs.

General penaltl

Transfer of
functlons. assets,
habilrty and staff
from Water
Resource
Management


No.43

I 096

Wuter

Resources Management Authority established under the
Water Act,20OZ shall upon commencement of this Act. be
deemed to have vested in or to have been acquired,
incurred or entered into by or on behalf of the Authority to
the same extent as they were enforceable by or against the
Water Resource Management Authority before the
commencement of this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
Water Resources Management Authority established under
the Water Act, 2OO2 in respect of any matter shall continue
by or against the Authority.

(3) A person who immediately before the
commencement of this Act was an employee of the Water
Resources Management Authority established under the
Water Act,2002 shall, on the commencement of this Act,
be deemed to be an employee of either the Authority or the
basin water resources boards as the case may be on terms
to be determined by the relevant bodies subject to the
advice of the Salaries and Remuneration Commission.

149. (I) All property, assets, rights, liabilities.
obligations, agreements and other arrangements not linked
to water services provision as provided for in section 148,
existing at the commencement of this Act and vested in,
acquired, incurred or entered into by or on behalf of the
National Water Conservation and Pipeline Corporation
established by the National Water Conservation and
Pipeline Corporation Order, 1988 shall, upon the
commencement of this Act be deemed to have vested in or
to have been acquired, incurred or entered into by or on
behalf of the Water Harvesting and Storage Authority to
the same extent as they were enforceable by or against the
National Water Conservation and Pipeline Corporation
before the commencement of this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
National Water Conservation and Pipeline Corporation in
respect of any matter, shall continue by or against the
National Water Harvesting and Storage Authority.

(3) A person who immediately before the
commencement of this Act was an employee of the
National Water Conservation and Pipeline Corporation

20t6

Authorrty to the
Authorlty

No 8 of2002

No 8 of2002

Transfer of
functrons. assets.
habrlrty and staff
from Natronal
Water
Con:ervation and
Prpelrne
Corporation to
National Water
Harvestrng antl
Storage Authonty

LN
1 988

No 270 of


2016

t091

Wuter

shall, on the commencement of this Act, be deemed to be
an employee of the National Water Harvesting and Storage
Authority on terms to be determined by the Salaries and
Remuneration Commission.

150. ( 1) All property, assets, rights. liabilities,
obligations. agreements and other arrangements existing at
the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the Water
Services Regulatory Board established by the Water Act,
2002 shall, upon commencement of this Act, be deemed to
have vested in or to have been acquired, incurred or entered
into by or on behalf of the Regulatory Board to the same
extent as they were enforceable by or against the Water
Services Regulatory Board before the commencement of
this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
Water Services Regulatory Board established under the
Water Act, 2002 in respect of any matter shall continue by
or against the Regulatory Board.

(3) A person who immediately before the
commencement of this Act was an employee of the Water
Services Regulatory Board established under the Water
Act, 2OO2 shall, on the commencement of this Act, be
deemed to be an employee of the Regulatory Board on
terms to be determined by the Salaries and Remuneration
Commission.

151. ( 1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements existing at
the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the Water
Services Trust Fund established by the Water Act, 2002
shall, upon the commencement of this Act, be deemed to
have vested in or to have been acquired, incurred or entered
into by or on behalf of the Water Sector Trust Fund to the
same extent as they were enforceable by or against the
Water Services Trust Fund before the commencement of
this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
Water Services Trust Fund established under the Water
Act, 2OO2 in respect of any matter shall continue by or
against the Water Sector Trust Fund.

No.43

Transfer of
functions. assets,
Labihtres and staff
from the Water
Servrces
Regulatory Board
to the Regulatory
Board.

No. 8 of 2002

No. 8 of2002.

No. 8 of 2002.

Transfer of
functlons, assets,
habrlrtres and staff
from the Water
Servrces Trust
Fund to the Water
Sector Trust Fund

No. 8 of 2002

No 8 of2002


No.43

I 098

Wdter

(3) Any person who immediately before the
commencement of this Act is an employee of the Water
Services Trust Fund established under the Water Act,20O2
shall, on the commencement of this Act, be deemed to be
an employee of the Water Sector Trust Fund on the terms
to be determined by the Salaries and Remuneration
Commission.

152. (l) Subject to the Transition to Devolved
Government Act, 2OI2 all property, assets, rights,
liabilities, obligations, agreements and other arrangements
existing concerning the operation of water services boards
at the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the water
services boards established by the Water Act,2002 shall,
upon commencement of this Act, be deemed to have vested
in or to have been acquired, incurred or entered into by or
on behalf of the water works development agencies to the
same extent as they were enforceable by or against the
water services boards before the commencement of this
Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
water services board established under the Water Act,2002
in respect of any matter shall continue by or against the
water works development agencies.

(3) A person who at the commencement of this Act is
an employee of the water services boards established under
the Water Act, 2002 shall be deployed as may be
determined by the Cabinet Secretary to the public sector
institutions or to the county governments.

(4) The Cabinet Secretary will publish, in
consultation with the county and public sector institutions
referred to in subsection (3), a plan of transfer of staff,
assets. liabilities and contracts.

153. (1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements linked to
water service provision existing at the commencement of
this Act and vested in, acquired, incurred or entered into by
or on behalf of the water services boards and the National
Water Conservation and Pipeline Corporation shall, upon
commencement of this Act. be deemed to have vested in or
to have been acquired, incurred or entered into by or on

2016

No ll ot 2(X)l

Transfer of
functions, assets,
habrlrty and staff
from rvater
servrces boards to
water works
development
agencles.

No. I of20l2.

No 8 of2002

No. 8 of 2002

Transfer of
functlons, assets,
habrlrtres.
obhgations,
agreements and
other
arrangements to
county or cross-
county water
servrce providers


2016

1099

Water

behalf the county water seryices providers or cross county
water services providers to the same extent as they were
enforceable by or against the water services boards and the
National Water Conservation and Pipeline Corporation
before the commencement of this Act.

(2) Any other public property, liabilities and contract
for water services provision shall be held in trust for the
public by the water services provider subject to such terms
or provisions as may be specified in the Regulations for the
exception of public property, Iiabilities and contracts which
shall be vested in cross-county water services providers.

(3) The county governments shall make agency
agreements and provision for the use of the public property
referred to in subsection (2), and any liabilities and
contracts not held by water services boards or county water
services providers in respect of such property.

154. The existing water services providers shall
continue to operate as the county water services providers
or cross county water services providers as the case may be
within the period specified in the transfer plan published by
the Cabinet Secretary.

155. (l) All property, assets, rights, liabilities,
obligations, agreements and other arrangements existing at
the commencement of this Act and vested, acquired,
incurred or entered into by or on behalf of the Water
Appeals Board established by the Water Act, 2OO2 shall
upon commencement of this Act be deemed to have vested
in or to have been acquired, incurred or entered into by or
on behalf of the Water Tribunal to the same extent as they
were enforceable by or against the Water Appeals Board
before the commencement of this Act.

(2) Any legal proceedings pending in the Water
Appeals Board established under the Water Act, 2OO2 rn
respect of any matter shall continue in the Water Tribunal.

(3) A person who immediately before the
commencement of this Act is an employee of the Water
Appeals Board established under the Water Act, 2002
shall, on the commencement of this Act be deemed to be an
employee of the Water Tribunal on terms to be
determined by the Salaries and Remuneration Commission.

No.43

Water service
provrders to
contrnue to
operate

Transfer of
functrons. assets.
habilrty and staff
from Water
Appeals Board to
Water Tnbunal

No. 8 of 2002.
No. 8 of 2002

No. ti of 2002.


No.43

I 100

Wuter

f 56.( I ) The Water Act 2002, is repealed.

(2) The National Water Conservation and Pipeline
Corporation Order, 1988, is revoked.
(3) Notwithstanding the repeals effected by this section-

(a) the Water Appeals Board, Water Resources
Management Authority, a water services board or
a water services provider and any other body
established under an enactment repealed by this
section shall be deemed to continue in being; and

(b) any person or body performing any functions
under the Water Act,2002 shall continue to do so,
and in so doing may exercise any power vested in
that person or body with respect to the
performance of those functions,

until the Cabinet Secretary, by notice in the Ga:ette
revokes this subsection in full or in part as may be
necessary.

(4) Without prejudice to subsection (3), Regulations
made under section 142(2)(r) shall require that the transfer
of functions, assets, liabilities and staff shall be completed
within a period of three years following the
commencement of the Act.

(5) The provisions of the Environmental Management
and Coordination Act, 1999 relating to water resources
conservation and protection and water pollution control
shall be exercised subject to the relevant provision of this
Act and only in the event that the Board has failed or
neglected to take appropriate action to exercise its powers
and functions under this Act.

157. A right to the use of water in any body of water,
being a right existing immediately before the
commencement of this section and which was acquired-

(a) under any provision of the Water Act, 2OO2
repealed by this Act;

(b) under the Water Ordinance, 1929;

(c) by specific grant, before lst July, 1935, by or on
behalf of the Government in any title under the
Government Lands Act or under the repealed
Crown Lands Ordinance, 1902 or

2016

Repcals, Savrrrgs
antl 'fransrtrottal

Prol rstons

No U of2002

L N 170/198n

No U of 2001

No 8 of 1999

Existing water
rrghts.

No. 8 of2002


2016

I l0l

llru tt r

(d) by agreement or otherwise.

shall be deemed to be a right conf-erred by a permit under
this Act.

158. A county government shall subject to sections
70(l) (a) and (b), 1 17 and 120 of the County Governments
Act,2012-

(a) give effect to national rvater services standards and
conditions set by the Regulatory Board for
purposes of ensuring consumer protection; and

(b) take into consideration the requirement relating to
tariffs gazetted by the Regulatory Board while
imposing tariff.

159. The County Governments Act, 2012 is amended
in-

(a) section ll7(1) by inserting the following new
paragraph immediately after paragraph (a) -

"(aa) comply with the respective policy and
standards provided by the National
Government":

(b) section 120 by inserting the following new
subsection immediately after subsection (l)-

"(lA) Notwithstanding subsection (1). a
county government or any agency delivering
services in the county shall adopt and implement
tariffs and pricing policy subject to the existing
National Government laws and policies."

No.43

Rcsponstbtlrty of
.r c()Ullt)
go vc IDnlent

('onsequentral

amcndments

No 17 of2012


No.43

1102

Water

SCHEDULES

FIRST SCHEDULE (s. 14)
MEMBERSHIP AND PROCEDURE OF BOARDS,

AND COMMITTEES

1. (l) This Schedule applies to-
(a) the board of the Authority;

(b) the board of the Regulatory Board ;
(c) the board of the water works development

agencies;

(d) the board of Water Sector Trust Fund;

(e) the board of the National Water Harvesting abd
Storage Authority ;_and

(f) a committee or tribunal established under this Act.
(2) ln this Schedule, unless the context otherwise

requires -
"board" means a board to which this Schedule applies;

"Chairperson" means the Chairperson of a board,
Tribunal or Committee;

"member" means a member of a board, Tribunal or
committee.

2. (1) In making an appointment to a board, the
Tribunal or a committee, the person making the
appointment shall have regard to-

(a) Article l0 of the Constitution of Kenya on
national values and principles of governance;

(b) Article 232 of the Constitution of Kenya on
values and principles of public service;

(c) the academic qualifications, professional
experience, expertise, character and integrity of
the potential candidates for appointment;

(d) gender, regional and ethnic diversity; and

(e) the degree to which water users, or water users of
particular kinds, are represented on the board or
committee at the time the appointment is made.

2016

Apphcatron of
thrs schedule.

Qualification of
members.

I

i


I103

2016 Wuter
(2) The Chairperson and members shall be identified

for appointment through an open competitive process.

3. (l) A member shall hold office for such term, not
exceeding three years, as may be specified in the
instrument of appointment.

(2) A member shall be eligible for re-appointment for
one further term.

4. (l) A member may be appointed to act in the
office of Chairperson during the illness or absence of the
Chairperson, and a member so appointed shall have all the
powers and be able to carry out all the functions of the
Chairperson.

(2) An appointment under this paragraph may be
made, and at any time revoked, by the person or body who
appointed or elected the Chairperson.

5. The terms and conditions of service of a member,
including the remuneration, allowances and other expenses
to which the member shall be entitled to, shall be
prescribed by Regulations made under this Act.

6. (1) The office of a member shall become vacant
if-

(a) such member dies, resigns or is removed from
office;

(b) such member absents himself or herself from four
consecutive meetings of the board or committee of
which reasonable notice has been given to the
member , unless-
(i) the board or committee has granted the

member leave to be absent from those
meetings; or

(ii) within four weeks after the last of the four
meetings, the member is excused by the board
or committee for having been absent from the
meetings;

(c) the member becomes bankrupt, applies to take the
benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her
remuneration for their benefit:

No.43

Term of offrce

Acting
charrperson

Terms and
condrtions of
servlce.

Vacancy in offrce
of member.


r 104

lY0tet 20t6No.43

(d) such mernber is adjudged or declared by any
competent court or tribunal to be of unsound
mind; or

(e) such member is convicted of an offence
punishable by imprisonment tor twelve months or
more.

(2) If the office of a member becomes vacant, the
respective appointing authority shall fill the vacancies as
prescribed in this Act.

7. (1) A member who has a direct or indirect Dtsclosureor
pecunrary rnterest

pecuniary interest -
(a) in a matter which is being considered, or is about

to be considered. at a meeting of a board or
committee of which he or she is a member; or

(b) in a thing being done or about to be done by the
board or committee,

shall, as soon irs possible after the relevant facts have
come to the member's knowledge, disclose the nature of
the interest at a meeting of the board or committee.

(2) A disclosure to the Board or committee that the
member concerned-

(a) is a rnember, or is in the employment, of a
specified company or any other body;

(b) is a partner, or is in the employment, of a specified
person; or

(c) has some other specified interest relating to a
specified company or other body or a specified
person,

shall be deemed to be a sufficient disclosure of the
nature of the interest in any matter or thing relating to that
company or other body or to that person which may arise
after the date of the disclosure.

(3) The board or committee shall cause particulars of
any disclosure made under subparagraph (1) or (2) to be
recorded in a book kept for the purpose and that book shall
be open at all reasonable hours to the inspection, free of
charge, of any person.

(4) After a member has, or is deemed to have,
disclosed the nature of an interest in any matter or thing


2016

I l0-5

Wrt ler

under subparagraph (1) or (2), the member shall not. unless
it is otherrvise determined-

(a) be present during any deliberation, or take part in
any decision of the board or committee with
respect to that mattert or

(b) exercise or perform any powers or functions under
this Act with respect to the subject matter of the
disclosure.

(5) A determination under subparagraph (4) may only
be made-

(a) in relation to the Management Board, Regulatory
Board, Board of Trustees or the Water Storage
Board by the Cabinet Secretary;

(b) in relation to a basin water resources committee
by the Authority; or

(c) in relation to a water services provider by the
Regulatory Board.

(6) Subparagraph (4) does not apply to a member
whose interest consists merely of the fact that the member
is the holder of a permit.

(7) A contravention of this paragraph does not
invalidate any decision of the board or committee or the
exercise or performance of any power or function under
this Act.

(8) A reference in this paragraph to a meeting of a
board or committee includes a reference to a meeting of
any subcommittees of the board or committee.

8. Except as otherwise provided by or under this
Act-

(a) meetings of a board or committee shall be held as
often as maybe necessary fbr the dispatch of their
business but they shall not be less than four any
financial year.

(b) a meeting of the board or committee shall be held
on such date time and place as the chairperson
may decide;

(c) the chairperson shall, on the written application of
one third of the members convene a special
meeting of the board or committee;

No.43

General
procedure


No.43

I 106

Water

(d) unless the majority of the total membership of the
board or committee otherwise agree, at least
fourteen days written notice of every meeting of
the board or committee shall be given to every
member of the board or committeel and

(e) the procedure for the convening of meetings and
for the conduct of business at those meetings shall
be as determined by the Chairperson.

9. A third of the members of a board or a committee
shall constitute a quorum at any meeting of the board or
committee.

10. The Chairperson or, in the absence of the
Chairperson, the acting Chairperson or in his or her
absence, a member appointed by the members then present
shall preside at a meeting of a board or committee.

11. (1) A decision supported by a majority of the votes
cast at a meeting of a board or committee at which a
quorum is present shall be the decision of the board or
committee.

12. Subject to paragraph 9, proceedings of the board
or committee shall not be invalid by reason only of a
vacancy among the members.

13.(1) The presiding member at a meeting of a board
or committee shall cause a record of the proceedings at the
meeting to be made.

(2) Records made for the purposes of this paragraph
may be destroyed after the expiry of the period prescribed
by Regulations made under this Act.

14. (1) The first meeting of the board of the Authority,
Regulatory Board, the Fund or the National Water Storage
Authority shall be called by the Cabinet Secretary.

(2) The first meeting of a basin water resources
committee shall be called by the Authority in such manner
as the Authority consider necessary.

(3) The first meeting of a water services provider
shall be called by the county government establishing it in
such manner as it considers necessary.

15. The First Schedule applies to the county and
cross-county water services providers and the Regulatory
Board will set additional criteria.

2016

Presrdrng
members.

Decrsrons.

Proceedrngs

Record of
proceedrngs.

Frrst meeting

Apphcatron of
first schedule.


2016

1 107

W0ter

SECOND SCHEDULE (s. al)

CONDITIONS RELATING TO CONSTRUCTION OF
WORKS

1. In this schedule, "authorised works" means works
the construction of which is authorised by a permit.

2. Any authorised works may, if the Authority or
Regulatory Board so determines, be inspected during
construction by its officers.

3. (1) Upon any inspection made under this
Schedule, the Authority or Regulatory Board may order
the permit holder to make any addition or alteration which
it considers necessary for the security of any authorised
works, whether completed or in the course of construction.

(2) If such an order is not complied with to the
satisfaction of the Authority or Regulatory Board within
such period as it may specify, the permit authorising
construction of the works may be cancelled or modified by
the Authority or Regulatory Board.

4. (1) A permit holder constructing any authorised
works-

(a) shall, during the construction, keep open for safe
and convenient travel all public roads and rights of
way publicly used as such, when they are crossed
or interfered with by the works; and

(b) shall, before water is admitted to the works,
construct to the satisfaction of the county
government concerned or, at the option of the
county government, refund to it the costs of
construction by it -
(i) a substantial bridge with proper and sufficient

approaches thereto over the works; and

(ii) such railings, fences, guard posts, culverts,
face-walls and other structures and
appurtenances as the county government, with
the approval of the Authority or
Regulatory Board, may declare to be necessary
in the public interest.

No.43

Meanrng of
"authonsed
rvorks".

Inspection of
works dunng
construction.

Works to be made
secure

Road crossrngs


No.43

I 108

\\'t r tt'r

(2) All respective bridges, approaches and
luppurtenances shall be maintained by the permit holder, or
alternatively, at the option of the county _governntent, by
the county government at the expense of the constructor.

(3) The county government concerned may at any
time at its own cost. renew or alter any such bridge or any
structure or works in connection therewith.

5. (l) Upon the expiration of the time limited by a
pennit for construction of rvorks authorised by the permit,
or where the construction is completed before the
expiration of that time. the permit holder shall submit a
completion certificate in the prescribed form.

(2) On submission of the certificate in sub-paragraph
(1), an officer appointed for the purpose by the Authority
or Regulatory Board, may make an inspection of the works
to ascertain that-

(a) the works have been completed in accordance with
the permit;

(b) the easements, if any, for the works have been
obtained;

(c) agreements, if any are necessary, have been
entered into for the supply of water for utilization
on lands which are not the property of the permit
holder or for the drainage of lands; and

(d) the works as constructed are of the required
capacity.

(3) If construction is not completed within the time
limited by the permit, a progress report shall be submitted
in lieu of a completion report, and the permit holder may
apply for an extension of time.

(4) An extension of time under subparagraph (3) may
be refused or may be sanctioned upon such terms as the
Authority or Regulatory Board may specify.

6. Upon the expiration of the time set out in the
permit or any extension of that time for the construction of
works authorised by the permit, the rights granted to the
permit holder under the permit shall cease, and any works
constructed, erected, fixed or acquired at the date of such
determination may be taken over and operated, or disposed

2016

Completron
certrllcate and
rnspection

Forferture of
rrghts rf works not
completed rvrthrn
trme allorved


I r09

2016 Water No.43
of, in such manner as the Authority or Regulatory Board
may specify.

7. (l) Every permit holder shall maintain and retain works to be kept
his or her works in a good, proper and workman like rn reparr
manner to the satisfaction of the Authority or Regulatory
Board.

(2) Pursuant to subparagraph (l),every permit holder
shall ensure that-

(a) the works at all times are of sufficient strength
and capacity for the fulfilment of the purposes for
which they were constructed; and

(b) no damage occurs to any road, property or work in
their vicinity.


No.43

ll t0
Water

THIRD SCHEDULE (s. 39)

EASEMENTS

1. The acquisition of an easement in accordance with
this schedule shall not affect the burden or benefit of any
encumbrance on the land existing at the date of the
acquisition or the liability or right of any person in respect
thereof.

2. (1) An easement shall include the right of access,
along a route to be approved by the Authority or
Regulatory Board after consultation with the owner, to any
piece of land contiguous to the water of the permit holder
in so far as may be necessary for the purpose of
constructing, inspecting. maintaining. operating or
repairing the works of the permit holder and for any
purpose necessary for the effective enjoyment of the
easement.

(2) The permit holder shall give reasonable notice to
the occupier of the land over which the easement is held of
his or her intention to enter the land for any of the purposes
mentioned in this paragraph.

3. A permit holder who has acquired an easement
which authorises the construction of a canal-

(a) shall take and maintain adequate measures for
preventing the introduction into the canal of a
greater quantity of water than that which the canal
is capable of carrying; and

(b) shall not cause damage to any land in respect of
which the easement is held by permitting the
accumulation of weeds, silt or any other
obstruction or nuisance which might cause
flooding, or any other damage.

4. (1) If damage is caused, as the result of works of a
permit holder to the land over which the easement is held,
the landholder may require the permit holder to construct
such additional works as are necessary, in the opinion of
the Authority to prevent such damage, and the Authority
may by order require the permit holder to construct such
additional works at his or her sole expense.

(2) lf the permit holder fails to comply with an order
of the Authority given under this paragraph, the Authority
may cancel the permit.

2016

Encumbrances

Easement
rncludes rtghts of
ACCESS

Permrt holder kr
avord floodrng
lands and
malntaln canal
satrsfactonly.

Damage caused
by rvorks of
permit holder.


2016

1111

Wutat

5. (l) A permit holder who has acquired an easement
for the construction of works on another landholder's land
which prevents the landholder passing freely over or on the
land or interferes with his or her existing works, structures
or devices upon the land shall, at his or own expense,
construct and maintain in repair, to the satisfaction of the
Authority or Regulatory Board and under such conditions
as it may prescribe-

(a) such bridges and other structures and devices as
shall make communication safe and convenient;
or

(b) such works, structures or devices as the Authority
or Regulatory Board considers necessary to
enable the landholder to enjoy the use of any
work, structure or device interfered with.

(2) Any permit holder who fails to comply with the
provisions of this paragraph commits an offence.

6.(1) A permit holder claiming an easement under this
Act shall serve a notice on the holder of the land on, over
or through which the permit holder desires to acquire the
easement, and shall in the notice state the following
particulars, and such further particulars as may be required
by Regulations made under this Act-

(a) a description of the proposed works and a
statement of their use;

(b) a statement of the quantity or discharge of water,
if any, to be diverted or dealt with;

(c) a map showing clearly the nature and locality of
any works or area of swamp or land to be
reclaimed, if the easement is for reclamation of a
swamp or lands;

(d) a statement of the area of the land (if any) which is
or will be-
(i) occupied by the works;
(ii) flooded as a result of the works;
(i) required for the purposes of inspection and

maintenance of the works;

No.43
Permit holder to
construct works to
enable landholder
to enJoy his works
rf rnterfered with.

Permit holder
desiring easement
to serve notice on
landholder.

I

I
t


No.43

(ii)

1t12

Wuter 2016
required for the excavation or collection of
material for the works, or for the deposit of
soil or material derived from the works;

required for a road or roads to obtain access
to the works: or

(iii)

(iv) required for the control or prevention of
pollution of the water to be used; and

(e) a statement of the compensation which is offered
and the period of time during which the permit
holder wishes to enjoy the easement.

(2) A copy of the notice shall be sent by the permit
holder to the Authority or Regulatory Board.

7. If the landholder agrees to the claim for an
easement, either as originally proposed or as modified by
agreement, the permit holder-

(a) shall execute a deed including the particulars of
the claim as agreed and any other relevant matter;
and

(b) after the execution of the deed by the parties
concerned, shall send two copies of the deed
certified by the Registrar of Titles to the
Authority.

