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 ffiIVED0t oct e0$

P.O. Box 10443-00100NAIROBI, KENYA

TEL: 21 "'!231 FAX: 27 1 2694

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

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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_PRELIMINARYSection

1-Short title and commencement.

2-lnterpretation.3-Purpose of the Act.

4-Principles.

PART II_OWNERSHIP, USE AND MANAGEMENTOF WATER RESOURCES

5 - Ownership of resources.

6-Regulation of the management and use of waterresources.

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 MANAGEMENTAND USE OF WATER RESOURCES

Water Resources Authority1 1-Establishment of the Authority.

12-Functions of the Authority.

13-Powers of the Authority.14-Management Board.

15-General duties and responsibilities of theManagement 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 determinationof quality objectives.

21 -National Monitoring and Information System.

22-Protection of catchment areas.

23-Conservation of ground water.

Basin areas24-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 usersassociations.

National Water Harvesting and Storage Authority

30-Establishment of the National Water Harvesting andStorage Authority.

31-Water Harvesting and Storage Board.

32-Powers and functions of the Water StorageAuthority.

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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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 toobserve terms and conditions.

50-Variation of permit following a hydrographicalsurvey.

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

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 developmentagencies.

66-Boards of the water works development agencies.

67 - Crrteria for water works development agencies.

68-Powers and functions of the water worksdevelopment agency.

69- Hand over of completed works.

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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 holdassets 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 publicconsultation.

88-Licence not to confer any rights of proprietorship tothe 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 notcommercially 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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99-Provision of water services outside the area ofsupply.

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 ofwater.

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 RESOLUTION1 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, WaterHarvesting and Storage Authority and WaterWorks Development Agencies.

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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 wateruser 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 orfunction.

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 waterresource.

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 stafffrom Water Resource Management Authority tothe Authority.

L49-Transfer of functions, assets, liability and stafffrom National Water Conservation and PipelineCorporation to National Water Harvesting andStorage Authority.

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

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

152-Transler o[ functions, assets.

from Water Services BoardsDevelopment Agencies.

liabilities and statfFund to The Water

liability and statfto Water Works

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

154-Public water service providers to continue tooperate.

155 - Transfer of functions, assets, liability and stafffrom 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 ANDPROCEDURE OF BOARDSAND COMMITTEES

SECOND SCHEDULE_CONDITIONS RELATINGTO CONSTRUCTION OFWORKS

THIRD SCHEDULE _EASEMENTS

FOURTH SCHEDULE_ABSTRACTION OFGROUND 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 otherconnected purposes

ENACTED by the Parliament of Kenya as follows-PART I_PRELIMINARY

1. This Act may be cited as the Water Act, 2016 andshall come into operation on such a date as the CabinetSecretary responsible for matters relating to water may, bynotice in the Gazette. appoint, and different dates may beappointed for the coming into operation of differentprovisions.

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

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

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

"basin area" means an area designated as such undersection 24;

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

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

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

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

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

"county government" means a county governmentprovided for under Chapter 11 of the ConstitutionKenya;

"county government executive" means the countyexecutive committee member responsible for mattersrelating to water;

"cross-county water services provider" means a water

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AS

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services provider providing water services to rnore thanone county;

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

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

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

"ground water" means the rvater of undergroundstreams, channels, artesian basins, reservoirs, lakes andother bodies of water in the ground, and includes water ininterstices below the water table;

"inspector" means a person appointed by the CabinetSecretary. the Authority, a water basin resourcescommittee, or the Regulatory Board , to exercise thepowers of an inspector under this Act:

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

"international waters" means the ocean water beyondterritorial waters:

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

"landholder", in relation to land, means the registeredowner of the land or the person in whom the land isotherwise vested by law, and includes-

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

(b) any person lawfully holding or occupying land inaccordance with the provisions of any lawempowering the allotment of land upon thepromise of title, subject to the fulfilment by theallottee of prescribed conditions; and

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

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"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 timebeing authorised to supply water;

"Management Board" means the Board of theAuthority 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 providedin peri-urban areas as shall be defined by the RegulatoryBoard from time to time;

"permit" means a permit for the time being in forceunder this Actl

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

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

(a) less fit for any beneficial purpose for which it is oris 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 applicationmade, or action proposed to be taken under this Act, hasthe meaning assigned to it in section 139:

"reasonable water use" means the use of waterwithout wastage;

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

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

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

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are or may be supplied from thc water resource;and

(b) to protect aquatic ecosystems in order to secureecologically sustainable development and nse ofthe water resource:

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

(a) the water quality stipulated for the reserve:

(b) the quantity. pattern. timing. water level andassurance of in-stream flow;

(c) the physical. chemical and biologicalcharacteristics of the water:

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

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

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

"riparian habitat" means the dynamic complex ofplant, animal and micro-organism communities and theirnon-living environment adjacent to and associated with awatercoursel