8. If the landholder does not, within two months after
the service of the notice provided for in paragraph 6 of this
Schedule, agree to the claim for an easement or to any
other matter necessary for an easement, the permit holder
may apply to the Authority, in the prescribed manner, for
an easement, and shall serve notice of such application
upon the landholder.

9. (l) The Authority may either dismiss the claim for
an easement or grant the claim with or without
modification and subject to such conditions, and to the
payment of such compensation. as the Authority shall
deem just.

(2) The Authority shall notify the permit holder and
the landholder of its decision.

(3) When the claim for an easement has been granted
the permit holder shall embody the particulars and other
matters pertaining to an easement granted under

Consent of
landholder to
easement.

Application
where landholder
does not consent.

Determination of
application for
easement.


2016

I113

Wttter

subparagraph (1) of this paragraph in a deed or other
instrument suitable for registration, and shall tender the
deed or instrument, together with the amount of any award
of compensation made, to the landholder for execution.

(4) If the landholder fails within such time as may be
specified by the Authority to execute and deliver the deed
or instrument to the permit holder, the Authority may do so
on his or behalf, and thereupon the deed or instrument shall
have the same effect as if it had been executed by the
landholder.

(5) The Registrar of Titles shall register the deed or
instrument against the title affected, and two copies of such
deed or instrument, certified by the Registrar of Titles,
shall be sent by the permit holder to the Authority.

(6) Where an appeal has been lodged under
subparagraph (2) of this paragraph, no action shall be taken
under subparagraphs (3), (4) or (5) of this paragraph until
the appeal has been decided.

10.(1) An easement acquired under this Act Shall Lapse of
easement

No.43

Permrt holder to
keep rvorks ln
state of repair

lapse-
(a) if the works authorised are not completed and the

water is not utilized within one year from the date
of acquiring the easement or within such further
period as the Authority may determine; or

if, at any time, substantial use is not made of the
permit in accordance with the terms of the permit
for a continuous period of two years, or such
longer period as the Authority may, from time to
time, determine.

(2) Upon the lapse of an easement, the Authority shall
notify the Registrar of Titles, who shall, without charge,
cancel the registration of the easement against the title
affected.

11. (1) If any work constructed on the land of a person
other than the permit holder is out of repair or require
cleaning, the permit holder or his or her agent shall, if
required in writing by the landholder, repair or clean such
works within a reasonable time.

(2) lt the permit holder fails to keep the works in a
state of repair the landholder may carry out the necessary

(b)


No.43

t1 14

Water

repairs or cleaning and may recover the cost from the
permit holder in any court of competent jurisdiction.

(3) The repairs or cleaning under this paragraph shall
not be unreasonably demanded, and, in the event of a
dispute between the parties, the Authority shall decide what
constitutes reasonable repairs or cleaning.

(4) A permit holder who allows any such works to fall
into disrepair or, in the opinion of the Authority to be in
such a state as to require cleaning, shall be liable for all
damage which may arise as a consequence.

12. (l) Any landholder on, over or through whose
lands an easement has been applied for or been granted
may, by application to the Authority either before or after
the construction of any works, apply for a permit to make
use of such works or the proposed works for the diversion,
abstraction, storage or use of whatever water he or she may
become entitled to divert, store or use under this Act.

(2) Before such a permit or authorisation is issued by
the Authority-

(a) the landholder shall prove, to the satisfaction of
the Authority, that the works of the permit holder
can be satisfactorily used for the purpose of the
landholder and without material detriment to the
permit holder; and

(b) a proportionate cost of the works shall be paid by
the landholder to the permit holder who
constructed or is constructing the works as may be
agreed on between the parties or, failing
agreement, as may be determined by the Tribunal.

(3) The permit holder may require the landholder to
enter into an agreement to continue to pay the
proportionate cost of maintaining the portion of the works
made use of, until either party has in writing surrendered
such right of user and, in the event of disagreement, the
matter shall be decided by the Tribunal.

(4) If such works require modification to enable the
landholder to enjoy their use, he or she shall, unless the
matter is otherwise agreed, pay to the permit holder-

(a) the entire cost of modifying them in the manner
approved by the Authority; and

2016

Land holder may
demand and
obtarn use of
works.


I I l-s

2016 Wutcr No.43
(b) the cost of constructing and maintaining such

devices fbr apportioning the quantities of lvater as
the Authority may prescribe or approve.

(5) When it is proved to the satisfaction of the
Authority that due to altered conditions it is just and
equitable to revise the rate of payment,, the Authority shall
inform the parties concerned, and, failing agreement
between such parties on any such revision of the rate of
payment, the matter shall be referred to and decided by the
Tribunal.

13. When works have been excavated by a permit
holder on another person's land-

(a) any land used solely for the deposit of excavated
material from the works executed shall,
notwithstanding the payment of compensation and
except in the case of an easement for drainage or
reclamation, remain available to the landholder for
his or her own purposes; and

(b) the landholder may remove such excavated
material except that, no damage shall be done to
the works of the permit holder, nor shall the works
be obstructed or interfered with by such removal.

14. The deed or other instrument creating an easement
acquired under this Schedule shall be registered against the
title affected, and a plan, which shall be approved and
signed by, or by the Authority of, the Director of Surveys,
shall be attached to each document granting the easement.

15. ( l) An easement acquired under this Act shall
determine if and when the permit for the exercise of rights
under which the easement has been acquired is cancelled as
provided for in this Act.

(2) On the determination of the relevant permit, any
works constructed by the permit holder on the lands of
another person shall, where the permit holder is the sole
permit holder. become the property of such other person
unless removed by the permit holder-

(a) voluntarily. within two years from the date of such
determination; or

(b) at the order of the Authority at the request of the
other person.

16. On the determination or variation of an easement,
the Authority shall notify the landholder over whose land
the easement was granted, and the Registrar of Titles and

Landholder may
use land occupied
by excavated
materral for own
purposes.

Easements to be
regrstered

Determrnation of
easement-

Regrstratron of
determination or
varration of
easement.


No.43

1116

Water

the landholder concerned may, at the expense of the person
in whose name the easement is registered, take such action
as is necessary to cause his or her title to be freed from the
easement or to record the variation, as the case may
require.

2016


2016

t tt7

Water

FOURTH SCHEDULE (s.56)
ABSTRACTION OF GROUND WATER

1. This Schedule shall apply to the extraction of
ground water.

2. (1) A person shall not construct or begin to
construct a borehole or well without having first given to
the Authority notice of his or her intention to do so.

(2) A person intending to construct a borehole or well
shall apply to the Authority for a permit and shall comply
with such requirements as may be imposed by the
Authority.

(3) Unless otherwise exempted, a person constructing
a well shall keep a record of the progress of the work which
shall include-

(a) measurements of the strata passed through and
specimens of such strata;

(b) measurements of the levels at which water was
struck; and

(c) measurements of the quantity of water obtained at
each level, the quantity finally obtained and the
rest level of the water.

(4) A person to whom subparagraph (2) applies shall
allow any person authorized by the Authority, at any
reasonable time-

(a) to have access to the well;

(b) to inspect the well and the material excavated from
it;

(c) to take specimens of such material and of water
abstracted from the well; and

(d) to inspect and take copies of or extracts from the
record required to be kept under this paragraph.

(5) Where the person constructing a well on any land
is not the occupier of the land, the obligation to allow any
person authorized by the Authority to exercise his or her
rights under this paragraph shall be the obligation of the
occupier of the land as well as of the person constructing
the well.

No.43

Apphcatron of
this Schedule.

Notrce of
rntentron to
construct well


No.43

ll18
Vhtter 2016

(6) The Authority may by notice, rvhether
conditionally or subject to specified conditions, exempt any
person. in such circumstances as may be specified in the
notice, from the operation of subparagraphs (2) and (3).

3. A person constructing a rvell. if required to keep
records under this Part, shall, lvithin one month of the
cessation of the construction send to thc Authority -

(a) a complete copy of the record. together with the
specimens ref'erred to in the recordl

(b) particulars of any test made, before such cessation
of the construction, of the yield of water,
specifying-

(i) the rate of flow throughout the test and the
duration of the test: and

(ii) where practicable, the water levels during the
test and thereafter until the water level has
returned to its natural level;

(c) a statement of whether, in his opinion (as
determined by tasting) the water is suitable for
drinking or is hi-ehly mineralized, as the case may
be; and

(d) if required by the Authority, such water samples as
it may consider necessary.

4. ( I ) Where any well is being constructed within the
proximity of an existing well at a distance to be specified
by the Authority, the Authority may by notice require the
person constructing the well to apply tests, to be specified
in the notice. to the existing well and to supply to the
Authority the particulars of the results of such tests
including the rate of pumping and rest levels of water.

(2) Where the well to which the tests are to be applied
is situated on the property of a person other than the person
constructing the well and the person constructing the well
is unable for any reason to apply the test. the Authority
may, by notice. require the person upon whose property the
existing well is situate to apply the tests to be specified in
the notice to him or her, and to supply to the Authority the
particulars of the results of such tests.

Subnrrssron ol
records

Tests on
nerghbounng
rve lls


2016

lll9
Water

5. Where any borehole contractor constructs a
borehole for the purposes of a well on land belonging to or
occupied by any other person, the borehole contractor shall
be deemed, for the purposes of this Act, to be the person
constructing the well.

6. (1) A person constructing a well or the owner or
occupier of the land on which construction takes place may
give notice to the Authority requesting that-

(a) any copy of, or extract from, the record required to
be kept under this Act; or

(b) any specimen taken or any other particulars
connected with the well, be treated confidentially

(2) ln response to such the notice mentioned in
subparagraph (1), the Authority shall, if sufficient cause
has been shown, to not allow such copy, extract, specimen
or other particulars, except in so far as it contains or affords
information as to water resources or supplies, to be
published or shown to any person other than a member of
the Authority without the consent of the person giving the
notice.

(3) If at any time the Authority gives notice to the
person constructing a well or the owner or occupier of the
land on which the construction is being done, that, in its
opinion, his or her consent is unreasonably being withheld
the person may, within three months after the notice given
by the Authority, appeal to the Tribunal.

(4) If, at the expiration of the period in the notice, no
appeal has been made or, after hearing the appeal, the
Tribunal does not make an order restraining it from doing
so, the Authority may proceed as if such consent had been
given.

7. (1) A person shall not, except with the written wasteorground
permission of the Authority -

(a) cause any ground water to run to waste from any
well, except for the purpose of testing the extent or
quality of the supply or cleaning, sterilizing,
examining or repairing the well;

(b) abstract from any well water in excess of his
reasonable requirements and which he cannot use
in a reasonable and beneficial manner,

No.43
Contractor
deemed to be
constructor

Records may be
requlred to be
treated as
confidential.

i

I


No.43

I r20

Water

(c) conduct the water from any well through any
channel or conduit so that more than twenty per
cent of the water is lost between the point of
appropriation and the point of beneficial use
except that, where the water from any well is
conducted through channels or conduits together
with water from other sources, no person shall
permit the waste of more than twenty per cent of
the water in conducting the water from the point of
appropriation of the well water to the point of
beneficial use;

(d) use any water from any well for the purpose of
domestic use or the watering of stock, except
where such water is carried through pipes fitted
with float valves or other satisfactory means of
control, to prevent waste: Except that, where
ground water interferes or threatens to interfere
with the execution or operation of underground
works, whether water works or not, the Authority
may, in any particular case, by notice permit such
water to waste upon such conditions, regarding
quantity and method of disposal, as the notice may
specify.

8. (1) Any well which encounters salt water, in this
Part referred to as a "defective well", shall be securely
cased, plugged or sealed off by the owner of the well, so
that the salt water is confined to the strata in which it was
found, and such casing, plugging or sealing shall be done in
such a manner as effectively to prevent the salt water from
escaping from the strata in which it was found into any
other water-bearing strata or on to the surface of the ground
except where the Authority or the Regulatory Board has
approved the use of desalination systems to make such
water potable.

(2) This paragraph shall apply to wells constructed
before or after the commencement of this paragraph.

9. Any person who re-cases or removes the plugs or
seals from a defective well, or deposits, or causes or
knowingly permits the deposit of, any dirt, rubbish or other
material in any such well except with the written
permission of the Authority commits an offence.

2016

Defectrve wells

Interference wrth
defectrve well

l

I


2016

1t2l

Water

10. (1) Before any defective well is re-cased or the
plugs or removed, the owner of the well, or his duly
authorized representative. shall file with the Authority an
application for permission to carry out such re-casing or the
removal of the plugs or seals.

(2) The application shall contain such information as
the Authority may require in relation to-

(a) the name and address of the owner of the well;

(b) its location, depth and size;

(c) the amount and location of casing or sealing in the
well;

(d) the distance below the surface of the ground to the
water level in the well;

(e) the strata penetrated;

(f) the distance from the surface of the ground to the
top of the salt water stratum and the thickness of
the salt water stratum; and

(g) any other matter specified by the Authority in
respect of the well.

(3) The application shall also state the methods
proposed for re-casing, re-plugging or resealing of the well.

11. The Authority, after consideration of any
application under paragraph 10, may call for additional
data, and may make such investigation as it considers
necessary, and if the well is found to contain salt water,
shall by order give instructions to the applicant,
specifying-

(a) the work that shall be done by the owner to place
it in a satisfactory condition; and

(b) the time that shall be allowed to complete the
work, and may inspect such work while it is in
progress.

12. The Authority may on its own initiative. or upon
information or complaint from any source, make an
examination of any well suspected of containing salt water,
and may by order issue instructions for curing any defects
in the well.

No.43
Apphcatron to
carry out work on
a defectrve well.

Instructron to deal
wrth defective
well

Authority may
inspect the well


No.43

I t22

Wuler

13. (1) Upon completion of the works in pursuance of
any instructions issued under this Schedule-

(a) the contractor who carries out the work: or

(b) if the work is done without a contractor, the owner
of the well, shall file with the Authority a
statement sworn or affirmed specifying in detail
the manner in which such work was done.

(2) The statement shall be filed within thirty days after
the completion of the work.

14. (l) Upon receipt of a statement under paragraph
13, the Authority shall determine, either from the statement
or from inspection or test, whether the work has been
satisfactorily performed.

(2) lf the Authority determines that the work has not
been satisfactorily performed, it shall by order issue
additional instructions specifying the additional work
required to place the well in a satisfactory condition, and
specifying the time for the completion of such additional
work.

(3) Upon the completion of such additional work, a
statement sworn or affirmed shall be filed with the
Authority as provided for in paragraph 13.

15. Every person abstracting ground water by means
of a well shall, in order to prevent contamination or
pollution of the water-

(a) effectively seal off to a sufficient depth any
contaminated or polluted surface or shallow water
in rock openings or soft broken ground;

(b) effectively seal the top of the well between the
surface casing and the internal pump column, and
the suction or discharge pipe;

(c) dispose of all return or waste water by means other
than by return to the well;

(d) extend the well casing to a point not less than
twenty centimetres above the elevation of the
finished pump house or pump pit floor;

(e) use either welded or screw type well joints on the
casing if made of metal;

2016

Sworn statement
to be submitted.

Additional work
on defective well

Contaminatron
and pollution of
ground water


r 123

2016 Wdtcr
(1) dispose of effluents or drainage l-rom any

household. stable factory, trade premises or other
premises in such il manner as will prevent any
such etfluent or drainage from reaching such seal
or ground rvater; and

(g) carry out such other work as the Authority may by
order direct. from time to time, for the prevention
of contamination or pollution.

16. If-
(a) during the construction of a well, water is

encountered in an aquifer; and
(b) water from a water table or lower aquifer tends to

flow fiom the upper aquifer to the lower aquif-erl
and

(c) in the opinion of the Authority this is likely to
prove detrimental to the ground water resources of
the area,

(d) the Authority may order what special measures
shall be taken by the owner of the rvell so that the
water from the higher aquifer cannot flow to the
lower aquifer.

17. Every artesian well and every sub-artesian r,vell
shall be efficiently cased, capped or furnished lvith such
appliances as will readily and effectively arrest and prevent
the flow there from over the surface of the ground or
wasting from the well through the strata through which it
passes.

18. (l) A person who neglects or fails to comply with
any order or requirement given or imposed on him by or
under this Schedule shall be guilty of an offence and liable
on conviction to a penalty not exceeding one hundred
thousand shillings.

(2) Liability of any person under this paragraph is in
addition to any liability of the person under paragraph 18.

(3) A licensee shall pay compensation on just terms to
the owner or occupier, as the case may be, of any premises
within the prescribed area in respect of-

(a) any curtailment of or injury to his legal rights by
restrictions imposed by such Regulations; and

(b) any expenses incurred by him complying with a
requirement to construct and maintain any works,
or take other action, which would not. but for the

No.43

Authority ma1,
ordet specral
mcasures to
safeguard ground
watel resources

Artesran rvells to
be cased.

Offcnce and
penalty'


No.43

tt24
Water

provisions of this Act, lawfully have been
required,

and any disagreement as to the amount of such
compensation shall be resolved and determined by the
Tribunal.

(4) Where any person has failed to comply with a
requirement notified to him and-

(a) he has not appealed against the requirement and
the time for appeal has expired; or

(b) his appeal has been dismissed or the requirement
has been affirmed or varied in consequence of his
appeal and he has failed to comply with the
requirement as so affirmed or varied, the licensee
may, without prejudice to his right to take
proceedings in respect of such failure, execute and
keep in good repair the works specified in the Cap'2
requirement as originally made or as varied on
appeal and may in the Tribunal recover from the
owner or occupier concerned, as a debt, expenses
reasonably incurred by him in so doing.

(5) Expenses recoverable under subparagraph (4) do
not include expenses incurred in respect of the licensee
may, without prejudice to his right to take proceedings in
respect of such failure, execute and keep in good repair the
works specified in the requirement as originally made or as
varied on appeal and may in the Tribunal recover from the
owner or occupier concerned, as a debt expenses
reasonably incurred by him in so doing.

(6) Expenses recoverable under subparagraph (4) do
not include expenses incurred in respect of-

(a) works the construction of which; or
(b) action which,
could not lawfully have been required otherwise than

upon payment of compensation by the licensee.
(7) Two or more licensees may combine for the

purpose of making and enforcing Regulations under this
section, and the provisions of this Act shall in any such
case have effect as if references therein to a references
were references to two or more such licensees acting
jointly.

(8) Section 34 of the Interpretation and General
Provisions Act shall not apply to any regulation made
under this section.

2016


nt ei ee tena elite eee eee

SPECIAL ISSUE ww

Kenya Gazette Supplement No. 164 (Acts No. 43) .. C


REPUBLIC OF KENYA

KENYA GAZETTE SUPPLEMENT

ACTS, 2016

NAIROBI, 20th September, 2016

CONTENT

Act —

The Water Act, 2016.......0 ccc cc cccccsscsssesccceccceceseeecesscssecssecauscascsaseeecsssenseens 1019


| WATIONAL COUNC! FOR LAW REPORTING
RECEIVED

OF OCT 2016

P.O. Box 10443-00100
NAIROBI, KENYA
TEL: 2719231 FAX: 2712694


PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI


SS I A gE — RR

1019
THE WATER ACT
No. 43 of 2016
Date of Assent: 13th September, 2016

Date of Commencement: By Notice

ARRANGEMENT OF SECTIONS

PART I—PRELIMINARY
Section

1—Short title and commencement.
2— Interpretation.

3—Purpose of the Act.
4—Principles.

PART IT—OWNERSHIP, USE AND MANAGEMENT
OF WATER RESOURCES

5— Ownership of resources.

6—Regulation of the management and use of water
resources.

7—Rights to water resources.

8—National Public Water Works.

9— Administration of National Water Resources.
10—National Water Resource Strategy.

PART III—REGULATION OF THE MANAGEMENT
AND USE OF WATER RESOURCES

Water Resources Authority

11—Establishment of the Authority.
12—Functions of the Authority.
13—Powers of the Authority.

14— Management Board.

15—General duties and responsibilities of the
Management Board.

16—Powers of the Management Board.
17—Chief Executive Officer.

18—Removal of the Chief Executive Officer.
19—Employees of the Authority.


1020
No. 43 Water 2016

20—Classification of water resources and determination
of quality objectives.

21—National Monitoring and Information System.

22—Protection of catchment areas.

23 —Conservation of ground water.

Basin areas
24— Basin areas.

25—Establishment of basin water resources committee.
26— Basin water resources committee.

27—Functions of the basin water resources committees.
28— Basin area water resources management strategy.

29— Establishment and functions of water resource users
associations.

National Water Harvesting and Storage Authority

30— Establishment of the National Water Harvesting and
Storage Authority.

31— Water Harvesting and Storage Board.

32—Powers and functions of the Water Storage
Authority.

33—Chief Executive Officer.
34—Removal of Chief Executive Officer.

35 —Employees of the Water Storage Authority.

Regulation of Water Rights and Works

36— Water permit.

37 —Exemptions.

38— Unauthorized construction and use of works.
39— Easements for works.

40— Procedure for obtaining a permit.

41 —Conditions of permits.

42 —Charges for water use.

43 — Considerations for the issue of permits.

44— Issue of permits in exceptional cases.

45 — Permit to be linked to land or undertaking.


1021
2016 Water
46 — Variation of permit.

47—Power to require permit applications or re-
applications.

48—Cancellation of a permit.

49—Cancellation or variation of a permit for failure to
observe terms and conditions.

50—Variation of permit following a hydrographical
survey.

51—Variation of a permit at the request of the permit
holder.

52— Abandonment of permitted activities.
53—Surrender of permits.
54— Register of permits.

55— Appeals.
Ground Water

56— Abstraction of ground water.
Entry on Land

57—Entry by permit holder.

58—Entry by the Authority.

59—Entry by licensee.

60— Manner of entry.

61 — Powers of inspectors.
62—Requirement to state name and address.

PART IV— WATER SERVICES
General

63—Right to clean and safe water.
64— National Water Services Strategy.
Water Works Development Agencies

65 — Establishment of water works development
agencies.

66— Boards of the water works development agencies.
67— Criteria for water works development agencies.

68—Powers and functions of the water works
development agency.

69— Hand over of completed works.

No. 43


1022

No. 43 Water 2016

The Water Services Regulatory Board

70— Establishment of the Regulatory Board.

71—Regulatory Board.

72 — Powers and functions of the Regulatory Board.
73—Employees of the Regulatory Board.
74—Licensing.

75 —Register of licensed water services providers.
76— Revocation of licence.

77—Establishment of water service providers.
78—Responsibilities of the water services provider.
79— Board of a water services provider.
80—Member of the Board not to hold public office.
81—Extension of services to rural or developing areas.
82— Appeals to the Regulatory Board.

83—County owned water services provider to hold
assets for the public.

84— Cabinet Secretary to make Regulations.
85 — Provision of water services.
86— Procedure and requirements for obtaining a licence.

87—Application for a_ licence subject to public
consultation.

88—Licence not to confer any rights of proprietorship to
the licensee.

89—Licence fees.

90— Conditions of licence.

91— Duty to provide water services.
92—Consumer complaints.

93— Public Private Partnerships.

94 — Special provisions with respect rural areas not
commercially viable.

95 — Variation of terms or conditions of the licence.
96— Areas of water service.

97—Clustering of areas of water service provision.
98 — Variation of areas service.


OT ee

EEE

1023

2016 Water

99—Provision of water services outside the area of
supply.

100—Supply of bulk water.

101—Default by the licensee.

102—Special regulatory regime.

103—Transfer of functions of licensee.

104— Agreements as to protection of sources of water,
etc.

105—Power of licensee to prohibit or restrict use of
water.

106— Duty to enforce Regulations on water services.

107—Execution of works for protection of water.
108—Control of trade effluent.

109— Sewerage services levy.

110—Compulsory acquisition of land.

111—Regulatory Board to establish information system.
112— Annual report.

PART V—WATER SECTOR TRUST FUND

113—Establishment of the Water Sector Trust Fund.
114— Objects of the Fund.

115—Board of trustees of the Fund.

116—Functions of the Board of Trustees.

117— Monies of the Fund.

118—Staff of the Fund.

PART VI—DISPUTE RESOLUTION
119—Establishment of the Water Tribunal.

120— Staff of the Water Tribunal.
121—Jurisdiction of the Tribunal.

122 — Proceedings of the Tribunal.

123— Determination of appeals and disputes.

124— Appeals to the Land and Environment Court.

125 — Decisions binding if no appeal within thirty days.

PART VII—FINANCIAL PROVISIONS

126—Funds of the Authority, Regulatory Board, Water
Harvesting and Storage Authority and Water
Works Development Agencies.

No. 43


1024
No. 43 Water 2016

127—Financial year.

128— Annual estimates.

129— Accounts and audit.

130— Retention of charges and fees.

131—Funds collected by water services providers.