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

"Salaries and Remuneration Commission" means theSalaries and Remuneration Commission established underArticle 230 of the Constitution;

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

"sector wide approach" means coordinateddevelopment in the sector to achieve national goals,effectiveness of funds and ownership of governmentinstitutions including sector wide planning andcoordination, national monitoring and information andnational implementation concepts:

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

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treatlnent waste water ori-sinating from centralized anddecentralized systems but shall not include householdsanitation fac i I ities ;

"spring" means water emerging from beneath thesurface of the ground other than as a result of drilling orexcavation operations ;

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

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

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

"swamp" means any shallow depression in whichwater collects either intermittently or permanently andwhere there is a small depth of surface water or a shallowdepth of ground water and a slight range of fluctuationeither in the surface level of the water or of the groundwater level so as to permit the growth of aquaticvegetation;

"transboundary waters" means water resources sharedbetween Kenya and another State;

"urban water services" means services provided inurban areas as shall be defined by the Regulatory Boardfrom time to time:

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

(a) abstraction. obstruction, impoundment ordiversion of water forming part of a waterresource;

(b) the discharge of materials or substances into a

water resourcel or

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

"watercourse" means any natural channel ordepression 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 basinor other body of flowing or standing water, whether above

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or below the -qround, and includes sea water andtransboundary waters within the territorial jurisdiction ofKenya;

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

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

"water services" means any services of or incidentalto the supply or storage of water and includes the provisionof sewerage services;

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

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

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

"Water Storage Board" means the Board of theNational Water Harvesting and Storage Authorityestablished under section 31;

"Water Strategy" means the Integrated NationalWater Services Strategy formulated by the CabinetSecretary in section 64;

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

surface of the body of free water which fills allopenings in material that is sufficiently pervious topermit percolation; and

(b) in fractured impervious rocks and in solutionopenings, the surface at the contact between thewater body in the openings and the overlyingground air;

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

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

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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 othercontrivances as may be prcscribed by Regulations madeunder this Act.

3. The purpose of this Act is to provide for theregulation, management and development of waterresources and water and serverage services in line with theConstitution.

4. The Cabinet Secretary, the Authority, theRegulatory Board, county govemments and any personadministering or applying this Act shall be guided by theprinciples and values set out in Articles 10,43. 60 and232of the Constitution.

PART II_OWNERSHIP, USE AND MANAGEMENTOF WATER RESOURCES

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

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

7. Upon the commencement of this Act, noconveyance, 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 exceptas may be prescribed under this Act.

8. (1) A national public water works means a waterworks which has been designated by the Cabinet Secretary,by notice published in the Gozette, as a national publicwater 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'sshare of national revenue pursuant to theprovisions of the Public Finance Management Act,2012:

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

2016

Purpose of theAct.

Orvnershrp ofwater resources

Rcgulatron of themanagement anduse of waterre \ou rce \

Rights to waterresources

Natronal PubhcWater Works.

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(d) it is intended to serve a function rvhich. byagreement betrveen the national and countygovernment, has been transferred to the nationalgovernment.

(2) National public water works include-

(a) water storage;

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

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

(d) reservoirs for impounding surface run-off and forregulating stream flows to synchronize them withwater demand patterns which are of strategic ornational importance.

(3) A national public water works for domestic useshall, subject to the acquisition of a permit from theAuthority in case of inter basin water transfer, takeprecedence over all other water works for the use of wateror the drainage of land.

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

(5) The Cabinet Secretary may, after reasonable noticeto any landholder concerned, cause to be constructed andmaintained upon any land such works as the CabinetSecretary may consider necessary for the purposes of anynational public water works.

(6) Compensation on just terms shall be payable bythe Government to the owner of the land on which anysuch works are constructed, but in assessing the amount ofcompensation payable, the Cabinet Secretary shall take intoconsideration any benefit accruing to the land by theconstruction of the works and any adverse effect on theland caused by the works, as the case may be.

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

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

Admrnistration ofNational WaterResources.

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No.43 Wuter 2016

national government as stipulated in the Fourth Schedule tothe 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 aNational Water Resource Strategy.

(2) The object of the National Water ResourceStrategy shall be to provide the Government's plans andprograms for the protection, conservation, control andmanagement of water resources.

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

(a) existing water resources and their defined riparianareas;

(a) measures for the protection, conservation, controland management of water resources and approvedland use for the riparian area;

(b) minimum water reserve levels at national andcounty levels;

(c) institutional capacity for water research andtechnological development;

(d) functional responsibility for national and countygovernments in relation to water resourcesmanagement; and

(e) any other matters the Cabinet Secretary considersnecessary.

(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 submitto it a report on the state of national waterresources under the administration of that leadagency.