132—Income from water permits abstraction and water
user fees.

PART VIII— GENERAL PROVISIONS

133 —Service of notices.
134— Order, etc., to be in writing.
135— Authentication of documents.

136— Permit or licence to be evidence of power or
function.

137 —Protection from liability.

138— Application of Act to community land.
139— Public consultation.

140— Special powers in case of shortage of water.
141 —No warranty implied by inspection.
142—Regulations.

143 — Obstruction or pollution of watercourse or water
resource.

144— Remedy of defaults.
145— Miscellaneous offences.
146—Criminal proceedings.
147—General penalty.

PART IX—TRANSITIONAL PROVISIONS

148—Transfer of functions, assets, liability and staff
from Water Resource Management Authority to
the Authority.

149—Transfer of functions, assets, liability and staff
from National Water Conservation and Pipeline
Corporation to National Water Harvesting and
Storage Authority.

150—Transfer of functions, assets, liabilities and staff
from the Water Services Regulatory Board to the
Regulatory Authority.


-- wer

a Se eee wee -- ge

—_——

Owe ee
.

1025

2016 Water

151—Transfer of functions, assets, liabilities and statf
from the Water Services Trust Fund to The Water
Sector Trust Fund.

152—Transfer of functions, assets, liability and _ staff
from Water Services Boards to Water Works
Development Agencies.

153—Transfer of assets. right, liabilities, obligations.
agreements and other arrangements to county or
cross-county water service providers.

154—Public water service providers to continue to
operate.

155—Transfer of functions, assets, liability and staff
from Water Appeals Board to Water Tribunal.

156—Repeals, savings and transitional provisions.
157—Existing water rights.
158—Responsibility of a county government.
159— Consequential amendments.

SCHEDULES

FIRST SCHEDULE— MEMBERSHIP AND
PROCEDURE OF BOARDS
AND COMMITTEES

SECOND SCHEDULE—CONDITIONS RELATING
TO CONSTRUCTION OF
WORKS

THIRD SCHEDULE— EASEMENTS

FOURTH SCHEDULE— ABSTRACTION OF
GROUND WATER

No. 43


1026
No. 43 Water

THE WATER ACT, 2016

AN ACT of Parliament to provide for the regulation,
management and development of water resources,
water and sewerage services; and for other
connected purposes

ENACTED by the Parliament of Kenya as follows—
PART I—PRELIMINARY

1. This Act may be cited as the Water Act, 2016 and
shall come into operation on such a date as the Cabinet
Secretary responsible for matters relating to water may, by
notice in the Gazette, appoint, and different dates may be
appointed for the coming into operation of different
provisions.

2. (1) In this Act, unless the context otherwise
requires —

“Authority” means the Water Resources Authority
established under section 11;

“aquifer” means an underground geological formation
able to store and yield water;

“basin area’ means an area designated as such under
section 24;

“basin water resources committee” means a water
basin organization established under section 25;

“bulk water” means water supplied to a water services
provider by the water services provider making the supply;

“Cabinet Secretary” means the Cabinet Secretary
responsible for matters relating to water;

“catchment area” means an area that is part of a basin
designated as such under section 22;

“charges”, in relation to the use of water from a water
resource, includes fees, levies and premiums of any kind;

“county government” means a county government as
provided for under Chapter 11 of the Constitution of
Kenya;

“county government executive” means the county
executive committee member responsible for matters
relating to water;

“cross-county water services provider” means a water

2016

Short title and
commencement.

Interpretation.


aaa ental neta eaten ena meer ar i te erecta eat an a ett ciate a ar a eae ina ean tata naan
a

1027
2016 Water

services provider providing water services to more than
one county;

“easement” means the right to occupy so much of the
land of another as may be necessary for or incidental to the
construction or maintenance of works authorised, or the
exercise of rights conferred by a permit;

“Equalisation Fund” means the Equalisation Fund
provided for in Article 204 of the Constitution;

“Fund” means the Water Sector Trust Fund
established in section 113;

“ground water” means the water of underground
streams, channels, artesian basins, reservoirs, lakes and
other bodies of water in the ground, and includes water in
interstices below the water table;

“inspector” means a person appointed by the Cabinet
Secretary, the Authority, a water basin resources
committee, or the Regulatory Board , to exercise the
powers of an inspector under this Act;

“in-stream habitat” includes the physical structure of a
water resource and the associated vegetation in relation to
the bed of the water course;

“international waters” means the ocean water beyond
territorial waters;

“Land and Environment Court” means the Land and
Environment Court as established under article 162 (2) of
the Constitution;

“landholder”, in relation to land, means the registered
owner of the land or the person in whom the land is
otherwise vested by law, and includes —

(a) any person who by any established right, custom

or estate is entitled to be the holder or possessor
of land;

(b) any person lawfully holding or occupying land in
accordance with the provisions of any law
empowering the allotment of land upon the
promise of title, subject to the fulfilment by the
allottee of prescribed conditions; and

(c) any person to whom a mining lease or mining

location has been granted under the Mining Act,
2016;


No. 43


1028
No. 43 Water

“licence” means a licence in force under this Act;

“licensee” means a water service provider licensed by
the Regulatory Board under this Act;

“limits of supply”, in relation to a water undertaking,
means the limits within which the licensee is for the time
being authorised to supply water;

“Management Board” means the Board of the
Authority established under section 14;

“management of water resources’”’ means the
development, augmentation, conservation or protection of a
water resource:

“peri-urban water services” means services provided
in peri-urban areas as shall be defined by the Regulatory
Board from time to time;

“permit” means a permit for the time being in force
under this Act;

“person” includes a company, association or other
body of persons whether incorporated or unincorporated:

“pollution”, in relation to a water resource, means any
direct or indirect alteration of the physical, thermal,

chemical or biological properties of the water resource so
as to make it—

(a) less fit for any beneficial purpose for which it is or
is reasonably be expected to be used; or

(b) harmful or potentially harmful to—
(i) the welfare, health or safety of human beings;
(ii) any aquatic or non-aquatic life or property; or
(iit) =the environment;

“public consultation”, in relation to any application
made, or action proposed to be taken under this Act, has
the meaning assigned to it in section 139;

“reasonable water use” means the use of water
without wastage;

“Regulatory Board” means the Water Services
Regulatory Board established under section 70;

“reserve”, in relation to a water resource, means that
quantity and quality of water required —

(a) to satisfy basic human needs for all people who

2016

No 12 of 2016


Se

1029
2016 Water

are or may be supplied from the water resource:
and

(b) to protect aquatic ecosystems in order to secure
ecologically sustainable development and use of
the water resource;

“resource quality”, in relation to a water resource,
means the quality of all the aspects of a water resource
including —

(a) the water quality stipulated for the reserve;

(b) the quantity, pattern, timing, water level and
assurance of in-stream flow;

(c) the physical, chemical and __ biological
characteristics of the water;

(d) the character and condition of the in-stream and
riparian habitat; and

(e) the characteristics, condition and distribution of
the aquatic biota;

“resource quality objectives”, in relation to a water
resource, means the level to be achieved and maintained in
each aspect of resource quality for the water resource;

“riparian habitat” means the dynamic complex of
plant, animal and micro-organism communities and their
non-living environment adjacent to and associated with a
watercourse;

“rural water services” means services provided in
rural areas as shall be defined by the Regulatory Board;

“Salaries and Remuneration Commission” means the
Salaries and Remuneration Commission established under
Article 230 of the Constitution;

“sanitation” means the provision of on-site sanitation
services including latrines, septic tanks and conservancies
including the associated exhauster services;

“sector wide approach” means _ coordinated
development in the sector to achieve national goals,
effectiveness of funds and ownership of government
institutions including sector wide planning and
coordination, national monitoring and information and
national implementation concepts;

“sewerage services” means the development and
management of infrastructure for transport, storage,

No. 43


1030
No. 43 Water

treatment waste water originating from centralized and
decentralized systems but shall not include household
sanitation facilities;

“spring” means water emerging from beneath the

surface of the ground other than as a result of drilling or
excavation operations;

“state organ” has the meaning assigned in Article 260
of the Constitution;

“stream” means the water contained in a watercourse,
and includes a river:

“supply of water in bulk” means a supply of water to
a licensee for distribution by or on behalf of the licensee
taking the supply:

“swamp” means any shallow depression in which
water collects either intermittently or permanently and
where there is a small depth of surface water or a shallow
depth of ground water and a slight range of fluctuation
either in the surface level of the water or of the ground
water level so as to permit the growth of aquatic
vegetation:

“transboundary waters” means water resources shared
between Kenya and another State;

“urban water services” means services provided in

urban areas as shall be defined by the Regulatory Board
from time to time:

“use of water’, in relation to a water resource
includes, without any limitation to—

(a) abstraction, obstruction, impoundment or
diversion of water forming part of a water
resource;

(b) the discharge of materials or substances into a
water resource; or

(c) any activity of a kind prescribed by Regulations
under this Act, in relation to a water resource;

“watercourse” means any natural channel or
depression in which water flows regularly or intermittently,
unless declared not to be a watercourse under this Act;

“water resource” means any lake, pond, swamp,
marsh, stream, watercourse, estuary, aquifer, artesian basin
or other body of flowing or standing water, whether above

2016


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or below the ground, and includes sea water and
transboundary waters within the territorial jurisdiction of
Kenya;

“water right” means the right to have access to water
through a water permit;

“water resource management” means the
conservation, including soil and water conservation,
protection, development and utilization of water resources;
and

“water services” means any services of or incidental
to the supply or storage of water and includes the provision
of sewerage services;

“water services provider” means a company, public
benefits organization or other person providing water
services under and in accordance with a licence issued by
the Regulatory Board for the service areas defined by the
licence;

“water storage” means a location or structure where
water is stored for future use;

“Water Storage Authority” means the National Water
Harvesting and Storage Authority established in section 30;

“Water Storage Board” means the Board of the
National Water Harvesting and Storage Authority
established under section 31;

“Water Strategy” means the Integrated National
Water Services Strategy formulated by the Cabinet
Secretary in section 64;

“water table” means—

(a) impervious granular or detrital material, the upper
surface of the body of free water which fills all

openings in material that is sufficiently pervious to
permit percolation; and

(b) in fractured impervious rocks and in solution
openings, the surface at the contact between the

water body in the openings and the overlying
ground air;

“water user” means a person using water from a
water resource;

“water works development agencies’ means _ the
agencies of the national government established under

No. 43


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section 65:

“works” means any structure, apparatus, contrivance,
device or thing for storing, recharging. treating. carrying,
conducting, providing or utilizing water or liquid waste,
but does not include hand utensils or such other
contrivances as may be prescribed by Regulations made
under this Act.

3. The purpose of this Act is to provide for the
regulation, management and development of water
resources and water and sewerage services in line with the
Constitution.

4. The Cabinet Secretary, the Authority, the
Regulatory Board, county governments and any person
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.

PART IIT—OWNERSHIP, USE AND MANAGEMENT
OF WATER RESOURCES

5. Every water resource is vested in and held by the
national government in trust for the people of Kenya.

6. The Authority established in section 11 shall

serve as an agent of the national government and regulate
the management and use of water resources

7. Upon the commencement of this Act, no
conveyance, lease or other instrument shall convey, assure,
demise, transfer or vest in any person any property, right,
interest or privilege in respect of any water resource except
as may be prescribed under this Act.

8. (1) A national public water works means a water
works which has been designated by the Cabinet Secretary,
by notice published in the Gazette, as a national public
water works based on the fact that—

(a) the water resource on which it depends is of a
cross county in nature;

(b) it is financed out of the national government’s
share of national revenue pursuant to the

provisions of the Public Finance Management Act,
2012;

(c) it is intended to serve a function of the national
government; or


2016

Purpose of the
Act.

Principles

Ownership of
water resources

Regulation of the
management and
use of water
resources

Rights to water
resources

National Public
Water Works.

No 18 of 2012

—


1033
2016 Water

(d) it is intended to serve a function which, by
agreement between the national and county
government, has been transferred to the national
government.

(2) National public water works include—
(a) water storage;

(b) water works for bulk distribution and provision of
water services;

(c) inter-basin water transfer facilities; and

(d) reservoirs for impounding surface run-off and for
regulating stream flows to synchronize them with
water demand patterns which are of strategic or
national importance.

(3) A national public water works for domestic use
shall, subject to the acquisition of a permit from the
Authority in case of inter basin water transfer, take
precedence over all other water works for the use of water
or the drainage of land.

(4) Subject to the Land Act, 2012, land required for
national public water works may be acquired in any
manner provided by law for the acquisition of land for
public purposes.

(5) The Cabinet Secretary may, after reasonable notice
to any landholder concerned, cause to be constructed and
maintained upon any land such works as the Cabinet
Secretary may consider necessary for the purposes of any
national public water works.

(6) Compensation on just terms shall be payable by
the Government to the owner of the land on which any
such works are constructed, but in assessing the amount of

compensation payable, the Cabinet Secretary shall take into
consideration any benefit accruing to the land by the
construction of the works and any adverse effect on the
land caused by the works, as the case may be.

(7) The Cabinet Secretary shall make Regulations for
the better carrying into effect of subsections (5) and (6).

9. Every person has the right to access water
resources, whose administration is the function of the

No. 43

No. 6 of 2012.

Admunistration of
National Water
Resources.


1034
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national government as stipulated in the Fourth Schedule to
the Constitution.

10. (1) The Cabinet Secretary shall, within one year of atonal Water
the commencement of this Act and every five years Stratesy
thereafter, following public participation, formulate a

National Water Resource Strategy.

(2) The object of the National Water Resource
Strategy shall be to provide the Government’s plans and

programs for the protection, conservation, control and
management of water resources.

(3) The National Water Resource Strategy shall
contain, among other things, details of —

(a) existing water resources and their defined riparian
areas;

(a) measures for the protection, conservation, control
and management of water resources and approved
land use for the riparian area;

(b) minimum water reserve levels at national and
county levels;

(c) institutional capacity for water research and
technological development;

(d) functional responsibility for national and county
governments in relation to water resources
management; and

(e) any other matters the Cabinet Secretary considers
necessary.

(4) The Cabinet Secretary shall—

(a) prepare and issue an annual report on the state of
national water resource strategies in Kenya; and

(b) may direct any lead agency to prepare and submit
to it a report on the state of national water
resources under the administration of that lead
agency.

(5) The Cabinet Secretary shall review the National

Water Resource Strategy every three years.

PART INI—REGULATION OF THE MANAGEMENT
AND USE OF WATER RESOURCES

Water Resources Authority

11.(1) There is established the Water Resources Establishment of
Authority. the Authority.


1035
2016 Water

(2) The Authority is a body corporate with perpetual
succession and a common seal and shall in its corporate
name be capable of —

(a) suing and being sued;

(b) taking, purchasing or otherwise acquiring,
holding, charging and disposing of movable and
immovable property; and

(c) doing or performing all such other things or acts
for the proper discharge of its functions under this
Act and any other written law as may be lawfully
done or performed by a body corporate.

12. The functions of the Authority are to—

(a) formulate and enforce standards, procedures and
Regulations for the management and use of water
resources and flood mitigation;

(b) regulate the management and use of water
resources;

(c) enforce Regulations made under this Act;

(d) receive water permit applications for water
abstraction, water use and recharge and determine,
issue, vary water permits; and enforce the
conditions of those permits;

(e) collect water permit fees and water use charges;
(f) determine and set permit and water use fees;

(g) provide information and advice to the Cabinet
Secretary for formulation of policy on national
water resource management, water storage and
flood control strategies;

(h) coordinate with other regional, national and
international bodies for the better regulation of the
management and use of water resources; and

(1) advise the Cabinet Secretary generally on the
management and use of water resources.

13. (1) The Authority shall have all the powers
necessary for the execution of its functions under this Act.

(2) Without prejudice to the generality of subsection
(1), the Authority shall have the power to—

No. 43

Functions of the
Authonity.

Powers of the
Authority.


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(a) source and receive funding for the activities of the
Authority:

(b) collect, analyze and disseminate information on
water resources;

(c) monitor compliance by water users with the

conditions of permits and the requirements of the
Act;

(d) issue permits for inter-basin water transfer; and

(e) delegate regulatory functions to the basin water

resource committees provided for under section
25.

14. (1) The powers and functions of the Authority
shall be exercised and performed under the direction of a
Management Board, which consists of —

(a) a chairperson, who shall be appointed by the
President; and

(b) the Principal Secretary responsible for matters
relating to finance or his representative;

(c) the Principal Secretary responsible for matters
relating to water or his representative;

(d) the Principal Secretary responsible for matters
relating to the environment or his representative;

(e) the Principal Secretary responsible for matters
relating to land or his representative;

(f) four other members, who shall be appointed by the
Cabinet Secretary; and

(c) the Chief Executive Officer.

(2) The Chief Executive Officer shall be an ex officio
member of the Management Board with no voting rights.

(3) The chairperson and members of the Management
Board shall hold relevant professional qualifications and
experience and shall be appointed following an open and
competitive recruitment process.

(4) The First Schedule has effect with respect to the
membership and procedure of the Management Board.

15. The Management Board shall be responsible for
overseeing the operations of the Authority with the goal
of—

2016

Management
Board.

General duties and
responsibilities of
the Management
Board.


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(a) securing continuing improvements of
performance;

(b) protecting the long term viability of the Authority;
and

(c) ensuring fiscal discipline of the Authority.

16. (1) The Management Board shall have all powers
necessary for the proper performance of the functions of the
Authority under this Act.

(2) Without prejudice to the generality of the foregoing,
the Management Board shall have power to—

(a) administer the assets of the Authority in such
manner as best promotes the purpose for which the
Authority is established;

(b) ensure protection, where necessary, of the assets
and developments of the Authority;

(c) determine the provisions to be made for capital
and recurrent expenditure and for the reserves of
the Authority;

(d) receive any grants, gifts, donations or endowments
and make legitimate disbursements there from;

(e) invest any funds of the Authority not immediately
required for its purposes;

(f) delegate any of its powers; and

(g) undertake any activity necessary for the
fulfillment of any of the functions of the
Authority.

17. (1) The Cabinet Secretary shall, on the
recommendation of the Management Board, appoint a
Chief Executive Officer of the Authority on such terms and
conditions as may be specified in the instrument of
appointment.

(2) A person is qualified for appointment as Chief
Executive Officer if that person—

(a) is a citizen of Kenya;
(b) holds a degree from a university recognized in
Kenya;

(c) has at least ten years relevant work experience
with at least five years in a senior management
position either in a public service or private sector
organization; and

No. 43

Powers of the
Management

Board.

Chief
Officer.

Executive


1038
No. 43 Water

(d) meets the requirements of leadership and integrity
set out in Chapter Six of the Constitution.

(3) The Chief Executive Officer is the accounting
officer of the Authority.

(4) The Chief Executive Officer is subject to the
direction of the Management Board and is responsible to it

for the —

(a) implementation of the decisions of the
Management Board;

(b) day to day management of the affairs of the
Management Board;

(c) organization and management of the employees;
and

(d) any other function that may be assigned by the
Management Board.

(5) The Chief Executive Officer shall hold office for a

term of five years and is eligible for re-appointment for one
further term upon exemplary performance.

18. The Chief Executive Officer may be removed
from office by the Cabinet Secretary on _ the
recommendation of the Management Board, in accordance
with the terms and conditions of service.

19. (1) The Authority may appoint such other
employees as it may consider necessary for the
performance of its functions under this Act.

(2) The terms and conditions of service of the
employees of the Authority shall be determined by the
Cabinet Secretary responsible for public service on the
advice of the Salaries and Remuneration Commission.

20. (1) The Authority shall prescribe the criteria for
classifying water resources for the purpose of determining
water resources quality objectives for each class of water
resource.

(2) The prescribed classification criteria shall take into
account —

(a) trans-boundary considerations;
(b) strategic functions served by the water resource:

2016

Removal of the

Chief Executive
Officer.

Employees of the
Authority

Classification of
water resources
and determination
of quality
objectives.

endian ak enc


1039

2016 Water

(c) the use or potential for use of the water resource
for inter-basin transfers;

(d) ecological functions of the water resource; and

(e) vulnerability to degradation or depletion and other
related factors.

(3) The Authority shall, by notice in the Gazette —

(a) classify each water resource in accordance with
the prescribed classification criteria;

(b) specify the resource quality objectives for a water
resource of the class to which it belongs; and

(c) specify the requirements for achieving the
objectives, and the dates from which the
objectives will apply.

(4) All State organs shall when exercising any
statutory power or performing any statutory duty, take into
account and give effect to the resource quality objectives
determined under this section in respect of a water
resource.

21. (1) The Authority shall ensure that there is in
place a national monitoring and geo referenced information
system on water resources.

(2) The Authority may require any person, within a
reasonable time or on a regular basis, to provide it with
specified information, documents, samples or materials in
relation to the system referred to in subsection (1).

(3) Subject to Article 35 of the Constitution, a

member of the public on payment of the prescribed fee
shall —

(a) have access to any specific information contained
in any national information system; and

(b) be supplied with a copy of any document
contained in the information system which is
accessible to the public.

22. (1) Where the Authority is satisfied that in order
to conserve a vulnerable water resource, special measures
are necessary for the protection of a catchment area or a
part thereof, it may by Order published in the Gazette
declare such catchment area to be a protected area.

(2) The Authority may impose such requirements or
regulate or prohibit such conduct or activities, in or in

No. 43

National
Monitoring and
Information
System.

Protection of
catchment areas


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No. 43 Water

relation to the protected catchment area as the Authority
may consider necessary for the protection of the area and
its water resources.

23. (1) Where the Authority is satisfied that, in any
area, special measures for the conservation of ground water
are necessary in the public interest for—

(a) the protection of public water or water supplies
used for industry, agriculture or other private
purposes;

(b) the conservation of the water resources of the
aquifer of the ground water resources; or

(c) ecological reasons, it may by Order published in
the Gazette, declare the area to be a ground water
conservation area.

(2) The Authority may impose such requirements or
prohibit such conduct or activities in relation to a
groundwater conservation area as it may _ consider
necessary for the conservation of the ground water.

(3) The Cabinet Secretary may make Regulations for
the better carrying into effect of this section.

Basin Areas

24. (1) The Authority shall in consultation with the
Cabinet Secretary by notice published in the Gazette,
designate a defined area from which rain water flows into a
watercourse to be a basin area for the purposes of this Act.

(2) The Authority may designate a basin area lying
wholly or partly within another basin area as a sub-basin.

25.(1) The Cabinet Secretary shall by notice
published in the Gazette establish a basin water resources
committee for each respective basin area provided for
under section 24.

(2) The Cabinet Secretary shall assign a name to each
basin water resources committee established in accordance
with subsection (1).

(3) A basin water resources committee shall be
responsible for the management of the water resources
within a respective basin area.

(4) A basin water resources committee shall operate
under the Regulations made by the Authority.

2016

Conservation of
ground water

Basin areas

Establishment of a
basin water
resources
committee.

a


1041
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26. (1) A basin water resources committee shall
consist of —

(a) not less than four and not more than seven
members appointed by the Authority in
consultation with the Cabinet Secretary; and

(b) a representative of each county government whose
area falls within the basin appointed by the
appointing authority after approval by the county
assembly.

(2) The Cabinet Secretary shall, by notice in the
Gazette, appoint the chairperson from amongst the
members appointed under subsection (1) (a), who shall
hold office for a period of three years.

(3) The persons appointed under subsection (1)(a)
must be residents of the respective basin area and shall
include —

(a) a representative of a ministry responsible for
matters relating to water resources;

(b) a representative of farmers or pastoralists within
the basin area concerned;

(c) a representative of a public benefits organisation
engaged in water resources management
programmes within the basin area concerned; and

(d) a representative of the business community
operating within the basin area concerned.

(4) In appointing the members in subsection (1), the
Authority shall ensure that at least three members have
technical expertise in matters relating to water.

(5) Paragraphs 2, 3, 5, 6, 7, 9, 11, 12 and !3 of the
First Schedule shall apply in relation to the members and
procedure of the basin water resources committee.

(6) The Authority shall facilitate the activity of the
basin water resources committee by making available
secretariat services, logistical and administrative support.

(7) The salaries, allowances and other expenses of the
committee referred to in subsection (1) shall be determined
by the Cabinet Secretary responsible for public service on
the advice of the Salaries and Remuneration Commission.

No. 43

Basin water
resources
committee.


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No. 43 Water

27. The powers and functions of the basin water
resources committee shall be to advise the Authority and
county governments, at the respective regional office,
concerning —

(a) conservation, use and apportionment of water
resources;

(b) the grant, adjustment, cancellation or variation of
any permit;

(c) protection of water resources and increasing the
availability of water;

(d) annual reporting to the users of its services and the
public on water issues and their performance
within the basin area;

(e) collection of data, analyzing and managing the
information system on water resources;

(f) review of the basin area water resources
management strategy;

(g) facilitation of the establishment and operations of
water resource user associations;

(h) flood mitigation activities;

(i) information sharing between the basin area and the
Authority;

(j) the equitable water sharing within the basin area
through water allocation plans; and

(k) any other matter related to the proper management
of water resources.

28. (1) Upon the designation of a basin area, the
Authority shall prescribe requirements and a time frame for
the formulation of a basin area water resources
management strategy.

(2) The basin area water resources management
strategy shall be formulated by a basin water resources
committee in consultation with the Authority and the

county governments whose areas of jurisdiction lie within
the basin area.

(3) A basin area water resources management strategy
shall —
(a) be consistent with the national water resources
policy;

2016

Functions of the
basin water
resources
committees

Basin area water
resources
management
Strategy

le


1043
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(b) put in place measures to fulfil the water resource
quality objectives for each class of water resource
in the basin area;

(c) describe the measures to be put in place for the
sustainable management of water resources of the
basin area;

(d) contain a water allocation plan for the water
resources of the basin area;

(e) provide systems and guidelines to enable the users
of water resources within the basin area to
participate in managing the water resources of the
basin area; and

(f) provide a strategy for financing the management
of the water resources of the basin area.

(4) The Cabinet Secretary shall publish the strategy
referred to in subsection (1) in the Gazette.

29. (1)Water resource users associations may be
established as associations of water resource users at the
sub-basin level in accordance with Regulations prescribed
by the Authority.

(2) A water resource users association shall be a

community based association for collaborative
management of water resources and resolution of conflicts
concerning the use of water resources.

(3) Without prejudice to the generality of section 28
(3) (e), the basin area water resources management strategy
shall facilitate the establishment and operation of water
resources users associations.

(4) The basin water resources committees may
contract water resource users associations as agents to
perform certain duties in water resource management.

National Water Harvesting and Storage Authority

30. (1) There is established the National Water
Harvesting and Storage Authority.

(2) The Water Storage Authority established under
this section shall be a body corporate with perpetual
succession and a common seal, capable of suing and being
sued in its own name and doing all things that a corporation
may lawfully do.

No. 43

Establishment and
functions of water
resource users
associations.

Establishment of
the National
Water Harvesting
and Storage
Authority.


1044
No. 43 Water

31. (1) The powers and functions of the Water
Storage Authority shall be exercised and performed under
the direction of a Water Harvesting and Storage Board
which shall consist of —

(a) a chairperson, who shall be appointed by the
President;

(b) the Principal Secretary responsible for matters
relating to water;

(c) the Principal Secretary responsible for matters
relating to land;

(d) the Principal Secretary responsible for finance;

(e) five other members, who shall be appointed by the
Cabinet Secretary; and

(f) a Chief Executive Officer.

(2) The Chief Executive Officer is an ex officio
member of the Water Storage Board with no voting rights.

(3) The First Schedule shall have effect with respect to
the membership and procedure of the Water Storage Board.

32.(1) The functions and powers of the Water
Storage Authority shall be to—

(a) undertake on behalf of the national government,
the development of national public water works
for water resources storage and flood control;

(b) maintain and manage national public water works
infrastructure for water resources storage:

(c) collect and provide information for the
formulation by the Cabinet Secretary of the
national water resources storage and flood control
strategies;

(d) develop a water harvesting policy and enforce
water harvesting strategies;

(e) undertake on behalf of the national government
strategic water emergency interventions during
drought; and

(f) advise the Cabinet Secretary on any matter
concerning national public water works for water
storage and flood control.

(2) The Water Storage Authority may appoint agents
for the operation, management, maintenance and safety of
any storage infrastructure that it has developed.

2016

Water Harvesting

and Storage
Board

Powers and
functions of the

Water Storage
Authonity.


1045

2016 Water

(3) The Water Storage Authority shall have such
other powers and functions as may be conferred or imposed
on it by this or any other Act.

33. (1) The Cabinet Secretary, on the recommendation
of the Water Storage Board may appoint the Chief
Executive Officer of the Water Storage Authority, on such
terms and conditions as the Cabinet Secretary for public
service may determine on the advice of the Salaries and
Remuneration Commission.

(2) A person is qualified for appointment as Chief
Executive Officer if that person—

(a) is a citizen of Kenya;
(b) holds a degree from a university recognized in
Kenya;

(c) has at least ten years’ experience, five of which
should be in a senior management position in a
public or private organisation; and

(d) meets the requirements of leadership and integrity
set out in Chapter Six of the Constitution.

(3) The Chief Executive Officer shall be the
accounting officer of the Water Storage Authority.

(4) The Chief Executive Officer is subject to the
direction of the Water Storage Board and is responsible to
it for the —

(a) implementation of the decisions of the Water
Storage Board;

(b) day to day management of the affairs of the Water
Storage Board;

(c) organization and management of the employees;
and

(d) any other function that may be assigned by the
Water Storage Board.

(5) The Chief Executive Officer shall hold office for a
term of five years and is eligible for re-appointment for one
further term.

34. The Chief Executive Officer may be removed
from office by the Cabinet Secretary on _ the
recommendation of the Water Storage Board, in
accordance with the terms and conditions of service.

No. 43

Chief Executive
Officer.

Removal of the
Chief Executive
Officer.


1046
No. 43 Water

35. (1) The Water Storage Authority may appoint such
other employees as it may consider necessary for the
performance of its functions under this Act.

(2) The Cabinet Secretary responsible for matters
relating to public service shall determine the terms and
conditions of service of the employees of the Water
Storage Authority on the advice of the Salaries and
Remuneration Commission.

Regulation of Water Rights and Works

36. A permit is required for any of the following
purposes —

(a) any use of water from a water resource, except as
provided by section 37;

(b) the drainage of any swamp or other land;

(c) the discharge of a pollutant into any water
resource; and

(d) any other purpose, to be carried out in or in
relation to a water resource, which is prescribed by
Regulations made under this Act to be a purpose
for which a permit is required.

37. (1) A permit is not required —

(a) for the abstraction or use of water, without the
employment of works, from any water resource
for domestic purposes by any person having
lawful access to the water resource;

(b) for the abstraction of water in a spring which is
situated wholly within the boundaries of the land
owned by any one landholder and does not
naturally discharge into a watercourse abutting on
or extending beyond the boundaries of that land;
or

(c) for the storage of water in, or the abstraction of
water from a reservoir constructed for the purpose
of such storage and which does not constitute a
water course for the purposes of this Act.

(2) Subsection (1) does not apply in relation to any
activity mentioned in that subsection which is carried on in
prescribed circumstances and the relevant law or regulation
made under this Act requires a permit for the carrying on of
that activity in those circumstances.

2016

Employees of the
Water Storage
Authority.

Water permit

Exemptions.


1047
2016 Water

(3) Regulations made under this Act may make
provisions with respect to the use of water from a water
resource in any manner for which a permit is not required.

(4) Without prejudice to the generality of subsection
(3), such Regulations may —

(a) prohibit any such use of water in prescribed
circumstances; or

(b) require the consent or permission of the Authority
for any such water use of a prescribed kind or
description.

38. (1) A person who—

(a) without a permit, constructs or employs works for
a purpose for which a permit is required; or

(b) being the holder of a permit, constructs or employs
any such works in contravention of the conditions
of the permit, commits an offence.

(2) The holder of a permit authorising the construction
of works who, without the permission of the Authority
takes water from any water resource —

(a) by means of any works not authorised by the
permit; or

(b) before the whole of the works authorised by the
permit have been certified, in accordance with the
conditions of the permit, commits an offence.

39. (1) The holder of a permit which authorises the
construction of works that would or a portion of works
which would when constructed, be situated upon land not
held by the permit holder shall, subject to any relevant law,
acquire an easement on, over or through the land on which
the works would be situated and, unless the works have
previously been lawfully constructed, shall not construct or
use the works unless he or she has acquired such an
easement.

(2) The provisions of the Third Schedule shall apply
in respect of the acquisition of, and subsequent rights
pertaining to or against, any such easement.

40. (1) An application for a permit shall be made to
the Authority at the applicable basin area.

No. 43

Unauthorized
construction and
use of works

Easement for
works.

Procedure for
obtaining a
permit.


1048
No. 43 Water

(2) An application under subsection (1) shall be made
by completing and lodging the form prescribed by the
Authority, together with—

(a) such information in support of the application as
the Authority may require; and

(b) the prescribed fee.

(3) The application shall be determined within six
months of receiving an application which meets the
requirements of the Authority.

(4) An application for a permit shall be the subject of
public consultation and, where applicable, of
environmental impact assessment in accordance with the
requirements of the Environmental Management and Co-
ordination Act, 1999.

(5) Any person opposed to the grant of a permit may
object in writing to the Water Tribunal within a period of
thirty days after publication of the notice of the application.

(6) The Authority must within thirty days notify the
applicant and any person who may have objected to the

grant of the application of its decision and in the event of a
rejection, the reasons for the rejection.

(7) Where an application made in accordance with
this section is not determined by the Authority in
accordance with subsection (3), any fee paid by the
applicant under subsection (2)(b) shall be refunded to the
applicant.

41. (1) A permit shall subject to subsection (2), be
subject to—

(a) conditions that may be prescribed by Regulations
under this Act; and

(b) such other conditions, not inconsistent with the
conditions so prescribed, that the Authority may
impose by endorsement on, or by an instrument in
writing annexed to the permit.

(2) The provisions of the Second Schedule shall be
conditions on every permit which authorises the
construction of works.

(3) The Regulations under subsection (1)(a) may,
among other things—

2016

No. 8 of 1999.

Conditions of
permits.


1049
2016 Warer

(a) require the imposition of prescribed conditions in
prescribed circumstances;

(b) require the payment by the permit holder of
prescribed fees in respect of the exercise of rights
under the permit; or

(c) provide that a contravention of any specified
conditions of a permit under this Act, shall
constitute an offence and provide for
corresponding penalties.

(4) The imposition of a penalty under this Act shall
not prevent any person who has suffered loss, damage or
injury by reason of the contravention of this Act from
pursuing any other remedy for the recovery of damages.

42. (1) The conditions on a permit may require that
on the issue of the permit and at prescribed intervals
thereafter, the permit holder shall pay charges to the
Authority for the use of water in accordance with the terms
of the permit and the Regulations prescribed by the
Authority.

(2) The charges shall be determined by reference to a
schedule of charges published in the Gazette by the
Authority following public consultation.

(3) Where there is an agreement between the
Authority and a water resources users’ association, the
Authority may make available a portion of the water use
charges to be used for financing such regulatory activities
as the water resources users association has agreed to
undertake on behalf of the Authority.

43. (1) In issuing a permit, and in fixing any
conditions to be imposed on a permit, the Authority shall
take into account such factors as it considers relevant,
including —

(a) existing lawful uses of the water;

(b) efficient and beneficial use of water in the public
interest;

(c) any basin area water resources management
strategy applicable to the relevant water resource;

(d) the likely effect of the proposed water use on the
water resource and on other water users;

No. 43

Charges for water
use

Considerations for
the issuance of
permits.


1050
No. 43 Water

(e) the classification and the resource quality
objectives of the water resource;

(f) the investments already made and to be made by
the water user in respect of the water use in
question;

(f) the strategic importance of the proposed water use,

(g) the quality of water in the water resource which
may be required for the reserve; and

(h) the probable duration of the activity or
undertaking for which a water use is to be
authorised.

(2) The use of water for domestic purposes shall take
precedence over the use of water for any other purpose, and
the Authority may, in granting any permit, reserve such
part of the quantity of water in a water resource as in its
opinion is required for domestic purposes.

(3) The nature and degree of water use authorized by
a permit shall be reasonable and beneficial in relation to
other persons who use the same sources of supply or bodies
of water.

(4) A permit shall, subject to this Act, remain in force
for the period specified in it, and may, to the extent that the
permit so provides, be renewed from time to time.

44. (1) The Cabinet Secretary in consultation with the
Authority may from time to time, by notice in the Gazette,
make Regulations for determining — exceptional
circumstances to warrant a grant of a permit.

(2) The Authority upon the advice of the basin water
resources committee may, if in the opinion of the Authority
exceptional circumstances as provided for in subsection
(1), warrant such action, grant a permit authorising with or
without conditions, the use of water from a water resource
and the construction of the works required without
subjecting the application to public consultation.

(3) In considering whether or not to grant a permit in
accordance with this section, the Authority, shall have
regard to the extent to which the grant shall interfere with
the domestic requirements of other users.

(4) A permit granted in accordance with this section
shall not in any case be in force for a period exceeding or

2016

Issue of permits in
exceptional cases.


2016


1051

Water

for periods which in the aggregate exceed, one year, or for
the construction of permanent works.

45.

(1) A permit shall specify, as far as practicable,

the particular portion of any land, or the particular
undertaking to which the permit is to be appurtenant, and
on its grant the permit shall, subject to the provisions of
this section, during the period for which it remains in

force—

(a)

(b)

be appurtenant to that portion of land or that
undertaking; and

pass with any demise, devise, alienation, transfer
or other disposition whether by operation of law or
otherwise.

(2) Where, in the opinion of the Authority —

(a)

(b)

(3)

owing to a change in circumstances not under the
contro! of the permit holder after the grant of the
permit, the applicable water cannot, in such
circumstances, be reasonably beneficially used by
the permit holder on the particular portion of land
to which the permit is appurtenant; and

neither the public interest nor the rights of others
would be adversely affected by a transfer in
accordance with this subsection, the Authority
may, on application by the permit holder and by
endorsement of the permit or other instrument in
writing, transfer the permit to another portion of
the land owned by the permit holder, after which,
it shall become appurtenant to that portion.

If any land to which a permit is appurtenant has

been, or is about to be, subdivided, the Authority may grant
a new permit subject —

(a)

(b)

46.

to the condition that such easements, if any, as
may be required to be granted within a period of
two years after sub-division of the land or within
such longer period as the Authority may
determine; and

any other conditions, and modifications, that the
Authority may consider necessary.

(1) Whenever it is shown to the satisfaction of the

Authority that, owing to natural changes, increased demand

No. 43

Permit to be
linked to land or
undertaking

Variation of
permit.


1052
No. 43 Water

or other cause, the use of water under a permit, or the
method or point of diversion or other manner in which the
water is so used causes-

(a) inequity;
(b) a deterioration in the quality of water;
(c) a shortage of water for domestic purposes: or

(d) a shortage of water for any other purpose which in
the opinion of the Authority in case of inter-basin
water transfers, should have priority,

the Authority may vary the permit so as to alter the
discharge or quality of water or any other aspect of water
use authorised by the permit, or to alter the method or point
of diversion or other specifications, terms or conditions of
the permit.

(2) A permit shall not be cancelled or varied under
this section unless notice of the proposed cancellation or
variation has been served on the permit holder and the
permit holder has been afforded a reasonable opportunity
to show cause to the Authority why the permit should not
be cancelled or varied.

(3) Subsection (2) does not apply where the variation
is expressed to be made owing to drought or owing to a

crisis of a kind prescribed by Regulations made under this
Act.

47. (1) Where, in the opinion of the Authority, it is
desirable that water use in respect of one or more water
resources, including ground water, within a_ specific
geographic area be rationalized or reviewed so as to—

(a) achieve a sustainable allocation of water from a
water resource which is under stress;

(b) achieve equity in allocations;

(c) promote beneficial use of water in the public
interest;

(d) facilitate efficient management of water resources;
or

(e) protect water resource quality,

the Authority may issue a notice in the Gazette requiring
all water users, including permit holders, to apply or
reapply for permits for one or more types of water use.

2016

Powei 10 require
permit
applications or re-
applications


SSS OO

1053

2016 Water

(2) On receipt of applications or re-applications, the
Authority shall prepare a proposed allocation schedule
specifying how water from the water resource in question
shall be allocated, taking into account the requirements of
the reserve.

(3) The proposed allocation schedule shall be
subjected to public consultation, after which the basin
water resources committee shall prepare a preliminary
allocation schedule and shall, by notice published in the
Gazette advertise the times and places at which a copy of
the schedule may be inspected.

(4) A person dissatisfied with the preliminary
allocation schedule may appeal to the Water Tribunal
within thirty days of the publication under subsection (3).

(5) A preliminary allocation schedule shall become a
final allocation schedule--

(a) if no appeal is lodged as provided for under
subsection (4);

(b) if it has been amended after a successful appeal; or
(c) if every appeal lodged has been dismissed.

(6) The Authority shall publish a notice in the Gazette
stating that the preliminary allocation schedule has become
final and advertise the times and places where a copy of the
schedule may be inspected.

(7) The Authority shall, as soon as reasonably
practicable after an allocation schedule becomes final,
issue permits according to the allocations provided for in it,
and cancel any inconsistent permits.

48. (1) The Authority may in the case of an inter
basin water transfer cancel or vary a permit if such
cancellation or variation is necessary for the
accommodation of additional water users of a water source.

(2) A permit shall not be cancelled or varied under
this section unless notice of the proposed cancellation or
variation has been served on the permit holder and the
permit holder has been afforded reasonable opportunity to
show cause to the Authority why the permit should not be
cancelled or varied.

(3) A permit holder whose permit is cancelled under
this section shall be paid compensation of an amount

No. 43

Cancellation of a
permit.


1054
No. 43 Water

agreed between the permit holder, the additional water user
or users and the Authority in the case of inter basin water
transfer, and any disputes arising from such compensation
shall be determined by the Water Tribunal.

49. (1) A permit may be cancelled or varied by the
Authority if the permit holder—

(a) contravenes any condition of the permit, or

(b) fails to make beneficial use of the water or any
part of the water as determined by the Authority.

(2) A permit shall not be cancelled or varied under
this section unless notice of the proposed cancellation or
variation has been served on the permit holder and the
permit holder has been afforded a reasonable opportunity
to show cause to the Authority as to why the permit should
not be cancelled or varied.

50. Every permit shall be subject to subsequent
variation by the Authority after a hydrographical survey of
the relevant body of water has been made, and after
reasonable notice has been given to all parties affected.

51. (1) A permit holder may request the Authority to
vary a permit issued under this Act and the Authority may
if satisfied that the variation is not contrary to the public
interest or the rights of others, vary such permit in order
to—

(a) change the point of diversion or abstraction of the
water used under the permit;

(b) change the use of water authorised by the permit;
or

(c) permit the apportionment of the water authorised
by the permit to be taken or used, to be
apportioned between two or more parts of the land
to which the permit pertains;

(d) permit the mixture of waters authorised to be
taken or used, with those authorised to be taken or

used by another permit, whether held by the same
or another permit holder;

(e) remedy any defect where the permit is incomplete
or indefinite in its terms and conditions; or

2016

Cancellation or
variation of a
permit for failure
to observe terms
and conditions

Variation of
permit following a
hydrographical
survey.

Variation of a
permit at the

request of the
permit holder


1055
2016 Water

vary any other term or condition of the permit.
A variation relating to—
the use of water authorised by the permit; or

(b) a term or condition of a prescribed kind, shall not
be made without public consultation.

52. (1) A permit holder who ceases to utilise water in
accordance with the terms of the permit shall by notice to
the Authority abandon the whole of the permit or any part
capable of separation.

(2) Upon abandonment of a permit under subsection
(1), the Authority may direct the permit holder to remove,
within such time as it may specify, all or any works erected
in connection with the permit.

(3) A permit holder who neglects or fails to remove
the works concerned commits an offence, and the
Authority may remove all or, any portion of the works, and
may recover the cost of their removal from the permit
holder as a debt in any court of competent jurisdiction.

53. (1) Where a permit—

(a) is to be cancelled or varied by the Authority
pursuant to this Act;

(b) has been granted erroneously or irregularly; or

(c) has been granted in contravention of the
provisions of any Regulations made under this Act
with respect to the terms and conditions of such a
permit,

the Authority may, by notice served on the permit holder,
require such permit holder to surrender the permit to the
Authority.

(2) A permit holder who fails to comply with the
notice mentioned in subsection (1) commits an offence.

54. (1) The Authority shall establish and maintain a
register of permits and the register shall contain the details
of the permit holders, the respective terms and conditions
of each permit and the results of any monitoring and
enforcement action taken by the Authority in respect to
each permit.

(2) The Authority shall establish and keep a register at
the national level.

No. 43

Abandonment of
permitted
activities

Surrender of
permits

Register of
permits.


1056
No. 43 Water

(3) The public may access the information contained
in the register on payment of the fee prescribed by the
Authority.

55. (1) Any party aggrieved by the decision of the
Authority may appeal to the Water Tribunal, in the
prescribed manner within fourteen days from the date such
decision was made.

(2) The Tribunal shall on appeal either vary, reverse
or confirm the decision of a water basin resources
committee, and its decision shall be communicated to the
parties concerned within fourteen days from the time the
decision is made.

Ground Water

56. The Fourth Schedule has effect with respect to the
abstraction of ground water and respective works.

Entry on Land

57. (1) Subject to the provisions of subsection (4), a
permit holder or any person proposing to apply for a permit
or intending to enter onto the land of another person for the
purposes of conducting a survey related to proposed works,
if his or her proposal is opposed by the other person,
may —

(a) upon submitting in the manner prescribed —

(a) a general description of his or her proposal;

(b) a schedule of lands which may be affected by the
construction and operation or any works to be
undertaken pursuant to the permit;

(c) the names and addresses of the affected
landholders; and

(b) upon payment of the prescribed fee,

obtain from the Authority permission to enter on to the
land concerned and to carry out any survey or other
preliminary investigation in connection with the location of
any such proposed works.

(2) The Authority may prescribe a time limit within
which the investigation shall be completed.

(3) The permit holder or any person authorized by the
permit holder, may seek such assistance as is necessary to
enter onto the respective land.

2016

Appeals

Abstraction of
ground water

Entry by permit
holder

ae


1057
2016 Water

(4) A permit shall not be issued under this section
until the Authority has notified each landholder concerned
that an application to enter his or her land has been made
under this section.

58. An inspector appointed by the Authority may,
without a warrant, enter onto any land and inspect any
water resource located within or accessible from the land
concerned, in order to take such measures as the Authority
may consider necessary for the purpose of —

(a) conserving or regulating the water resource, or
preserving it from pollution or protecting the bed
over which it lies;

(b) removing any obstruction from, or clearing and
deepening the bed; or

(c) preventing the excessive or illegal diversion, waste
or pollution of the water resource or interference
with any such bed.

59. (1) An employee or agent of a licensee authorised
by the licensee for the purpose may, without warrant, enter
on to any land and inspect any source of water supply
which is located within or accessible from the land
concerned, in order to take such measures as the licensee
may direct for the purpose of —

(a) preserving the water from pollution or protecting
the bed over which it lies or flows; or

(b) removing any obstruction from, or for clearing
and deepening the bed; or

(c) preventing the excessive or illegal diversion,
waste or pollution of the water or interference with
any such bed.

(2) An employee or agent of a licensee authorised by
the licensee for the purpose may enter onto any premises
in the area to which the licence is applicable, for the
purpose of —

(a) ascertaining whether there has been a
contravention of any such Regulations;

(b) in the case of any Regulations in respect of tariffs
and the payment of those tariffs, exercising any
right conferred on the licensee to cut off supplies
for non-payment; or

No, 43

Entry by the
Authority

Entry by licensee


1058
No. 43 Water

(c) in the case of any Regulations made for preventing
water degradation —

(1) ascertaining whether or not circumstances exist
which would justify the licensee's imposing a
requirement to execute works or take other
action to prevent degradation; or

(11) exercising any right conferred on the licensee
to execute and maintain works or other
appropriate action.

60. (1) In this Part, “authorised person” means a
person entering onto any land or premises pursuant to a
right or permission conferred under this Act.

(2) An authorised person shall not enter on any land
or premises without first giving a reasonable notice in
verbal or written form to the landholder or other
responsible person in charge of the land or premises, and
any such entry shall be at a reasonable hour.

(3) Notwithstanding the provisions of subsection (2),
an inspector may enter without giving notice if—

(a) he or she has reason to believe that a provision of
this Act or of any rule or order made under this
Act has been or is about to be contravened;

(b) he or she is unable to give notice within a
reasonable time having regard to all the
circumstances; or

(c) he or she has given reasonable grounds for not
giving notice.

(4) If so requested by the owner or occupier of the
land or premises, the authorised person shall produce
evidence of his right or permission, as the case may be, to
enter on to the land.

(5) It shall be the duty of any person when exercising
any powers under this section to do so with reasonable care
and in such a manner as to cause as little damage as
possible on the land or premises referred to in subsection

(1).

61. (1) A permit holder or licensee, or an employee or
agent of a permit holder or licensee shall, on demand by an
inspector —

2016

Manner of entry

Powers of
inspectors.

———


1059
2016 Water

(a) avail to the inspector any information within his
or her knowledge relating to any inquiry held by
the inspector under this Act; and

(b) produce for inspection any licence, map plan,
specification, drawing or other document or record
relating to—

(1) the permit or licence;

(ii) any works constructed under the permit or
licence; or

(iii) the flow of water in any such works or in any
water resource affected by them.

(2) A person who contravenes this section commits
an offence.

62.(1) A person who has committed, or has been
accused of committing an offence under this Act and
who—

(a) refuses, on demand of an inspector, to give his or

her name and place of abode and other particulars
which the inspector may reasonably require; or

(b) in purported compliance with such a demand,
gives a name, place of abode or other particulars
which the inspector has reason to believe to be
false,

may be arrested by the inspector without warrant, and
handed over to the nearest police officer.

(2) When the true identity, place of abode or other
particulars of the person referred to in subsection (1) have
been ascertained, the person concerned shall be released
upon the execution of a bond, if so required, with or
without sureties, so as to appear before a magistrate.

(3) If the person's true name and place of abode and
other particulars are not ascertained within twenty hours
from the time of the arrest, or if he or she fails to execute
the bond or, to furnish the applicable sureties, such person
shall be presented before a magistrate having jurisdiction
in the area.

PART FV— WATER SERVICES
General

63. Every person in Kenya has the right to clean and
safe water in adequate quantities and to reasonable

No. 43

Requirement to
state name and
address.

Right to clean and
safe water.


1060

No. 43 Water

standards of sanitation as stipulated in Article 43 of the
Constitution.

64. (1) The Cabinet Secretary shall, within one year of
the commencement of this Act and every five years
thereafter. following public participation, formulate a
Water Services Strategy.

(2) The object of the Water Strategy shall be to
provide the Government’s plans and programs for the
progressive realization of the right of every person in
Kenya to water.

(3) The Water Strategy shall contain, among other
things, details of —

(a) existing water services;

(b) the number and location of persons who are not

provided with a basic water supply and _ basic
sewerage services:

(c) standards for the progressive realisation of the
right to water; and

(d)a resource mobilization strategy for the
implementation of the plans.

(4) The Water Strategy in force for the time being,
shall be published in the Gazette.

(5) The Cabinet Secretary shall in consultation with
county governments, provide a national water sector
investment and financing plan aggregated from the county
government plans which shall include, among other details,
the time frames for the plans and an investment programme
based on the investment plans.

(6) The Cabinet Secretary shall review the Water
Services Strategy every three years.

Water Works Development Agencies

65. (1) The Cabinet Secretary may, by notice in the
Gazette, establish one or more waterworks development
agencies and define the geographical area of jurisdiction of
each such agency.

(2) The water works development agencies shall be
bodies corporate with perpetual succession and a common
seal and shall have power, in their respective corporate
names, to sue and to be sued and, in the exercise and

2016

National Water
Services Strategy

Establishment of
water works
development
agencies


ER Re ee a anne TT nnn errr nner eer nse eeeceeececeeacncccceaceeceee eee eine ET
.

1061

2016 Wuter

performance of their powers and functions, to do and
permit all such things as may lawfully be done or permitted
by a body corporate.

66. (1) Each water works development agency shall
consist of —

(a) a chairperson, who shall be appointed by the
Cabinet Secretary from a county within the basin
area;

(b) four other members who shall be appointed by the
Cabinet Secretary from counties within the basin
area; and

(c) the Chief Executive Officer.

(2) The First Schedule has effect with respect to the
membership and procedure of the water works
development agencies.

67. The Cabinet Secretary shall in consultation with
stakeholders develop the criteria for establishment of the
water works development agencies.

68. The powers and functions of the water works
development agency shall be to —

(a) undertake the development, maintenance and
management of the national public water works
within its area of jurisdiction;

(b) operate the waterworks and provide water services
as a water service provider, until such a time as
responsibility for the operation and management
of the waterworks are handed over to a county
government, joint committee, authority of county
governments or water services provider within
whose area of jurisdiction or supply the
waterworks is located;

(c) provide reserve capacity for purposes of providing
water services where pursuant to section 103, the
Regulatory Board orders the transfer of water
services functions from a defaulting water services
provider to another licensee;

(d) provide technical services and capacity building to
such county governments and water services
providers within its area as may be requested; and

No. 43

Boards of the
water works
development
agencies

Criteria for water
works

development
agencics

Powers and
functions of the
water works
development
agency


1062
No. 43 Water

(e) provide to the Cabinet Secretary technical support
in the discharge of his or her functions under the
Constitution and this Act.

69.(1) As soon as possible, following — the
commissioning of the waterworks, the waterworks
development agency shall enter into an agreement with the
county government, the joint committee or authority of the
county governments within whose area of jurisdiction the
water works is located, jointly with the water service
provider within whose area of supply the water works are
located for the use by the joint committee, authority or
water services provider, as the case may be, of the water
works to provide water services.

(2) The agreement shall make provision for the
assumption by the county government, the joint committee,
authority or water services provider of the responsibility
for the repayment of any loans or liabilities of the
waterworks and until full repayment of the loans and
discharge of any outstanding liabilities, ownership of the
waterworks shall remain in the waterworks development
agency.

(3) In the event that the county government, the joint
committee, the authority or water services provider defaults
in the repayment of any outstanding loans arising from the
development, rehabilitation or maintenance of the works,
the waterworks development agency may petition the
Regulatory Board to declare a default and order the transfer
of the water services provider’s functions to the
waterworks development agency, to exercise such
functions until full repayment of the loan.

The Water Services Regulatory Board

70.(1) There is established the Water Services
Regulatory Board whose principal object is to protect the
interests and rights of consumers in the provision of water
services.

(2) The Regulatory Board shall be a body corporate
with perpetual succession and a common seal and shall
have power, in its corporate name, to sue and be sued and,
in the exercise and performance of its powers and
functions, to do and permit all such things as may lawfully
be done or permitted by a body corporate.

2016

Handover of
completed works.

Establishment of
the Water
Services
Regulatory Board.

a ete


1063

2016 Water No. 43

71. (1) The powers and functions of the Regulatory Regulatory Board
Board shall be exercised and performed under the direction
of the Regulatory Board, which shall consist of —

(a) a chairperson appointed by the President,

(b) four other members appointed by the Cabinet
Secretary; and

(c) the Chief Executive Officer.

(2) The First Schedule shall have effect with regard to
the membership and procedure of the Regulatory Board.

: Powers and
72. (1) The powers and functions of the Regulatory functions of the

Board shall be to— Regulatory Board.
(a) determine and prescribe national standards for the
provision of water services and asset development
for water services providers;

(b) evaluate and recommend water and sewerage
tariffs to the county water services providers and
approve the imposition of such tariffs in line with
consumer protection standards;

(c) set licence conditions and accredit water services
providers;

(d) monitor and regulate licensees and enforce licence
conditions;

(e) develop a model memorandum and articles of
association to be used by all water companies
applying to be licensed by the Regulatory Board
to operate as water services providers;

(f) monitor compliance with standards including the
design, construction, operation and maintenance of
facilities for the provision of water services by the
water works development bodies and the water

services providers;

(g) advise the Cabinet Secretary on the nature, extent
and conditions of financial support to be accorded
to water services providers for providing water
services;

(h) monitor progress in the implementation of the
Water Strategy and make appropriate
recommendations;


1064
No. 43 Water

(i) Mamtain a national database and information
system on water Services:

(j) establish a mechanism for handling complaints
from consumers regarding the quality or nature of
Water services:

{k) develop guidelines on the establishment of
consumer groups and facilitat. their establishment;

(1) inspect water works and water services to ensure
that such works and services meet the prescribed
standards;

(m) report annually to the public on issues of water
supply and sesverage services and the performance
of relevant sectors and publish the reports in the
Gazette;

(n) make Regulations on water services and asset
development which shall include _ business,
investment and financing plans in order to ensure
efficient and effective water services and
progressive realization of the right to water
services;

(0) advise the Cabinet Secretary on any matter in
connection with water services; and

(p) make recommendations on how to provide basic
water services to marginalised areas.

(2) The Regulatory Board shall have such powers and
functions as may be conferred on it by this or any other
Act, or as may be reasonably incidental to the exercise or
performance of any power or function so conferred.

73. (1) There shall be a Chief Executive Officer of the
Regulatory Board who shall be appointed by the Cabinet
Secretary on the recommendation of the Regulatory Board,
on such terms and conditions of service as may be
prescribed by the Cabinet Secretary responsible for public
service on the advice from the Salaries and Remuneration
Commission.

(2) The Chief Executive Officer shall be the principal
officer of the Regulatory Board and, subject to the
directions of the Regulatory Board shall be responsible for
management of the Regulatory Board.

(3) The Regulatory Board may appoint such officers
and other employees as may be necessary for the exercise

2016

Employees of the
Regulatory Board


1065
2016 Water

and performance of its powers and functions, upon such
terms and conditions as the Cabinet Secretary responsible
for public service may determine upon consideration of
advice from the Salaries and Remuneration Commission.

74.(1) A person shall not be licensed as a water
service provider unless such person makes an application
under this section to the Regulatory Board and submits a
copy of the application to the county government within
whose area of jurisdiction it intends to provide water
services.

(2) Prior to determination of the application, the
Regulatory Board shall publicise the application and shall
take into consideration the views of stakeholders including
the county government, within whose area of jurisdiction
the applicant intends to provide water services.

(3) The Regulatory Board shall issue a licence if the
applicant meets the licensing requirements.

75.(1) The Regulatory Board shall maintain the
register of all licensed water services providers
containing —

(a) their names and addresses;

(b) in the case of a registered association, or public
benefit organization, the nature of the association
or organization and the particulars of its
registration;

(c) the nature of services in respect of which the water
services providers are accredited;

(d) the conditions, if any, attaching to their license;
and

(e) any other matter prescribed in Regulations.

(2) The register of the licensed person shall be a
public document accessible for inspection at no charge and
shall be publicized, placed or posted in accessible formats

at such places as the Regulatory Board shall determine.

(3) The register referred to in this section shall be
published from time to time by the Authority.

(4) The Regulatory Board shall develop and publish
guidelines to regulate the conduct of licensed water
services providers.

No. 43

Licensing.

Register of
licensed water
services providers.


1066
No. 43 Water

76. (1) The Regulatory Board may, revoke the licence
of a water services provider on any of the following
grounds —

(4) if it is shown to the satisfaction of the Regulatory
Board that the licence was obtained by mistake,
fraud, undue influence or misrepresentation; or

(5) the water services provider has for any reason
ceased to meet the criteria for licensing; or

(6) if it is shown to the satisfaction of the Regulatory
Board that the water services provider has refused,
failed or neglected to provide the services for
which they were licensed;

(7) the water services provider becomes insolvent, or
is adjudged bankrupt; or

(8) the water services provider has failed to comply
with any conditions for licensing.

(2) The Regulatory Board shall give written notice of
revocation of a license under subsection (1) to the water
services provider within seven days of the revocation.

(3) A person whose licence is suspended or revoked
shall cease to provide the relevant service.

(4) A water services provider whose licence is
suspended or revoked may apply to the Regulatory Board
to review its decision within fourteen days of receipt of the
notice of revocation.

77.(1) A county government shall establish water
services providers.

(2) In establishing a water services provider, a county
government shall comply with the standards of commercial
viability set out by the Regulatory Board.

(3) A water services provider established under this
section may be a public limited liability company
established under the Companies Act, 2015 or other body
providing water services as may be approved by the
Regulatory Board.

(4) A company intending to be licensed as a water
service provider shall submit to the Regulatory Board its
memorandum and articles of association that conform to

the guidelines developed and approved by the Regulatory
Board.

2016

Revocation of
licence

Establishment of
water service
providers

No. 17 of 2015.


1067
2016 Water

(5) The Regulatory Board shall make Regulations on
the standard of water to be supplied by water service
providers licensed under this section.

78. (1) A water services provider shall be responsible
for-

(a) the provision of water services within the area
specified in the licence; and

(b) the development of county assets for water service
provision.

(2) A licensed water services provider shall have such
other powers and functions as may be conferred on it by
this Act or any other Act.

79. (1) A water services provider shall have a board of
directors and in the case of a company, the members of its
board of directors shall be constituted in accordance with
the Companies Act, 2015 or any other written law and the
directors shall be nominated to serve on the board in
accordance with the company’s memorandum and articles
of association.

(2) All members nominated to the water services
provider’s board of directors shall possess qualifications
which meet the standards set by the Regulatory Board.

80. A member of a board of directors of a water
services provider shall not—

(a) at the time of nomination for appointment to the
board, be serving as an elected member of a
county government;

(b) hold office in a political party; or
(c) be a serving member of Parliament.

81. A water services provider may with the approval
of the relevant licensing authority extend water services to
rural or developing areas.

82. (1) A party aggrieved by the decision of a water
services provider may appeal against the decision to the

Regulatory Board in the prescribed manner within fourteen
days from the date the decision was made.

(2) The Regulatory Board may on appeal either vary,
reverse or confirm the decision of the water service

No. 43

Responsibilities of
the water services
provider.

Board of a water
services provider

No 17 of 2015.

Member of the
Board not to hold
public office.

Extension of
services to rural or
developing areas.

Appeals to the
Regulatory Board.


1068
No. 43 Water

provider, and the Regulatory Board shall communicate its

decision to the parties concerned within fourteen days from
the time the decision is made.

83. A county or a cross-county owned water service
provider established as a public institution and operating
and providing water services shall hold the county or
national public water services assets on behalf of the
public.

84. (1) The Cabinet Secretary shall make Regulations
for the transfer of national public assets to the county water
services providers in accordance with any law regulating
the handing over and disposal of public assets.

(2) The Regulations shall include arrangements to
protect public assets in case of private sector participation
such as the separation of operation from asset holding and
development.

$5.(1) A person shall not provide water services
except under a licence issued by the Regulatory Board,

upon submission of an application and such supporting
documents as the Board may require.

(2) A person who provides water services in
contravention of this section commits an offence.

(3) Nothing in this section prohibits the provision of
water services —

(a) by a person to their employees;

(b) on the premises of an institution including a
hospital, factory, school, hotel, research station or
other comparable institution, in cases where the
source of supply of the water is lawfully under the
control of the institution or where the water is

supplied to such institution in bulk by a licensee;
or

(c) in circumstances which are prescribed by
Regulations made by the Regulatory Board to be
exempt from the requirement of a licence.

86. (1) An application for the licence under section 85
(1) shall be made in the prescribed form to the Regulatory
Board.

(2) In making the application, the applicant shall be
required to submit the following particulars to the
Regulatory Board as the case may be —

2016

County owned
water service
provider to hold
assets for the
public

Cabinet Secretary
to make

Regulations

Provision of water
services

Procedure and
requirements for
obtaining a
licence.


1069
2016 Water

(a) evidence that the applicant’s board of directors
complies with the standards set by the Regulatory
Board under section 79 (2);

(b) the technical and financial capability of the
applicant to provide the services and perform the
functions authorized by the licence;

(c) evidence that the water services to be provided
will be commercially viable;

(d) the applicant's business plans for the provision of
efficient, affordable and sustainable water
Services;

(e) details of planned financial and infrastructural
improvements;

(f) a proposed tariff structure; and

(g) any other information required by the Regulatory
Board.

(3) The application shall be made by completing and
lodging the prescribed form together with the supporting
documentation and the prescribed fee.

(4) The Regulatory Board shall have discretion to
grant or refuse to grant an application for a licence
submitted under subsection (1).

(5) An application shall not be granted unless the
Regulatory Board is satisfied that—

(a) the applicant has the requisite technical and
financial competence to provide the services to
which the licence relates;

(b) the applicant has demonstrated that the water
services to be provided will be commercially
viable;

(c) the applicant has presented a sound plan for the
provision of an_ efficient, affordable and
sustainable water service;

(d) the applicant has proposed _ satisfactory
performance targets and planned improvements
and an acceptable tariff structure;

(e) the applicant or any water services provider by
whom the functions authorized by the licence are

No. 43


1070
No. 43 Water

to be performed, will provide the water services
authorised by the licence on a commercial basis
and in accordance with sound business principles;

(f) where water services authorised by the licence are
to be provided by a water services provider which
conducts some other business or performs other
functions not authorised by the licence, the supply
of those services will be undertaken, managed and
accounted for as a separate business enterprise;
and

(g) the applicant has met any other requirements
which the Regulatory Board may _ consider
necessary for the efficient provision of the services
to be provided under the licence.

87. (1) An application for a licence shall be subject to
public participation.

(2) Any person opposed to the grant of a licence may
object, in writing, to the Regulatory Board.

(3) The Regulatory Board shall make a determination
on an application for a licence within six months after the
applicant lodges the application.

(4) The Regulatory Board shall notify the applicant
and the objector of its decision and, in the event of the
rejection of an application or objection, of the reasons for
the decision.

(5) An applicant or objector may, if aggrieved by the
decision of the Regulatory Board, appeal to the Tribunal

within thirty days of the date of the notification of the
decision.

(6) Where the Regulatory Board does not determine
the application within six months of receipt of the
application, any fee charged by the Regulatory Board under
section 86(3) shall be refunded to the applicant.

88. (1) A licence shall only authorise a water services
provider to provide water services in the area specified in
the licence and shall not confer any rights of proprietorship
and in particular, the licence shall not be capable of being

sold, leased, mortgaged, transferred, attached, assigned,
demised or encumbered.

2016

Application for a
licence subject to
public
consultation.

Licence not to
confer any rights
of proprietorship
to the licensee.


1071

2016 Water

(2) The Regulatory Board may require the applicant
to deposit with it a guarantee or other acceptable security
for the purpose of securing payment by the applicant of any
expenses recoverable from the licensee, for or towards the
costs incurred in discharging the functions of the licensee
in cases of default.

(3) As a condition for the licence, a licensee shall,
within twelve months of receipt of the licence, or such
other longer period as the Regulatory Board may
determine, formulate and present to the Regulatory Board,
a development plan for extending services to persons not
receiving water services within such licensee’s area of
operation, a time frame for the implementation of the plan
and a resource mobilization strategy.

89. (1) A licensee shall pay to the Regulatory Board,
as the case may be, on issue of the licence and at prescribed
intervals thereafter, such licence fees as the Regulatory
Board may determine.

(2) The fee shall be determined by reference to a
schedule of fees published in the Gazette from time to time
by the Regulatory Board.

90. (1) A licence shall be subject to—

(a) conditions prescribed by Regulations made under
this Act; and

(b) such other conditions, not inconsistent with the
conditions prescribed, as the Regulatory Board
may impose in the licence or by endorsement in an
instrument annexed to the licence.

(2) Under this Act, Regulations may —

(a) require the imposition of prescribed conditions in
prescribed circumstances; and

(b) require the licensee to maintain, in the prescribed
manner, a contingency fund for the purpose of
renewal, repair, enlargement or improvement of
any plant, equipment, facilities or works used for
the purposes of the licence or for meeting any
other prescribed contingency.

91. (1) A water services provider shall, as the licensee,
be responsible for the efficient and economical provision of
water services so as to fulfil the rights to water and any
other conditions specified in the licence.

No. 43

Licence fees.

Conditions of
licence. *

Duty to provide
water services


1072
No. 43 Water

(2) For the purpose of the provision of water services,
a water services provider, may —

« (a) purchase, lease or otherwise acquire, premises,
plant, equipment and facilities; and

(b) purchase, lease or otherwise acquire land, or
request for its compulsory acquisition in
accordance with the applicable laws.

92. Every water services provider shall establish a
mechanism for handling consumer complaints which meets
the standards set by the Regulatory Board.

93. (1) A water services provider may enter into a
public private partnership or public partnerships for the
exercise and performance by another person of some or all
of its functions as a licensee with respect to a part or the
whole of its area of water service provision.

(2) The partnership shall be in writing subject to the
approval of the Regulatory Board.

(3) Where the person entering into an agreement with
the water services provider owns or possesses assets or
infrastructure used for the provision of water services, the
agreement shall set out the terms and conditions under
which the assets may continue to be so used.

(4) A power or function conferred by a licence or
otherwise conferred under this Act may be exercised or
performed by another person acting under an agreement
with the licensee and shall be deemed, when exercised or
performed by that other person, to have been exercised or
performed by the licensee.

94. (1) Nothing in this Act shall deprive any person or
community of water services on the grounds only that
provision of such services is not commercially viable.

33. Every county government shall put in place
measures for the provision of water services to rural areas
which are considered not to be commercially viable for the
provision of water services.

(3) The measures referred to in subsection (2) shall
include the development of point sources, small scale piped
systems and stand pipes which meet the standards set by
the Regulatory Board and which may be managed by the

2016

Consumer
complaints.

Public Private
Partnerships.

Special provisions
with respect to
rural areas not
commercially
viable.


1073
2016 Water

community associations, public benefits organizations or a
private person under a contract with the county
government.

(4) In order to implement its obligations under this
section, a county government shall formulate and submit
annually to the Regulatory Board and to the Cabinet
Secretary, a five year development plan incorporating an
investment and financing plan for the provision of water
services in the rural areas referred to subsection (1) within
its area of jurisdiction.

(5) The Cabinet Secretary shall provide technical,
financial and other assistance to a county government to
enable the county government to discharge its
responsibility under this section.

95. (1) The Regulatory Board may, on the application
of a licensee, vary the terms and conditions of the licence.

(2) Except as otherwise provided by Regulations made
under this Act, no such variation shall be made without
prior public consultation.

96. (1) The area of water service provision shall be
prescribed by a licence and shall not be less than the area
required for a commercially viable water service.

(2) The area so prescribed may, but need not,
coincide with the boundaries of the area or areas of
jurisdiction of one or more county governments.

97. (1) The Regulatory Board may, on the application
of the licensees —

(a) permit the joint provision, by two or more
licensees, of water services on such terms as it
may approve; or

(b) permit the transfer of a water service, or a part
thereof, from one licensee to another licensee.

(2) Where it appears necessary to the Regulatory
Board, for the purpose of securing a commercially viable
water service, it may, by notice in the Gazette, order a joint
provision of water services or a transfer of water service
and vary the relevant licenses accordingly.

(3) An order made under this section may make such
incidental, consequential and supplementary provision as

No. 43

Variation of terms
or conditions of a
licence

Areas of water
service.

Clustering of
areas of water
service provision


1074
No. 43 Water

the Regulatory Board considers necessary for the purpose
of carrying out the order.

(4) The Cabinet Secretary in consultation with the
Regulatory Board shall make rules, setting out
circumstances under which the provision of joint water
services may be ordered.

(5) A licensee aggrieved by the provisions of the order
may appeal to the Tribunal.

98. (1) The Regulatory Board may vary the areas of
water service provision prescribed by one or more
licences —

(a) on the application of a licensee whose area of
water service is to be varied and with the consent
of any other licensees affected; or

(b) without the consent, or against the objections of
any such other licensee, if the Regulatory Board
is satisfied that the other licensee is unable to meet
the demands for water in its area of jurisdiction or
is otherwise unable to provide a commercially
viable service.

(2) Where it appears to the Regulatory Board that it is
necessary to vary the area of water service of a licensee and
the Regulatory Board is satisfied that such a variation
cannot be otherwise secured it may, by order published in
the Gazette, effect the variation accordingly.

(3) An order made under this section may make such
incidental, consequential and supplementary provisions as
the Regulatory Board may consider necessary for the
purpose of carrying out the order.

(4) A licensee aggrieved by the provisions of an order
made under this section may appeal to the Tribunal.

99. (1) Subject to any Regulations made under this
Act, the Regulatory Board may direct a licensee to provide
water services, outside its area of water services
jurisdiction.

(2) Where under this section a licensee, in this section
called the “supplying licensee”, is providing water services
to premises outside its area of supply, any other licensee
within whose area of supply those premises are situated
may, in the absence of any agreement to the contrary, give

2016

Variation of areas
of service

Provision of water
service outside the

area of supply.


nner eee n rene een eee eee eect ee een nn ne rece eee eee Se

tient tat teenie eli atin ee

1075

2016 Water

not less than three months’ notice to the supplying licensee
that the licensee is able and intends to provide water
services to the premises.

(3) A notice given under subsection (2) shall not be
valid unless it relates to all the premises to which the water
services are being provided by the supplying licensee in
accordance with this section.

(4) If on the expiration of the notice under subsection
(2) the licensee giving the notice commences to supply
water to the premises covered by the notice, the supplying
licensee shall, except for the purpose of recovering water
rates or other charges or expenses lawfully recoverable by
the supplying licensee, and of removing any pipes, plant or
apparatus belonging to the supplying licensee, cease to
have any rights or duties in respect of providing water
services to the premises concerned.

(5) The supplying licensee shall not remove any
pipes, plant or apparatus which are required by the licensee
giving the notice, and any such pipes, plant or apparatus
shall vest in the licensee giving the notice.

(6) The licensee giving notice shall pay to the
supplying licensee —

(a) any expenses reasonably incurred by the supplying
licensee for the purpose of providing water
services to the premises referred to in the notice;

(b) such sum in respect of any pipes, plant or
apparatus vested in the licensee giving the notice
as may be agreed or, in default of agreement, as
may be determined by the Regulatory Board.

(7) While the supplying licensee is in accordance
with this section authorized to provide water services
outside its area of service, any Regulations relating to its
water service shall have effect as if the area to which those
services were provided were within those limits.

100. (1) A person shall not supply water in bulk to a
water services provider without a licence issued by the
Regulatory Board.

(2) A water service provider may enter into an
agreement with any other licensee or water services
provider on terms and conditions to be approved by the
Regulatory Board—

No. 43

Supply of bulk
water.


1076
No. 43 Water

(b) for the supply of water in bulk for a specific
period; or

(c) where the supply is to be given by a water
services provider, either within or outside the area
of service of that water services provider.

(3) Where it appears to the Regulatory Board that—
(a) it is expedient for —

(i) any licensee or water services provider to give
the supply of water in bulk to another licensee
or water service provider;

(ii) the other licensee or water services provider to
take such supply; and

(b) giving and taking of such a supply cannot be
secured by agreement,

the Regulatory Board may, by order served on the

parties, require the licensees concerned to give and take the
supply of water in bulk for such a period and on such terms
as the Regulatory Board may specify.

101.(1) If it appears to the Regulatory Board
following a complaint made to or information received by a
county government executive or the Regulatory Authority,
that any licensee —

(a) has failed to discharge any duty imposed upon the
licensee by a licence or otherwise under this Act;
or

(b) has failed to give an adequate supply of water,
either in quantity or quality to any area or any
person which it is supplying; or

(c) having been notified by the Regulatory Board, as
the case may be, to take such steps as are
reasonably practicable in order to remedy any such
failure as is mentioned in paragraph (a) or (b), and
has failed to do so,

the Regulatory Board, as the case may be, may inquire into
the matter.

(2) If, after inquiry, the Regulatory Board is satisfied
that there has been failure on the part of the licensee, the
Regulatory Board may impose a special regulatory regime

2016

Default by a

licensee.


1077
2016 Water

on the water services provider for the purpose of
remedying the default.

(3) A licensee declared to be in default and is
dissatisfied with an order of the Regulatory Board under
this section may, within thirty days after receipt of the
order, appeal to the Tribunal.

(4) A licensee declared to be in default by order under
this section and who fails to comply with the order within
the time specified, commits an offence.

102. (1) The Regulatory Board may, in consultation
with the affected county government’s executive, impose
a special regulatory regime on a licensee who persistently
contravenes the conditions of a licence or the requirements

of this Act.

(2) In taking the action contemplated in subsection
(1) the licensee shall be given an opportunity to make
presentations to the Regulatory Board.

(3) The Regulatory Board may under a special
regulatory regime —

(a) require the licensee to be under enhanced
monitoring licence and reporting:

(b) remove privileges from the licence; or

(c) revoke the licence and appoint a special manager
of the water services for a period of not more than
six months or until the respective county
government makes a new appointment whichever
is the earlier.

(4) In determining withdrawal of a licence, the
Regulatory Board shall consider the severity of the offence,
the consequences of withdrawal of a licence and the
sufficiency of any alternative sanction.

103. (1) If the Regulatory Board is satisfied that,
notwithstanding the imposition of measures under a special
regulatory regime, the default has not been remedied and is
not likely to be remedied by the licensee, it shall subject to
the Public Finance Management Act, 2012 in consultation
with the concerned county government executive, by notice
in the Gazette, order the transfer of water services to
another licensee.

No. 43

Special regulatory
regime

Transfer of
functions of
licensee

No 18 of 2012.


1078
No. 43 Water 2016

(2) The order of transfer shall make such provisions
as appear to the Regulatory Board to be desirable or
necessary with respect to any property or assets being used
by the defaulting licensee for the purposes of providing the
water services.

(3) The transfer of a licence shall be a temporary
measure not exceeding twelve months pending remedial
action by a county government executive.

104. (1) A licensee may enter into an agreement with Agreements as to
any person with respect to the execution and maintenance, Pett O er
by any party to the agreement, of such works as the *t.
licensee considers necessary or as the conditions of the
licence may require for the purpose of protecting the
catchment areas, drainage of land, carrying out soil
conservation measures, the control of vegetation or
effectively collecting, conveying or preserving the purity
and quantity of water which the licensee is for the time

being authorised to take.

(2) An agreement under this section may be
registered against any proprietor of the applicable land, and
shall be binding upon and enforceable against such person

or successor in title.

105. (1) A licensee who is of the opinion that there is Power of licensee
a serious deficiency or threat of a deficiency of water recent use of
available for distribution, may with the approval of the — water.
Regulatory Board, for such period as the licensee considers
necessary, prohibit or restrict with respect to the whole or
any part of such licensee’s limits of supply, the use for any

specified purpose of water.

(2) Before the prohibition or restriction in subsection
(1) comes into force, notice shall be given by the licensee,
in One or more newspapers of daily circulation, within the
affected area or by such other means as the Regulatory
Board may approve, of the proposed prohibition or
restriction and of the date when such prohibition or
restriction shall come into force.

(3) Any person who contravenes the provisions of
this section commits an offence.

106.(1) It shall be the duty of every county Duty toenforce

. : Regulations on
government executive to monitor and enforce the water services

applicable Regulations made under this Act, and any


ne eee arene eran anenneenenn nee ee ne nner ence eee reece ance ene een eee ence eee cea nnn een eee nce en eee

1079
2016 Water

county government executive who fails to do so shall be
liable to an order by the Regulatory Board to take such
action to enforce such Regulations as shall be specified in
the order.

(2) Where a county government executive considers
that the operation of any such Regulations would be
unreasonable in any particular case, a county government
may, in consultation with the Regulatory Board, by notice
to any affected party, reduce or dispense with the
requirements of the regulation.

107. (1) A licensee may, on any land belonging to it,
or on land over or in which it has acquired any necessary
easement or right, construct and maintain drains, sewers
and other works for intercepting, treating or disposing of
any foul water arising or flowing upon such land or
otherwise for preventing water belonging to the licensee, or
which it is for the time being authorised to take, from being
polluted.

(2) The licensee shall before constructing any works,
if the proposed works will affect or are likely to affect any
water resource, obtain the consent of the Authority and the
Regulatory Board.

(3) Any licensee proposing to construct any drain,
sewer or other works may, with the consent of the state
organ concerned and subject to such conditions as the state
organ may impose, carry the drain, sewer or other work
under, across or along any road or road reserve or public
place, whether within or outside the area of water service
of the licensee.

(4) A consent required under subsection (2) shall not
be unreasonably withheld, nor shall any unreasonable
condition be attached to such consent, and any question
arising from the operation of this subsection shall be

decided by consultation between the state organs
concerned.

108. (1) It shall be the duty of a licensee receiving
trade effluent into its sewerage system to ensure that it has
in place measures for the receipt and handling of the
effluent without causing —

(a) pollution of the environment;

No. 43

Execution of
works for
protection of
water.

Control of trade
effluent


1080
No. 43 Water

(b) harm to human health;
(c) damage to the sewerage system: or

(d) a contravention of applicable laws or standards set
by the Regulatory Board.

(2) A person shall not discharge any trade effluent
from any trade premises into the sewers of a licensee
without the consent of the licensee.

(3) An application for consent shall be made to the
licensee and shall state —

(a) the nature or composition of the trade effluent;

(b) the maximum quantity of the effluent which it
proposes to discharge on any one day;

(c) the highest rate at which it is proposed to
discharge the effluent; and

(d) any other information required by the licensee.

(4) The licensee's consent may be given subject to
conditions, including conditions requiring pre-treatment
and payments to the licensee of charges for the discharge.

(5) Any person who is dissatisfied with the decision
of the licensee on an application under this section may,

within thirty days of the decision, appeal to the Regulatory
Board.

(6) A person who contravenes the provisions of this
section commits an offence.

(7) In this section, “trade effluent” means any liquid,
whether with or without suspended particles, produced as a
by-product in the course of any trade or industry.

109.(1) The Regulatory Board may impose a
sewerage services levy on all water services within the area
of a licensee, to cover a reasonable part of the cost of
disposing of the water supplied within those limits.

(2) A portion of the levy referred to in subsection (1)
may, with the approval of the Regulatory Board, be set
aside by the licensee for use in the expansion of the
sewerage system within the area of service provision of the
licensee.

2016

Sewerage services
levy.


1081

2016 Water

110. (1) A licensee, or an applicant for a license, who
requires the compulsory acquisition of land for any of its
purposes, may apply to a county governor, or where
necessary to the Cabinet Secretary. who, on being satisfied
that such compulsory acquisition is desirable, may take the
steps necessary to secure the compulsory acquisition of the
land in accordance with the applicable laws.

(2) It shall be a condition of the licence that the
licensee or an applicant for a licence shall, for the purposes
of subsection (1) take any necessary action to ensure the
protection —

(a) of a source of supply which belongs to such
licensee or will belong to the licensee following
the acquisition;

(b) against pollution or other degradation, whether on
the surface or underground of any water resource
within such licensee’s area of jurisdiction.

(3) Any purpose for which land may be acquired
under this section shall be deemed, for the purposes of the
law on land acquisition, to be a public purpose.

111.(1) The Regulatory Board shall establish a
national monitoring and georeferenced information system
on water services.

(2) For the purposes of any systems established under
this section, the Regulatory Board may, by order, require
any person within a reasonable time or on a regular basis,
to provide it with information, documents, samples or
materials.

(3) The Cabinet Secretary may make Regulations to
facilitate the access to information by the public.

(4) Regulations made under this Act may specify
requirements and the nature of information for the keeping
of records and the furnishing of information to the
Regulatory Board.

(5) Subject to any law relating to access to
information and upon payment of the prescribed fee, a
member of the public shall have access to information
contained in any national information system.

112. Within three months after the end of each
financial year, the Regulatory Board shall prepare an

No. 43

Compulsory
acquisition of
land

Regulatory Board
to establish

Information
System

Annual report


1082
No. 43 Water

annual report of its work and activities and shall cause the
report to be published and publicized.

PART V— WATER SECTOR TRUST FUND

113. (1) There is established a water sector financing
institution to be known as the Water Sector Trust Fund.

(2) The Fund is a body corporate with perpetual
succession and a common seal and shall have power, in its
corporate name, to sue and to be sued and, in the exercise
and performance of its powers and functions, to do and
permit all such things as may lawfully be done or permitted
by a body corporate in furtherance of its objects.

114. The object of the Fund is to provide conditional
and unconditional grants to counties, in addition to the
Equalisation Fund and to assist in financing the
development and management of water services in
marginalized areas or any area which is considered by the
Board of Trustees to be underserved including —

(a) community level initiatives for the sustainable
management of water resources;

(b) development of water services in rural areas
considered not to be commercially viable for
provision of water services by licensees;

(c) development of water services in the under-served
poor urban areas; and

(d) research activities in the area of water resources

management and water services, sewerage and
sanitation.

115. (1) The powers and functions of the Fund shall
be exercised and performed under the direction of a Board
of Trustees from time to time appointed and holding office
under a trust deed to be drawn by the Cabinet Secretary.

(2) The Board of Trustees shall consist of a
chairperson and six other members recruited in accordance
with the First Schedule.

(3) The First Schedule shall have effect with respect

to the membership and procedure of the Board of Trustees
of the Fund.

2016

Establishment of
the Water Sector
Trust Fund.

Objects of the
Fund.

Board of Trustees
of the Fund.

116. (1) The powers and functions of the Board of Functions of the

Trustees shall be to—

Board of Trustees.


eg eer ere ee

1083
2016 Water

(a) manage the resources of the Fund;
(b) mobilize additional resources for the Fund;

(c) formulate and implement principles, Regulations
and procedures in consultation with the national
government and county governments for financing
projects, including efficiency and effectiveness of
funds;

(d) implement measures to ensure the efficient and
equitable sharing of the resources of the Fund
giving priority to resource allocation in—

(i) rural and urban areas where access to basic
water services is below the national average;
and

(ii) rural areas which are vulnerable to the
degradation or depletion of water resources;

(e) monitor the implementation of projects;

(f) maintain and make public available information
on the projects financed and impact of such
projects;

(g) receive grants for onward lending to water
services providers, counties, and registered
community schemes towards water services and
water resources management projects for the
underserved areas and urban poor;

(h) establish and manage subsidiary funds as may be
necessary for sustainable financing towards water
services and water resource management; and

(i) in collaboration with relevant institutions develop
incentive programmes for water resources
management including disaster management,
climate change adaptation and mitigation.

(2) The provisions of subsection (1) (g) shall only
apply to water service providers, counties and registered
community schemes, that can afford the repayment of the
funds advanced, and profits thereof used to finance water
services and water resources management projects for the
underserved areas and urban poor.

(3) The Board of Trustees of the fund shall, following
public consultation, gazette the criteria for qualification for
funding from the Fund taking account of considerations of

No. 43


1084
No. 43 Water

equity and may trom time to time following public
consultation review the criteria.

117.(1) The monies of the Fund shall consist of
monies —
(a) appropriated by Parliament from the national
budget for the purposes of the Fund;

(b) provided to the Fund from the Equalisation Fund
on agreed programmes;

(c) provided to the Fund by a county government on
agreed programmes;

(d) received by the Fund from donations, grants, and
bequests from other sources;

(e) the proceeds of the levy imposed under subsection
(2); and

(f) payable into the Fund under any Act.

(2) The Cabinet Secretary may, by Regulations
following public consultation prescribe a levy to be paid by
consumers of piped water supplied by licensed water
service providers, the proceeds of which shall be paid into
the Fund established under section 113.

118. (1) The Fund shall have Chief Executive Officer
who shall be appointed by the Board of Trustees on such
terms and conditions of service as the Cabinet Secretary
responsible for matters relating to public service on the
advice of the Salaries and Remuneration Regulatory
Authority may determine.

(2) The Chief Executive Officer shall be the
accounting officer of the Fund and, subject to the directions

of the Fund, shall be responsible for the management of the
affairs of the Fund.

(3) The Fund may appoint such officers and other
staff as may be necessary for the exercise and performance
of its functions, upon such terms and conditions as the
Cabinet Secretary responsible for matters relating to public

service on the advice of the Salaries and Remuneration
Commission may determine.

PART VI —DISPUTE RESOLUTION
119. (1) There is established a Water Tribunal.

(2) There shall be a chairperson of the Water Tribunal
appointed by the Judicial Service Commission on such

2016

Montes of the
Fund

Staff of the Fund.

Establishment of
the Water
Tribunal


1085
2016 Water

terms and conditions as may be determined by the Judicial
Service Commission.

120. The staff of the Tribunal shall be appointed,
removed from office or otherwise disciplined by the

Judicial Service Commission in accordance with Article
172 (1) (c) of the Constitution.

121. (1) The Tribunal shall exercise the powers and
functions set out in this Act and in particular shall hear and
determine appeals at the instance of any person or
institution directly affected by the decision or order of the
Cabinet Secretary, the Authority and Regulatory Board or
of any person acting under the authority of the Cabinet
Secretary, the Authority and Regulatory Board.

(2) In addition to the powers set out in subsection (1),
the Tribunal shall have the power to hear and determine
any dispute concerning water resources or water services
where there is a business contract, unless the parties have
otherwise agreed to an alternative dispute resolution
mechanism.

122. The Tribunal shall make Rules governing its
procedures.

123. In determining an appeal, the Tribunal may
affirm, quash or vary the decision or order.

124. A person aggrieved by a decision of the Tribunal
may, within twenty-one days from the date of that
decision, appeal to the Land and Environmental Court,
established under article 162(2) of the Constitution on an
issue of law.

125. A decision of a water basin organization, the
Authority, the Regulatory Board or the Tribunal against
which no appeal has been preferred within thirty days from
the date on which the decision was made, shall be binding
on all parties.

PART VII —FINANCIAL PROVISIONS

126. The funds of the Authority, Regulatory Board,
Water Storage Authority, Water Sector Trust Fund, and
water works development agencies shall respectively
consist of —

(a) monies allocated by Parliament for the purposes of

No. 43

Staff of the Water
Tribunal.

Jurisdiction of the
Tribunal.

Proceedings of the
Tribunal.

Determination of
appeals and
disputes.

Appeals to the
Land and
Environment
Court

Decisions binding
if no appeal within
thirty days

Funds of the
Authority,
Regulatory Board,
Water Harvesting
and Storage
Authority and
Water Works


1086
No. 43 Water

the each body corporate established under this
Act;

(b) such monies or assets as may accrue to each body
corporate in the course of the exercise of its
powers or in the performance of its functions
under this Act; and

(c) all monies from any other source provided,

donated or lent to each body _ corporate
respectively.

127. The financial year of each body corporate
established under this Act shall be the period of twelve
months beginning the first July and ending on the thirtieth
June in each year.

128. (1) Three months before the commencement of
each financial year, each body corporate established under
this Act shall cause to be prepared estimates of the revenue
and expenditure of the body corporate for that year.

(2) The annual estimates shall make provision for all
the estimated expenditure of the respective body corporate
for the financial year concerned and in particular, shall
provide for—

(a) the payment of the salaries, allowances and other
charges in respect of the staff of the body
corporate;

(b) the payment of pensions, gratuities and other
charges and in respect of benefits which are
payable out of the funds of the body corporate;

(c) the maintenance of the buildings and grounds of
the body corporate;

(d) the funding of training, research and development
of activities of the body corporate; and

(e) the creation of such funds to meet future or
contingent liabilities in respect of benefits,
insurance or replacement of buildings or
installations, equipment and in respect of such
other matters as the body corporates may consider
necessary.

129. (1) Every body corporate established under this
Act shall cause to be kept all proper books and records of
account of the income, expenditure, assets and liabilities.

2016

Development
Agencies

Financial year.

Annual estimates.

Accounts and
audit.


1087

2016 Water

(2) Within a period of three months after the end of
each financial year, each body corporate shall submit to the
Auditor-General the accounts of the body corporate in
respect of that year together with a—

(a) statement of the income and expenditure of the
body corporate during that year; and

(b) statement of the assets and liabilities of the body
corporate on the last day of that financial year.

(3) The annual accounts of the body corporate shall be
prepared, audited and reported upon in accordance with the
provisions of the Constitution and the Public Audit Act,

2015.

130. The Authority, the Regulatory Board and the
Water Storage Authority may, subject to the Public Finance
Management Act, 2012 retain in a fund managed by the
respective bodies, the revenue from permit charges, water
user fees, regulatory levy, licence fees and any other
authorized charges and shall use such revenue in meeting
the costs incurred in the performance of their functions.

131. (1) All funds collected for water services by the
licensed water services providers holding county or
national public assets on behalf of the public through water
services bills and other sources, shall be used entirely for
the purpose of covering costs for the provision of water

services and asset development according to Regulations
made by the Regulatory Board.

(2) The licensed water services providers shall not be
required to pay any fees for the use of public assets for the
provision of water services other than the repayments of
loans acquired for the development of those assets.

(3) Dividends or other payments shall not be paid to
the owners of public water services providers as long as the
universal rights of access to safe and clean water have not
been achieved in the designated service areas.

132. All income through water permits, abstraction
and water user fees shall be entirely used for the
conservation and management of water resources.

PART VIIT—GENERAL PROVISIONS

133. (1) Any notice required to be served under this
Act shall be served —

No. 43

No 34 of 2015.

Retention of

charges and fees.
No 12 of 2012.

Funds collected
by water services
providers.

Income from
water permits
abstraction and
water user fees.

Service of notices.


1088
No. 43 Water

(a) by delivering it personally to the person required

to be served, or, if such person is absent or cannot
be found—

(i) by leaving it at the person's usual or last known
place of abode in Kenya;

(ii) by post, addressed to the person's usual or last
known address in Kenya; or

(b) in the case of a notice required to be served on a
local authority, company or other corporate body,
by delivering it to its principal officer or by
leaving it at such principal officer’s office with a
person employed there, or by registered post.

(2) If any landholder is not known and, after diligent
inquiry, cannot be found, such notice may be served by
leaving it, addressed to such landholder, with an occupier
of the land or, if there is no apparent occupier, by causing it
to be put in a conspicuous position on the property in
Kenya last known to have been occupied by the landholder.

(3) Any notice required to be given to a landholder
may be addressed to the owner of land or premises
described in the address in respect of which the notice is
given.

134. Any order, notice, consent, approval,
permission, demand, objection, application, standard or
other thing authorised or required by this Act to be given,
made, set, determined or issued by or to the Cabinet
Secretary, the Authority, Regulatory Board, a county
government executive, a licensee or other state organ shall
be in writing.

135. (1) Any order, notice, consent, approval, demand
or other document which the Authority, the Regulatory
Board, county government executive, or other state organ
is authorised or required by this Act to give, make or issue
may be signed on its behalf —

(a) by the Chief Executive Officer of the relevant
institution; or

(b) by any officer of the institution authorised by it in
writing to sign documents of the particular kind or
to sign the particular document.

2016

Order, etc., to be
in writing.

Authentication of
documents.


1089

2016 Water

(2) Any document purporting to bear the signature of
any person—

(a) expressed to hold an office by virtue of which he
or she is, under this section empowered to sign a
document; or

(b) expressed to be duly authorised by the respective
state organ in subsection (1) to sign such a
document or the particular document,

shall, for the purposes of this Act, be deemed, unless the
contrary is proved, to be duly given, made or issued on
behalf of the Authority, the Regulatory Board, or other
state organ as the case may be.

136. The production of—

(a) a permit, or a copy of a permit, certified by the
Chief Executive Officer of the Authority; or

(b) a_ licensing certificate or copy of the licensing
certificate, certified by the Chief Executive Officer
of the Regulatory Board; or

(c) a licence, or a copy of a licence, certified by the
Chief Executive Officer of the Regulatory Board.

shall, without further proof be prima facie evidence in
any proceedings of the matters and things specified therein.

137. No matter or thing done or omitted by —

(a) the Cabinet Secretary, the Authority, the
Regulatory Board, or other state organ exercising
powers or functions under this Act;

(b) any person acting at the direction of the Cabinet
Secretary; or

(c) a person acting at the direction of the Authority,
the Regulatory Board , or a state organ

shall, if the matter or thing was done or omitted in good
faith for the purpose of executing this Act or any rule,
regulation or order made under this Act, subject the person
in his or her personal capacity to any action, suit, claim or
demand whatsoever.

138. Despite anything contained in this Act, any
powers and functions conferred or imposed under this Act
affecting land shall, in respect of community land, be
exercised and performed subject to any written law relating
to that land.

No. 43

Permit or licence
to be evidence of
power or function.

Protection from
liability.

Application of Act
to community
land.


1090
No. 43 Water

139. (1) A requirement imposed by or under this Act
for a person in this section referred to as the designated
person to undertake public consultation in relation to any
application made, or action proposed to be taken under this
Act shall be construed as a requirement to ensure that this
section is complied with in relation to that application or
action.

(2) The designated person shall publish a notice, in
relation to the application or proposed action—

(a) in at least one national newspaper of daily
circulation; and

(b) in at least one Kenyan radio station broadcasting
in that locality.

(3) The notice shall —

(a) set out a summary of the application or proposed
action;

(b) state the premises at which the details of the
application or proposed action may be inspected;

(c) invite written comments on or objections to the
application or proposed action;

(d) specify the person or body to which any such
comments are to be submitted; and

(e) specify a date not earlier than thirty days after
publication of the notice by which any such
comments are required be received.

(4) The designated person shall make arrangements
for the public to obtain copies, at reasonable cost, of
documents relating to the application or proposed action
which are in the possession of the designated person.

(5) The designated person shall consider —

(a) any written comments received on or before the
date specified under subsection (3) (e); and

(b) any comments whether in writing or not received
at any public meeting held in relation to the
application or the proposed action at which the
designated person was represented or pursuant to
any other invitation to comment.

2016

Public
consultation


1091
2016 Water

(5) The designated person shall publish in accordance
with subsection (2), notice of the fact that a copy of the
decision and the reasons for the decision in relation to the
application or proposed action is available for public
inspection at the same premises as were notified under

subsection (3)(b).

(6) Regulations made under this Act may require, the
designated person to hold a public meeting in relation to
the application or proposed action.

140. (1) If the Authority is satisfied that, by reason of
an exceptional shortage of rain or by reason of accident or
other unforeseen circumstances, a serious deficiency of
water for essential domestic purposes exists or may occur
in any area, it may by order—

(a) declare that a crisis exists; and

(b) direct a person who has a supply of water in
excess of his or her needs for domestic purposes to
supply to the area concerned, or to a specified
person in the area, such quantity of water, and for
such period, as the order may specify.

(2) A person directed by an order under this section
who fails to comply with the provisions of the order
commits an offence.

(3) An order under this section may require or
authorise —

(a) the laying of pipes and the construction of works
on any land;

(b) the entry on to any land by servants or agents of
the Authority; and

(c) such other measures as the Authority may consider
necessary for the giving and taking of any such
water.

(4) If a person to whom an order under this section is
directed fails to comply with the order, the Authority may
direct any person to—

(a) take possession of the water supply and operate
any works of the person concerned for the
drawing, diversion or use of water; and

No. 43

Special powers 1n
case of shortage of
water.


1092
No. 43 Water

(b) exercise the person's rights in connection with
them during the period of the order, subject to any
conditions imposed by the order.

(5) It shall be the duty of any person exercising any
powers under this section to do so with reasonable care and
in such a manner as to cause as little damage as possible.

(6) Any payment made when undertaking the action
contemplated under subsection (4), or such proportion of it
as the Authority may determine, may be recovered by the
person acting under the direction of the Authority, as a debt
due from a person benefiting by the supply of water under
the order.

(7) A person who, without lawful authority, hinders or
obstructs any person acting in pursuance of an order under
this section, or interferes with any works constructed or
under construction in pursuance of such an order, commits
of an offence.

141. An inspection of any works authorized to be
constructed under this Act shall not be deemed to constitute
or imply any guarantee of the works constructed, or to
support or justify any claim against the Authority, the
Regulatory Board, the Cabinet Secretary, a county
government or a licensee in connection with any such
works.

142. (1) The Cabinet Secretary may make
Regulations with respect to any matter which by this Act is
required or permitted to be prescribed, or which is
necessary or expedient to be prescribed for the carrying out
or giving effect to this Act.

(2) Without prejudice to the generality of subsection
(1), such Regulations may make provision with respect
to—

(a) delegation by the Authority, the Board or a
licensee of their respective powers and functions;

(b) abstraction of ground water and works therefore,
including the licensing of borehole constructors;

(c) construction, extension or improvement of dams
and the licensing of persons carrying on business
as dam contractors;

2016

No warranty
implied by
inspection.

Regulations.


MN eee

1093

2016 Water

(d) the licensing of engineers and other persons
offering professional services in respect of water
resources or water services;

(e) requirements in respect to bottled or mineral
waters;

(f) national public water works;

g) information to be made available to the public
under the Act;

(h) requirements for the keeping of records and the
furnishing of information to the Authority or the

Board;

(i) the transfer of functions, assets, liabilities and
staff;

(j) rain water harvesting and household water storage;
or

(k)any saving, temporary or transitional provision in
consequence of the repeal of the Water Act, 2002.

(3) Regulations made under this section may create
offences in respect of any contravention of the Regulations
and may for any such offence impose penalties not
exceeding one million shillings or imprisonment not
exceeding two years, or both such fine and imprisonment.

(4) Regulations made under this Act shall be
published in the Gazette and shall come into effect upon
publication.

143. (1) A_ person shall not, without authority
conferred under this Act—

(a) wilfully obstruct, interfere with, divert or obstruct
water from any watercourse or any water resource,
or negligently allow any such _ obstruction,
interference, diversion or abstraction; or

(b) throw, convey, cause or permit to be thrown or
conveyed, any rubbish, dirt, refuse, effluent, trade
waste or other offensive matter or thing into or
near to any water resource in such manner as to
cause, or be likely to cause, pollution of the water
resource.

(2) A person who contravenes this section commits
an offence.

No. 43

No 8 of 2002

Obstruction or
pollution of

watercourse or
water resource


1094
No. 43 Water

144. (1) Without prejudice to any other remedy or
course of action, if a person contravenes any provision
under this Act, then, the Authority, the Regulatory Board,
the county government executive concerned or the licensee
concerned may, by order served on the person concerned,
require that person within a reasonable time specified in
the order to remedy the contravention and in particular —

(a) to clean up any pollution or make good any other
harm identified in the order which was caused to
any water resource by reason of the contravention;
or

(b) to remove or destroy any works, plant or
machinery employed for the purposes of the
contravention.

(2) Where the order in subsection (1) has not been
complied with, the Authority, the Regulatory Board, the
concerned county government executive or the licensee

may take such steps as are necessary to remedy the
contravention, and the expenses incurred in doing so shall
be recoverable at the instance of the Authority, the

Regulatory Board, the concerned county government

executive or the licensee concerned through an application
to the Tribunal.

(3) A person aggrieved by an order under this section
may appeal to the Tribunal.

145. A person shall not—

(a) wilfully obstruct, molest or hinder any inspector or
employee of a person authorised by the Cabinet
Secretary, the Authority, the Regulatory Board, a
county government executive or a licensee in the
exercise or performance of his or her powers and
functions under this Act;

(b) without the written permission of the Authority,
Regulatory Board, or the county government
executive, knowingly or wilfully —

(i) deface, alter or remove; or

(ii) cause to be defaced, altered or removed, any
documents, survey mark, water gauge, weir
or measuring device or other work, structure
or approval installed with the approval of the

2016

Remedy of
defaults.

Miscellaneous
offences.

el a


1095
2016 Water

Authority, Regulatory Board or county
government executive;

(c) wilfully hinder or interrupt, or cause to be hindered
or interrupted, any permit holder, employee,
contractor or agent of a permit holder, in the
lawful exercise or performance of any powers and
functions under this Act;

(d) without lawful authority, wilfully let off or
discharge water from the works any permit holder
so that the permit holder loses the use of that
water;

(e) without lawful authority, lay, erect or construct, or
cause to be laid, erected or constructed, any work
to connect with the works of any permit holder
which is capable of drawing water from that
works;

(f) unlawfully interfere with the works of any permit
holder; or

(g) neglect or fail to comply with lawful order given
under this Act.

(2) A person who contravenes the provisions of this
section commits an offence.

146. Without prejudice to the rights of any person to
bring proceedings in respect of an offence under this Act,
and subject to Article 157 of the Constitution, the
Authority, the Regulatory Board, a county government
executive or a licensee may institute and maintain criminal
proceedings in any court against any person accused of an
offence under this Act or under any Regulations or
Regulations made under this Act.

147. A person who commits an offence under this
Act, or under any Regulations or made under this Act,
shall, if no other penalty is prescribed in respect of the
offence, be liable to a fine not exceeding one million
shillings or to imprisonment for a term not exceeding two
years, or to both such fine and imprisonment.

PART IX—TRANSITIONAL PROVISIONS

148. (1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements existing at
the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the Water

No. 43

Criminal
proceedings.

General penalty

Transfer of
functions, assets,
lability and staff
from Water
Resource
Management


1096
No. 43 Water

Resources Management Authority established under the
Water Act, 2002 shall upon commencement of this Act. be
deemed to have vested in or to have been acquired,
incurred or entered into by or on behalf of the Authority to
the same extent as they were enforceable by or against the
Water Resource Management Authority before the
commencement of this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
Water Resources Management Authority established under
the Water Act, 2002 in respect of any matter shall continue
by or against the Authority.

(3) A person who immediately before _ the
commencement of this Act was an employee of the Water
Resources Management Authority established under the
Water Act, 2002 shall, on the commencement of this Act,
be deemed to be an employee of either the Authority or the
basin water resources boards as the case may be on terms
to be determined by the relevant bodies subject to the
advice of the Salaries and Remuneration Commission.

149.(1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements not linked
to water services provision as provided for in section 148,
existing at the commencement of this Act and vested in,
acquired, incurred or entered into by or on behalf of the
National Water Conservation and Pipeline Corporation
established by the National Water Conservation and
Pipeline Corporation Order, 1988 shall, upon the
commencement of this Act be deemed to have vested in or
to have been acquired, incurred or entered into by or on
behalf of the Water Harvesting and Storage Authority to
the same extent as they were enforceable by or against the
National Water Conservation and Pipeline Corporation
before the commencement of this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
National Water Conservation and Pipeline Corporation in
respect of any matter, shall continue by or against the
National Water Harvesting and Storage Authority.

(3) A person who immediately before the
commencement of this Act was an employee of the
National Water Conservation and Pipeline Corporation

2016

Authority to the
Authority

No 8 of 2002

No 8 of 2002

Transfer of
functions, assets,
lability and staff
from National
Water
Conservation and
Pipeline
Corporation to
National Water
Harvesting and
Storage Authority

LN No 270 of
1988

alta mean


ane ene e ec eeen nen ccncceernn ec ceceneen ee eenc erence eee een ne ee enn ce ee nn een eee renee eee dren eee eee ence eeeeeee rec reece Te "
nr ree — re

1097
2016 Water

shall, on the commencement of this Act, be deemed to be
an employee of the National Water Harvesting and Storage
Authority on terms to be determined by the Salaries and
Remuneration Commission.

150.(1) All property, assets, rights. liabilities,
obligations, agreements and other arrangements existing at
the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the Water
Services Regulatory Board established by the Water Act,
2002 shall, upon commencement of this Act, be deemed to
have vested in or to have been acquired, incurred or entered
into by or on behalf of the Regulatory Board to the same
extent as they were enforceable by or against the Water
Services Regulatory Board before the commencement of

this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
Water Services Regulatory Board established under the
Water Act, 2002 in respect of any matter shall continue by
or against the Regulatory Board.

(3) A person who immediately before the
commencement of this Act was an employee of the Water
Services Regulatory Board established under the Water
Act, 2002 shall, on the commencement of this Act, be
deemed to be an employee of the Regulatory Board on
terms to be determined by the Salaries and Remuneration
Commission.

151.(1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements existing at
the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the Water

Services Trust Fund established by the Water Act, 2002

shall, upon the commencement of this Act, be deemed to
have vested in or to have been acquired, incurred or entered

into by or on behalf of the Water Sector Trust Fund to the
same extent as they were enforceable by or against the

Water Services Trust Fund before the commencement of
this Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
Water Services Trust Fund established under the Water
Act, 2002 in respect of any matter shall continue by or
against the Water Sector Trust Fund.

No. 43

Transfer of
functions, assets,
liabilities and staff
from the Water
Services
Regulatory Board

to the Regulatory
Board.

No. 8 of 2002

No. 8 of 2002.

No. 8 of 2002.

Transfer of
functions, assets,
habilities and staff
from the Water
Services Trust
Fund to the Water
Sector Trust Fund

No. 8 of 2002

No 8 of 2002.


1098
No. 43 Water

(3) Any person who immediately before the
commencement of this Act is an employee of the Water
Services Trust Fund established under the Water Act, 2002
shall, on the commencement of this Act, be deemed to be
an employee of the Water Sector Trust Fund on the terms
to be determined by the Salaries and Remuneration
Commission.

152.(1) Subject to the Transition to Devolved
Government Act, 2012 all property, assets, rights,
liabilities, obligations, agreements and other arrangements
existing concerning the operation of water services boards
at the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the water
services boards established by the Water Act, 2002 shall,
upon commencement of this Act, be deemed to have vested
in or to have been acquired, incurred or entered into by or
on behalf of the water works development agencies to the
same extent as they were enforceable by or against the

water services boards before the commencement of this
Act.

(2) Any legal proceedings pending in any court, the
Water Appeal Board or other tribunal by or against the
water services board established under the Water Act, 2002
in respect of any matter shall continue by or against the
water works development agencies.

(3) A person who at the commencement of this Act is
an employee of the water services boards established under
the Water Act, 2002 shall be deployed as may be
determined by the Cabinet Secretary to the public sector
institutions or to the county governments.

(4) The Cabinet Secretary will publish, in
consultation with the county and public sector institutions
referred to in subsection (3), a plan of transfer of staff,
assets, liabilities and contracts.

153.(1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements linked to
water service provision existing at the commencement of
this Act and vested in, acquired, incurred or entered into by
or on behalf of the water services boards and the National
Water Conservation and Pipeline Corporation shall, upon
commencement of this Act, be deemed to have vested in or
to have been acquired, incurred or entered into by or on

2016

No & of 2002

Transfer of
functions, assets,
liability and staff
from water
services boards to
water works
development
agencies.

No. 1 of 2012.

No 8 of 2002

No. 8 of 2002.

Transfer of
functions, assets,
habilities,
obligations,
agreements and
other
arrangements to
county or cross-
county water
service providers.


1099
2016 Water

behalf the county water services providers or cross county
water services providers to the same extent as they were
enforceable by or against the water services boards and the
National Water Conservation and Pipeline Corporation
before the commencement of this Act.

(2) Any other public property, liabilities and contract
for water services provision shall be held in trust for the
public by the water services provider subject to such terms
or provisions as may be specified in the Regulations for the
exception of public property, liabilities and contracts which
shall be vested in cross-county water services providers.

(3) The county governments shall make agency
agreements and provision for the use of the public property
referred to in subsection (2), and any liabilities and
contracts not held by water services boards or county water
services providers in respect of such property.

154. The existing water services providers shall
continue to operate as the county water services providers
or cross county water services providers as the case may be
within the period specified in the transfer plan published by
the Cabinet Secretary.

155. (1) All property, assets, rights, liabilities,
obligations, agreements and other arrangements existing at
the commencement of this Act and vested, acquired,
incurred or entered into by or on behalf of the Water
Appeals Board established by the Water Act, 2002 shall
upon commencement of this Act be deemed to have vested
in or to have been acquired, incurred or entered into by or
on behalf of the Water Tribunal to the same extent as they
were enforceable by or against the Water Appeals Board
before the commencement of this Act.

(2) Any legal proceedings pending in the Water
Appeals Board established under the Water Act, 2002 in
respect of any matter shall continue in the Water Tribunal.

(3) A person who immediately before the
commencement of this Act is an employee of the Water
Appeals Board established under the Water Act, 2002
shall, on the commencement of this Act be deemed to be an
employee of the Water Tribunal on terms’ to be
determined by the Salaries and Remuneration Commission.

No. 43

Water service
providers to
continue to
operate

Transfer of
functions, assets,
liability and staff
from Water
Appeals Board to
Water Tribunal

No. 8 of 2002.
No. 8 of 2002

No. 8 of 2002.


1100
No. 43 Water

156.(1) The Water Act 2002, is repealed.

(2) The National Water Conservation and Pipeline
Corporation Order, 1988, is revoked.
(3) Notwithstanding the repeals effected by this section—

(a) the Water Appeals Board, Water Resources
Management Authority, a water services board or
a water services provider and any other body
established under an enactment repealed by this
section shall be deemed to continue in being; and

(b) any person or body performing any functions
under the Water Act, 2002 shall continue to do so,
and in so doing may exercise any power vested in
that person or body with respect to the
performance of those functions,

until the Cabinet Secretary, by notice in the Gazette
revokes this subsection in full or in part as may be
necessary.

(4) Without prejudice to subsection (3), Regulations
made under section 142(2)(i) shall require that the transfer
of functions, assets, liabilities and staff shall be completed
within a period of three years following _ the
commencement of the Act.

(5) The provisions of the Environmental Management
and Coordination Act, 1999 relating to water resources
conservation and protection and water pollution control
shall be exercised subject to the relevant provision of this
Act and only in the event that the Board has failed or
neglected to take appropriate action to exercise its powers
and functions under this Act.

157. A right to the use of water in any body of water,
being a_ right existing immediately before the
commencement of this section and which was acquired —

(a) under any provision of the Water Act, 2002
repealed by this Act;

(b) under the Water Ordinance, 1929;

(c) by specific grant, before Ist July, 1935, by or on
behalf of the Government in any title under the
Government Lands Act or under the repealed
Crown Lands Ordinance, 1902 or

2016

Repeals, Savings
and Transitional
Provisions

No 8 of 2002

LN 270/1988

No 8 of 2002

No 8 of 1999.

Existing water
rights.

No. 8 of 2002


[lot
2016 Water

(d) by agreement or otherwise.

shall be deemed to be a right conferred by a permit under
this Act.

158. A county government shall subject to sections
70(1) (a) and (b), 117 and 120 of the County Governments
Act, 2012—

(a) give effect to national water services standards and
conditions set by the Regulatory Board for
purposes of ensuring consumer protection; and

(b) take into consideration the requirement relating to
tariffs gazetted by the Regulatory Board while
imposing tariff.

159. The County Governments Act, 2012 is amended
in—
(a) section 117(1) by inserting the following new
paragraph immediately after paragraph (a) —

“(aa) comply with the respective policy and
standards provided by the National
Government”;

(b) section 120 by inserting the following new
subsection immediately after subsection (1)—

“(1A) Notwithstanding subsection (1), a
county government or any agency delivering
services in the county shall adopt and implement
tariffs and pricing policy subject to the existing
National Government laws and policies.”

No. 43

Responsibility of
acounty
government

Consequential
amendments

No 17 of 2012.


1102
No. 43 Water

SCHEDULES
FIRST SCHEDULE (s. 14)

MEMBERSHIP AND PROCEDURE OF BOARDS,
AND COMMITTEES

1. (1) This Schedule applies to—
(a) the board of the Authority;
(b) the board of the Regulatory Board ;

(c) the board of the water works development
agencies;

(d) the board of Water Sector Trust Fund;

(e) the board of the National Water Harvesting abd
Storage Authority ;_and

(f) a committee or tribunal established under this Act.

(2) In this Schedule, unless the context otherwise
requires —

“board” means a board to which this Schedule applies;

“Chairperson” means the Chairperson of a board,
Tribunal or Committee;

“member” means a member of a board, Tribunal or
committee.

2. (1) In making an appointment to a board, the
Tribunal or a committee, the person making the
appointment shall have regard to—

(a) Article 10 of the Constitution of Kenya = on
national values and principles of governance;

(b) Article 232 of the Constitution of Kenya on
values and principles of public service;

(c) the academic qualifications, professional
experience, expertise, character and integrity of
the potential candidates for appointment;

(d) gender, regional and ethnic diversity; and

(e) the degree to which water users, or water users of
particular kinds, are represented on the board or
committee at the time the appointment is made.

2016

Application of
this schedule.

Qualification of
members.

- '
er
anette cseneneen slit crectatan i


1103

2016 Water

(2) The Chairperson and members shall be identified
for appointment through an open competitive process.

3. (1) A member shall hold office for such term, not
exceeding three years, as may be specified in the
instrument of appointment.

(2) A member shall be eligible for re-appointment for
one further term.

4. (1) A member may be appointed to act in the
office of Chairperson during the illness or absence of the
Chairperson, and a member so appointed shall have all the
powers and be able to carry out all the functions of the
Chairperson.

(2) An appointment under this paragraph may be
made, and at any time revoked, by the person or body who
appointed or elected the Chairperson.

5. The terms and conditions of service of a member,
including the remuneration, allowances and other expenses
to which the member shall be entitled to, shall be
prescribed by Regulations made under this Act.

6. (1) The office of a member shall become. vacant
if —
(a) such member dies, resigns or is removed from
office;

(b) such member absents himself or herself from four
consecutive meetings of the board or committee of
which reasonable notice has been given to the
member , unless —

(1) the board or committee has granted the
member leave to be absent from those
meetings; or

(ii) within four weeks after the last of the four
meetings, the member is excused by the board

or committee for having been absent from the
meetings;

(c) the member becomes bankrupt, applies to take the
benefit of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her
remuneration for their benefit:

No. 43

Term of office.

Acting
chairperson

Terms and
conditions of
service.

Vacancy in office
of member.


1104
No. 43 Water 2016

(d) such member 1s adjudged or declared by any
competent court or tribunal to be of unsound
mind; or

(e) such member is convicted of an_ offence
punishable by imprisonment for twelve months or
more.

(2) If the office of a member becomes vacant, the
respective appointing authority shall fill the vacancies as
prescribed in this Act.

7. (1) A member who has a direct or indirect Disclosure of ;
. . ecuniary interes
pecuniary interest — P %

(a) in a matter which is being considered, or is about
to be considered, at a meeting of a board or
committee of which he or she is a member; or

(b) in a thing being done or about to be done by the
board or committee,

shall, as soon as possible after the relevant facts have
come to the member’s knowledge, disclose the nature of
the interest at a meeting of the board or committee.

(2) A disclosure to the Board or committee that the
member concerned —

(a) is a member, or is in the employment, of a
specified company or any other body;

(b) is a partner, or is in the employment, of a specified
person; or

(c) has some other specified interest relating to a
specified company or other body or a specified
person,

shall be deemed to be a sufficient disclosure of the
nature of the interest in any matter or thing relating to that
company or other body or to that person which may arise
after the date of the disclosure.

(3) The board or committee shall cause particulars of
any disclosure made under subparagraph (1) or (2) to be
recorded in a book kept for the purpose and that book shall
be open at all reasonable hours to the inspection, free of
charge, of any person.

(4) After a member has, or is deemed to have,
disclosed the nature of an interest in any matter or thing


1105

2016 Water

under subparagraph (1) or (2), the member shall not. unless
it is otherwise determined —

(a) be present during any deliberation, or take part in
any decision of the board or committee with
respect to that matter: or

(b) exercise or perform any powers or functions under
this Act with respect to the subject matter of the
disclosure.

(5) A determination under subparagraph (4) may only
be made —

(a) in relation to the Management Board, Regulatory
Board, Board of Trustees or the Water Storage
Board by the Cabinet Secretary;

(b) in relation to a basin water resources committee
by the Authority; or

(c) in relation to a water services provider by the
Regulatory Board.

(6) Subparagraph (4) does not apply to a member
whose interest consists merely of the fact that the member
is the holder of a permit.

(7) A contravention of this paragraph does not
invalidate any decision of the board or committee or the

exercise or performance of any power or function under
this Act.

(8) A reference in this paragraph to a meeting of a
board or committee includes a reference to a meeting of
any subcommittees of the board or committee.

8. Except as otherwise provided by or under this
Act—

(a) meetings of a board or committee shall be held as
often as maybe necessary for the dispatch of their
business but they shall not be less than four any

financial year.

(b) a meeting of the board or committee shall be held
on such date time and place as the chairperson

may decide;

(c) the chairperson shall, on the written application of
one third of the members convene a special
meeting of the board or committee;

No. 43

General
procedure.


1106
No. 43 Water

(d) unless the majority of the total membership of the
board or committee otherwise agree, at least
fourteen days written notice of every meeting of
the board or committee shall be given to every
member of the board or committee; and

(e) the procedure for the convening of meetings and
for the conduct of business at those meetings shall
be as determined by the Chairperson.

9. A third of the members of a board or a committee
shall constitute a quorum at any meeting of the board or
committee.

10. The Chairperson or, in the absence of the
Chairperson, the acting Chairperson or in his or her
absence, a member appointed by the members then present
shall preside at a meeting of a board or committee.

11. (1) A decision supported by a majority of the votes
cast at a meeting of a board or committee at which a
quorum is present shall be the decision of the board or
committee.

12. Subject to paragraph 9, proceedings of the board
or committee shall not be invalid by reason only of a
vacancy among the members.

13.(1) The presiding member at a meeting of a board
or committee shall cause a record of the proceedings at the
meeting to be made.

(2) Records made for the purposes of this paragraph
may be destroyed after the expiry of the period prescribed
by Regulations made under this Act.

14. (1) The first meeting of the board of the Authority,
Regulatory Board, the Fund or the National Water Storage
Authority shall be called by the Cabinet Secretary.

(2) The first meeting of a basin water resources
committee shall be called by the Authority in such manner
as the Authority consider necessary.

(3) The first meeting of a water services provider
shall be called by the county government establishing it in
such manner as it considers necessary.

15. The First Schedule applies to the county and
cross-county water services providers and the Regulatory
Board will set additional criteria.

2016

Quorum.

Presiding
members.

Decisions.

Proceedings

Record of
proceedings.

First meeting.

Application of
first schedule.


1107

2016 Water
SECOND SCHEDULE (s. 41)

CONDITIONS RELATING TO CONSTRUCTION OF
WORKS

1. In this schedule, “authorised works” means works
the construction of which is authorised by a permit.

2. Any authorised works may, if the Authority or
Regulatory Board so determines, be inspected during
construction by its officers.

3. (1) Upon any inspection made under this
Schedule, the Authority or Regulatory Board may order
the permit holder to make any addition or alteration which
it considers necessary for the security of any authorised
works, whether completed or in the course of construction.

(2) If such an order is not complied with to the
satisfaction of the Authority or Regulatory Board within
such period as it may specify, the permit authorising
construction of the works may be cancelled or modified by
the Authority or Regulatory Board.

4. (1) A permit holder constructing any authorised
works—

(a) shall, during the construction, keep open for safe
and convenient travel all public roads and rights of
way publicly used as such, when they are crossed
or interfered with by the works; and

(b) shall, before water is admitted to the works,
construct to the satisfaction of the county
government concerned or, at the option of the
county government, refund to it the costs of
construction by it —

(i) a substantial bridge with proper and sufficient
approaches thereto over the works; and

(ii) such railings, fences, guard posts, culverts,
face-walls and other structures and
appurtenances as the county government, with
the approval of the Authority — or
Regulatory Board, may declare to be necessary
in the public interest.

No. 43

Meaning of
“authorised
works”.

Inspection of
works during
construction.

Works to be made
secure

Road crossings


1108
No. 43 Water

(2) All respective bridges, approaches and
appurtenances shall be maintained by the permit holder, or
alternatively, at the option of the county government, by
the county government at the expense of the constructor.

(3) The county government concerned may at any
time at its own cost, renew or alter any such bridge or any
structure or works in connection therewith.

5. (1) Upon the expiration of the time limited by a
permit for construction of works authorised by the permit,
or where the construction is completed before the
expiration of that time, the permit holder shall submit a
completion certificate in the prescribed form.

(2) On submission of the certificate in sub-paragraph
(1), an officer appointed for the purpose by the Authority
or Regulatory Board, may make an inspection of the works
to ascertain that —

(a) the works have been completed in accordance with
the permit;

(b) the easements, if any, for the works have been
obtained;

(c) agreements, if any are necessary, have been
entered into for the supply of water for utilization
on lands which are not the property of the permit
holder or for the drainage of lands; and

(d) the works as constructed are of the required
capacity.

(3) If construction is not completed within the time
limited by the permit, a progress report shall be submitted
in lieu of a completion report, and the permit holder may
apply for an extension of time.

(4) An extension of time under subparagraph (3) may
be refused or may be sanctioned upon such terms as the
Authority or Regulatory Board may specify.

6. Upon the expiration of the time set out in the
permit or any extension of that time for the construction of
works authorised by the permit, the rights granted to the
permit holder under the permit shall cease, and any works
constructed, erected, fixed or acquired at the date of such
determination may be taken over and operated, or disposed

2016

Completion
certificate and
inspection

Forfeiture of
nights if works not
completed within
time allowed


oe Rr a

1109
2016 Water

of, in such manner as the Authority or Regulatory Board
may specify.

7. (1) Every permit holder shall maintain and retain

his or her works in a good, proper and workman like
manner to the satisfaction of the Authority or Regulatory

Board.

(2) Pursuant to subparagraph (1),every permit holder
shall ensure that —

(a) the works at all times are of sufficient strength
and capacity for the fulfilment of the purposes for
which they were constructed; and

(b) no damage occurs to any road, property or work in
their vicinity.

No. 43

Works to be kept
in repair.


1110
No. 43 Water

THIRD SCHEDULE (s. 39)
EASEMENTS

1. The acquisition of an easement in accordance with
this schedule shall not affect the burden or benefit of any
encumbrance on the land existing at the date of the
acquisition or the liability or right of any person in respect
thereof.

2. (1) An easement shall include the right of access,
along a route to be approved by the Authority or
Regulatory Board after consultation with the owner, to any
piece of land contiguous to the water of the permit holder
in so far as may be necessary for the purpose of
constructing, inspecting, maintaining, operating or
repairing the works of the permit holder and for any
purpose necessary for the effective enjoyment of the
easement.

(2) The permit holder shall give reasonable notice to
the occupier of the land over which the easement is held of
his or her intention to enter the land for any of the purposes
mentioned in this paragraph.

3. A permit holder who has acquired an easement
which authorises the construction of a canal—

(a) shall take and maintain adequate measures for
preventing the introduction into the canal of a
greater quantity of water than that which the canal
is capable of carrying; and

(b) shall not cause damage to any land in respect of
which the easement is held by permitting the
accumulation of weeds, silt or any other
obstruction or nuisance which might cause
flooding, or any other damage.

4. (1) If damage is caused, as the result of works of a
permit holder to the land over which the easement is held,
the landholder may require the permit holder to construct
such additional works as are necessary, in the opinion of
the Authority to prevent such damage, and the Authority
may by order require the permit holder to construct such
additional works at his or her sole expense.

(2) If the permit holder fails to comply with an order
of the Authority given under this paragraph, the Authority
may cancel the permit.

2016

Encumbrances

Easement
includes rights of
access

Permit holder to
avoid flooding
lands and
maintain canal
satisfactorily.

Damage caused
by works — of
permit holder.


eee er ee neeeeeee nearer eee ee eee ee een eeeee cere eee ee aera eee erence ceeec erence eee area ee ee TS I I “EP —eU e—ee er

L111
2016 Water

5. (1) A permit holder who has acquired an easement
for the construction of works on another landholder's land
which prevents the landholder passing freely over or on the
land or interferes with his or her existing works, structures
or devices upon the land shall, at his or own expense,
construct and maintain in repair, to the satisfaction of the
Authority or Regulatory Board and under such conditions
as it may prescribe —

(a) such bridges and other structures and devices as
shall make communication safe and convenient;
or

(b) such works, structures or devices as the Authority
or Regulatory Board considers necessary to
enable the landholder to enjoy the use of any
work, structure or device interfered with.

(2) Any permit holder who fails to comply with the
provisions of this paragraph commits an offence.

6.(1) A permit holder claiming an easement under this
Act shall serve a notice on the holder of the land on, over
or through which the permit holder desires to acquire the
easement, and shall in the notice state the following
particulars, and such further particulars as may be required
by Regulations made under this Act—

(a) a description of the proposed works and a
statement of their use;

(b) a statement of the quantity or discharge of water,
if any, to be diverted or dealt with;

(c) a map showing clearly the nature and locality of
any works or area of swamp or land to be
reclaimed, if the easement is for reclamation of a
swamp or lands;

(d) a statement of the area of the land (if any) which is
or will be—

(i) occupied by the works;
(ii) flooded as a result of the works;

(1) required for the purposes of inspection and
maintenance of the works;

No. 43

Permit holder to
construct works to
enable landholder
to enjoy his works
if interfered with.

Permit holder
desiring easement

to serve notice on
landholder.


1112
No. 43 Water

(ii) required for the excavation or collection of
material for the works, or for the deposit of
soil or material derived from the works;

(iii) required for a road or roads to obtain access
to the works; or

(iv) required for the control or prevention of
pollution of the water to be used; and

(e) a statement of the compensation which is offered
and the period of time during which the permit
holder wishes to enjoy the easement.

(2) A copy of the notice shall be sent by the permit
holder to the Authority or Regulatory Board.

7. If the landholder agrees to the claim for an
easement, either as originally proposed or as modified by
agreement, the permit holder—

(a) shall execute a deed including the particulars of

the claim as agreed and any other relevant matter;
and

(b) after the execution of the deed by the parties
concerned, shall send two copies of the deed
certified by the Registrar of Titles to the
Authority.

8. If the landholder does not, within two months after
the service of the notice provided for in paragraph 6 of this
Schedule, agree to the claim for an easement or to any
other matter necessary for an easement, the permit holder
may apply to the Authority, in the prescribed manner, for
an easement, and shall serve notice of such application
upon the landholder.

9. (1) The Authority may either dismiss the claim for
an easement or grant the claim with or without
modification and subject to such conditions, and to the

payment of such compensation, as the Authority shall
deem just.

(2) The Authority shall notify the permit holder and
the landholder of its decision.

(3) When the claim for an easement has been granted
the permit holder shall embody the particulars and other
matters pertaining to an easement granted under

2016

Consent of
landholder to
easement.

Application
where landholder
does not consent.

Determination of
application for
easement.


{113

2016 Water

subparagraph (1) of this paragraph in a deed or other
instrument suitable for registration, and shall tender the
deed or instrument, together with the amount of any award
of compensation made, to the landholder for execution.

(4) If the landholder fails within such time as may be
specified by the Authority to execute and deliver the deed
or instrument to the permit holder, the Authority may do so
on his or behalf, and thereupon the deed or instrument shall
have the same effect as if it had been executed by the

landholder.

(5) The Registrar of Titles shall register the deed or
instrument against the title affected, and two copies of such
deed or instrument, certified by the Registrar of Titles,
shall be sent by the permit holder to the Authority.

(6) Where an appeal has been lodged under
subparagraph (2) of this paragraph, no action shall be taken
under subparagraphs (3), (4) or (5) of this paragraph until
the appeal has been decided.

10.(1) An easement acquired under this Act shall
lapse —

(a) if the works authorised are not completed and the
water is not utilized within one year from the date
of acquiring the easement or within such further
period as the Authority may determine; or

(b) if, at any time, substantial use is not made of the
permit in accordance with the terms of the permit
for a continuous period of two years, or such
longer period as the Authority may, from time to
time, determine.

(2) Upon the lapse of an easement, the Authority shall

notify the Registrar of Titles, who shall, without charge,
cancel the registration of the easement against the title
affected.

11. (1) If any work constructed on the land of a person
other than the permit holder is out of repair or require
cleaning, the permit holder or his or her agent shall, if
required in writing by the landholder, repair or clean such
works within a reasonable time.

(2) If the permit holder fails to keep the works in a
state of repair the landholder may carry out the necessary

No. 43

Lapse of
easement

Permit holder to

keep works in
state of repair


1114
No. 43 Water

repairs or cleaning and may recover the cost from the
permit holder in any court of competent jurisdiction.

(3) The repairs or cleaning under this paragraph shall
not be unreasonably demanded, and, in the event of a
dispute between the parties, the Authority shall decide what
constitutes reasonable repairs or cleaning.

(4) A permit holder who allows any such works to fall
into disrepair or, in the opinion of the Authority to be in
such a state as to require cleaning, shall be liable for all
damage which may arise as a consequence.

12. (1) Any landholder on, over or through whose
lands an easement has been applied for or been granted
may, by application to the Authority either before or after
the construction of any works, apply for a permit to make
use of such works or the proposed works for the diversion,
abstraction, storage or use of whatever water he or she may
become entitled to divert, store or use under this Act.

(2) Before such a permit or authorisation is issued by
the Authority —

(a) the landholder shall prove, to the satisfaction of
the Authority, that the works of the permit holder
can be satisfactorily used for the purpose of the
landholder and without material detriment to the
permit holder; and

(b) a proportionate cost of the works shall be paid by
the landholder to the permit holder who
constructed or is constructing the works as may be
agreed on between the parties or, failing
agreement, as may be determined by the Tribunal.

(3) The permit holder may require the landholder to
enter into an agreement to continue to pay the
proportionate cost of maintaining the portion of the works
made use of, until either party has in writing surrendered
such right of user and, in the event of disagreement, the
matter shall be decided by the Tribunal.

(4) If such works require modification to enable the
landholder to enjoy their use, he or she shall, unless the
matter is otherwise agreed, pay to the permit holder—

(a) the entire cost of modifying them in the manner
approved by the Authority; and

2016

Land holder may
demand and
obtain use of
works.

savtncsttibetitata. ss satattammsan eemctemiieenetn pee a =


1115

2016 Water

(b) the cost of constructing and maintaining such
devices for apportioning the quantities of water as
the Authority may prescribe or approve.

(5) When it is proved to the satisfaction of the
Authority that due to altered conditions it is just and
equitable to revise the rate of payment,, the Authority shall
inform the parties concerned, and, failing agreement
between such parties on any such revision of the rate of
payment, the matter shall be referred to and decided by the
Tribunal.

13. When works have been excavated by a permit
holder on another person's land—

(a) any land used solely for the deposit of excavated
material from the works executed _ shall,
notwithstanding the payment of compensation and
except in the case of an easement for drainage or
reclamation, remain available to the landholder for
his or her own purposes; and

(b) the landholder may remove such _ excavated
material except that, no damage shall be done to
the works of the permit holder, nor shall the works
be obstructed or interfered with by such removal.

14. The deed or other instrument creating an easement
acquired under this Schedule shall be registered against the
title affected, and a plan, which shall be approved and
signed by, or by the Authority of, the Director of Surveys,
shall be attached to each document granting the easement.

15. (J) An easement acquired under this Act shall
determine if and when the permit for the exercise of rights
under which the easement has been acquired is cancelled as
provided for in this Act.

(2) On the determination of the relevant permit, any
works constructed by the permit holder on the lands of
another person shall, where the permit holder is the sole

permit holder, become the property of such other person
unless removed by the permit holder—

(a) voluntarily, within two years from the date of such
determination; or

(b) at the order of the Authority at the request of the
other person.

16. On the determination or variation of an easement,
the Authority shall notify the landholder over whose land
the easement was granted, and the Registrar of Titles and

No. 43

Landholder may
use land occupied
by excavated
material for own
purposes.

Easements to be
registered

Determination of
easement.

Registration of
determination or
variation of
easement.


1116
No. 43 Water

the landholder concerned may, at the expense of the person
in whose name the easement is registered, take such action

as is necessary to cause his or her title to be freed from the
easement or to record the variation, as the case may
require.

2016


a a
€

_—

a

1117

2016 Water
FOURTH SCHEDULE (s.56)

ABSTRACTION OF GROUND WATER

1. This Schedule shall apply to the extraction of
ground water.

2. (1) A person shall not construct or begin to
construct a borehole or well without having first given to
the Authority notice of his or her intention to do so.

(2) A person intending to construct a borehole or well
shall apply to the Authority for a permit and shall comply
with such requirements as may be imposed by the
Authority.

(3) Unless otherwise exempted, a person constructing
a well shall keep a record of the progress of the work which
shall include —

(a) measurements of the strata passed through and
specimens of such strata;

(b) measurements of the levels at which water was
struck; and

(c) measurements of the quantity of water obtained at
each level, the quantity finally obtained and the
rest level of the water.

(4) A person to whom subparagraph (2) applies shall
allow any person authorized by the Authority, at any
reasonable time —

(a) to have access to the well;

(b) to inspect the well and the material excavated from
it;

(c) to take specimens of such material and of water
abstracted from the well; and

(d) to inspect and take copies of or extracts from the
record required to be kept under this paragraph.

(5) Where the person constructing a well on any land
is not the occupier of the land, the obligation to allow any
person authorized by the Authority to exercise his or her
rights under this paragraph shall be the obligation of the
occupier of the land as well as of the person constructing
the well.

No. 43

Application of
this Schedule.

Notice of
Intention to
construct well


1118
No. 43 Water

(6) The Authority may by notice, whether
conditionally or subject to specified conditions, exempt any
person, in such circumstances as may be specified in the
notice, from the operation of subparagraphs (2) and (3).

3. A person constructing a well, if required to keep
records under this Part, shall, within one month of the
cessation of the construction send to the Authority —

(a) a complete copy of the record, together with the
specimens referred to in the record;

(b) particulars of any test made, before such cessation
of the construction, of the yield of water,
specifying —

(i) the rate of flow throughout the test and the
duration of the test; and

(ii) where practicable, the water levels during the
test and thereafter until the water level has
returned to its natural level;

(c) a statement of whether, in his opinion (as
determined by tasting) the water is suitable for
drinking or is highly mineralized, as the case may
be; and

(d) if required by the Authority, such water samples as
it may consider necessary.

4. (1) Where any well is being constructed within the
proximity of an existing well at a distance to be specified
by the Authority, the Authority may by notice require the
person constructing the well to apply tests, to be specified
in the notice, to the existing well and to supply to the
Authority the particulars of the results of such tests
including the rate of pumping and rest levels of water.

(2) Where the well to which the tests are to be applied
is situated on the property of a person other than the person
constructing the well and the person constructing the well
is unable for any reason to apply the test, the Authority
may, by notice, require the person upon whose property the
existing well is situate to apply the tests to be specified in
the notice to him or her, and to supply to the Authority the
particulars of the results of such tests.

2016

Submission ol
records

Tests on
neighbouring
wells


CN Ee Te ee Tee ee Oe ——eeGO7O77™—™—-

1119
2016 Water

5. Where any borehole contractor constructs a
borehole for the purposes of a well on land belonging to or
occupied by any other person, the borehole contractor shall
be deemed, for the purposes of this Act, to be the person
constructing the well.

6. (1) A person constructing a well or the owner or
occupier of the land on which construction takes place may
give notice to the Authority requesting that—

(a) any copy of, or extract from, the record required to
be kept under this Act; or

(b) any specimen taken or any other particulars
connected with the well, be treated confidentially

(2) In response to such the notice mentioned in
subparagraph (1), the Authority shall, if sufficient cause
has been shown, to not allow such copy, extract, specimen
or other particulars, except in so far as it contains or affords
information as to water resources or supplies, to be
published or shown to any person other than a member of
the Authority without the consent of the person giving the
notice.

(3) If at any time the Authority gives notice to the
person constructing a well or the owner or occupier of the
land on which the construction is being done, that, in its
opinion, his or her consent is unreasonably being withheld
the person may, within three months after the notice given
by the Authority, appeal to the Tribunal.

(4) If, at the expiration of the period in the notice, no
appeal has been made or, after hearing the appeal, the
Tribunal does not make an order restraining it from doing
so, the Authority may proceed as if such consent had been
given.

7. (1) A_ person shall not, except with the written
permission of the Authority —

(a) cause any ground water to run to waste from any
well, except for the purpose of testing the extent or
quality of the supply or cleaning, sterilizing,
examining or repairing the well;

(b) abstract from any well water in excess of his
reasonable requirements and which he cannot use
in a reasonable and beneficial manner;

No. 43

Contractor
deemed to be
constructor

Records may be
required to be
treated as
confidential.

Waste of ground
water.


1120
No. 43 Water

(c) conduct the water from any well through any
channel or conduit so that more than twenty per
cent of the water is lost between the point of
appropriation and the point of beneficial use
except that, where the water from any well is
conducted through channels or conduits together
with water from other sources, no person shall
permit the waste of more than twenty per cent of
the water in conducting the water from the point of
appropriation of the well water to the point of
beneficial use;

(d) use any water from any well for the purpose of
domestic use or the watering of stock, except
where such water is carried through pipes fitted
with float valves or other satisfactory means of
control, to prevent waste: Except that, where
ground water interferes or threatens to interfere
with the execution or operation of underground
works, whether water works or not, the Authority
may, in any particular case, by notice permit such
water to waste upon such conditions, regarding
quantity and method of disposal, as the notice may
specify.

8. (1) Any well which encounters salt water, in this
Part referred to as a "defective well", shall be securely
cased, plugged or sealed off by the owner of the well, so
that the salt water is confined to the strata in which it was
found, and such casing, plugging or sealing shall be done in
such a manner as effectively to prevent the salt water from
escaping from the strata in which it was found into any
other water-bearing strata or on to the surface of the ground
except where the Authority or the Regulatory Board has
approved the use of desalination systems to make such
water potable.

(2) This paragraph shall apply to wells constructed
before or after the commencement of this paragraph.

9. Any person who re-cases or removes the plugs or
seals from a defective well, or deposits, or causes or
knowingly permits the deposit of, any dirt, rubbish or other
material in any such well except with the written
permission of the Authority commits an offence.

2016

Defective wells.

Interference with
defective well


1121
2016 Water

10. (1) Before any defective well is re-cased or the
plugs or removed, the owner of the well, or his duly
authorized representative, shall file with the Authority an
application for permission to carry out such re-casing or the
removal of the plugs or seals.

(2) The application shall contain such information as
the Authority may require in relation to—

(a) the name and address of the owner of the well;
(b) its location, depth and size;

(c) the amount and location of casing or sealing in the
well;

(d) the distance below the surface of the ground to the
water level in the well;

(e) the strata penetrated;

(f) the distance from the surface of the ground to the
top of the salt water stratum and the thickness of
the salt water stratum; and

(g) any other matter specified by the Authority in
respect of the well.

(3) The application shall also state the methods
proposed for re-casing, re-plugging or resealing of the well.

11. The Authority, after consideration of any
application under paragraph 10, may call for additional
data, and may make such investigation as it considers
necessary, and if the well is found to contain salt water,
shall by order give instructions to the applicant,
specifying —

(a) the work that shall be done by the owner to place
it in a satisfactory condition; and

(b) the time that shall be allowed to complete the
work, and may inspect such work while it is in
progress.

12. The Authority may on its own initiative, or upon
information or complaint from any source, make an
examination of any well suspected of containing salt water,
and may by order issue instructions for curing any defects
in the well.

No. 43

Application to
carry out work on
a defective well.

Instruction to deal
with defective
well

Authority may
inspect the well


1122

No. 43 Water

13. (1) Upon completion of the works in pursuance of
any instructions issued under this Schedule —

(a) the contractor who carries out the work; or

(b) if the work is done without a contractor, the owner
of the well, shall file with the Authority a
statement sworn or affirmed specifying in detail
the manner in which such work was done.

(2) The statement shall be filed within thirty days after
the completion of the work.

14. (1) Upon receipt of a statement under paragraph
13, the Authority shall determine, either from the statement
or from inspection or test, whether the work has been
satisfactorily performed.

(2) If the Authority determines that the work has not
been satisfactorily performed, it shall by order issue
additional instructions specifying the additional work
required to place the well in a satisfactory condition, and
specifying the time for the completion of such additional
work.

(3) Upon the completion of such additional work, a
statement sworn or affirmed shall be filed with the
Authority as provided for in paragraph 13.

15. Every person abstracting ground water by means
of a well shall, in order to prevent contamination or
pollution of the water—

(a) effectively seal off to a sufficient depth any
contaminated or polluted surface or shallow water
in rock openings or soft broken ground;

(b) effectively seal the top of the well between the
surface casing and the internal pump column, and
the suction or discharge pipe;

(c) dispose of all return or waste water by means other
than by return to the well;

(d) extend the well casing to a point not less than
twenty centimetres above the elevation of the
finished pump house or pump pit floor;

(e) use either welded or screw type well joints on the
casing if made of metal;

2016

Sworn statement
to be submitted.

Additional work
on defective well

Contamination
and pollution of
ground water


1123

2016 Water

(f) dispose of effluents or drainage from any
household, stable factory, trade premises or other
premises in such a manner as will prevent any
such effluent or drainage from reaching such seal
or ground water; and

(g) carry out such other work as the Authority may by
order direct, from time to time, for the prevention
of contamination or pollution.

16. If—

(a) during the construction of a well, water 1s
encountered in an aquifer; and

(b) water from a water table or lower aquifer tends to
flow from the upper aquifer to the lower aquifer:
and

(c) in the opinion of the Authority this is likely to
prove detrimental to the ground water resources of
the area,

(d) the Authority may order what special measures
shall be taken by the owner of the well so that the
water from the higher aquifer cannot flow to the
lower aquifer.

17. Every artesian well and every sub-artesian well
shall be efficiently cased, capped or furnished with such
appliances as will readily and effectively arrest and prevent
the flow there from over the surface of the ground or
wasting from the well through the strata through which it
passes.

18. (1) A person who neglects or fails to comply with
any order or requirement given or imposed on him by or
under this Schedule shall be guilty of an offence and liable
on conviction to a penalty not exceeding one hundred
thousand shillings.

(2) Liability of any person under this paragraph is in
addition to any liability of the person under paragraph 18.

(3) A licensee shall pay compensation on just terms to

the owner or occupier, as the case may be, of any premises
within the prescribed area in respect of —

(a) any curtailment of or injury to his legal rights by
restrictions imposed by such Regulations; and

(b) any expenses incurred by him complying with a
requirement to construct and maintain any works,
or take other action, which would not. but for the

No. 43

Authority may
order special
measures to
safeguard ground
watel resources

Artesian wells to
be cased.

Offence and
penalty


1124
No. 43 Water

provisions of this Act, lawfully have been
required,

and any disagreement as to the amount of such

compensation shall be resolved and determined by the
Tribunal.

(4) Where any person has failed to comply with a
requirement notified to him and—

(a) he has not appealed against the requirement and
the time for appeal has expired; or

(b) his appeal has been dismissed or the requirement
has been affirmed or varied in consequence of his
appeal and he has failed to comply with the
requirement as so affirmed or varied, the licensee
may, without prejudice to his right to take
proceedings in respect of such failure, execute and
keep in good repair the works specified in the
requirement as originally made or as varied on
appeal and may in the Tribunal recover from the

owner or occupier concerned, as a debt, expenses
reasonably incurred by him in so doing.

(5) Expenses recoverable under subparagraph (4) do
not include expenses incurred in respect of the licensee
may, without prejudice to his right to take proceedings in
respect of such failure, execute and keep in good repair the
works specified in the requirement as originally made or as
varied on appeal and may in the Tribunal recover from the
Owner or occupier concerned, as a debt expenses
reasonably incurred by him in so doing.

(6) Expenses recoverable under subparagraph (4) do
not include expenses incurred in respect of —

(a) works the construction of which; or
(b) action which,

could not lawfully have been required otherwise than
upon payment of compensation by the licensee.

(7) Two or more licensees may combine for the
purpose of making and enforcing Regulations under this
section, and the provisions of this Act shall in any such
case have effect as if references therein to a references
were references to two or more such licensees acting
jointly.

(8) Section 34 of the Interpretation and General

Provisions Act shall not apply to any regulation made
under this section.

Cap. 2

2016

a ce i nea se aden