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

PART III_REGULATION OF THE MANAGEMENTAND USE OF WATER RESOURCES

Water Resources Authority11.(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 corporatename be capable of -

(a) suing and being sued;

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

(c) doing or performing all such other things or actsfor the proper discharge of its functions under thisAct and any other written law as may be lawfullydone 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 waterresources and flood mitigation;

(b) regulate the management and use of waterresources;

(c) enforce Regulations made under this Act;

(d) receive water permit applications for waterabstraction, water use and recharge and determine,issue, vary water permits; and enforce theconditions 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 CabinetSecretary for formulation of policy on nationalwater resource management, water storage andflood control strategies;

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

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

13. (1) The Authority shall have all the powersnecessary 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)

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Functlons of theAuthoflty.

Powers of theAuthority.

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No.43 Wutcr 2016

(a) source and receive tunding for the activities of theAuthority:

(b) collect, analyze and disseminate information onwater resourcesl

(c) monitor compliance by water users with theconditions of permits and the requirements of theAct;

(d) issue permits for inter-basin water transfer; and

(e) delegate regulatory functions to the basin waterresource committees provided for under section25.

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 mattersrelating to finance or his representative;

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

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

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

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

(c) the Chief Executive Officer.

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

(3) The chairperson and members of the ManagementBoard shall hold relevant professional qualifications andexperience and shall be appointed following an open andcompetitive recruitment process.

(4) The First Schedule has effect with respect to themembership 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'"':;:]'"'":tOf- Board.

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2016 Water

(a) securing continuing improvementspertormance;

(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 powersnecessary for the proper performance of the functions of theAuthority 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 suchmanner as best promotes the purpose for which theAuthority is established ;

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

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

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

(e) invest any funds of the Authority not immediatelyrequired for its purposes;

delegate any of its powers; and

undertake any activity necessaryfulfillment of any of the functionsAuthority.

17, (1) The Cabinet Secretary shall, on therecommendation of the Management Board, appoint aChief Executive Officer of the Authority on such terms andconditions as may be specified in the instrument ofappointment.

(2) A person is qualified for appointment as ChiefExecutive 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 experiencewith at least five years in a senior managementposition either in a public service or private sectororganization; and

ofNo.43

Powers of theManagementBoard.

Chief ExecutiveOfficer.

(0(e) for the

of the

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(d) meets the requirements of leadership and integrityset out in Chapter Six of the Constitution.

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

(4) The Chief Executive Officer is subject to thedirection of the Management Board and is responsible to itfor the-

(a) implementation of the decisions of theManagement Board;

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

(c) organization and management of the employees;and

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

(5) The Chief Executive Officer shall hold office for aterm of five years and is eligible for re-appointment for onefurther 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 accordancewith 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 theemployees of the Authority shall be determined by theCabinet Secretary responsible for public service on theadvice 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 intoaccount-

(a) trans-boundary considerations;

(b) strategic functions served by the water resource;

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(c) the use or potential for use of the water resourcefor inter-basin transfers:

(d) ecological functions of the water resource: and

(e) vulnerability to degradation or depletion and otherrelated 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 waterresource of the class to which it belongs; and

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

(4) All State organs shall when exercising anystatutory power or performing any statutory duty, take intoaccount and give effect to the resource quality objectivesdetermined under this section in respect of a waterresource.

21. (l) The Authority shall ensure that there is inplace a national monitoring and geo referenced informationsystem on water resources.

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

(3) Subject to Article 35 of the Constitution, amember of the public on payment of the prescribed feeshall-

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

(b) be supplied with a copy of any documentcontained in the information system which isaccessible to the public.

22. (l) Where the Authority is satisfied that in orderto conserve a vulnerable water resource, special measuresare necessary for the protection of a catchment area or apart thereof, it may by Order published in the Gazettedeclare such catchment area to be a protected area.

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

NationalMonitoring andInformationSystem.

Protection ofcatchment areas

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relation to the protected catchment area as the Authoritymay consider necessary for the protection of the area andits water resources.

23. (l) Where the Authority is satisfied that, in anyarea, special measures for the conservation of ground waterare necessary in the public interest for-

(a) the protection of public water or water suppliesused for industry, agriculture or other privatepurposes;

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

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

(2) The Authority may impose such requirements orprohibit such conduct or activities in relation to agroundwater conservation area as it may considernecessary for the conservation of the ground water.

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

Basin Areas

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

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

25. (l) The Cabinet Secretary shall by noticepublished in the Gazette establish a basin water resourcescommittee for each respective basin area provided forunder section 24.

(2) The Cabinet Secretary shall assign a name to eachbasin water resources committee established in accordancewith subsection (1).

(3) A basin water resources committee shall beresponsible for the management of the water resourceswithin a respective basin area.

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

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Conservation ofground water

Basrn areas

Establishment of a

basrn waterresourcescommittee.

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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 sevenmembers appointed by the Authority inconsultation with the Cabinet Secretary; and

(b) a representative of each county government whosearea falls within the basin appointed by theappointing authority after approval by the countyassembly.

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

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

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

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

(c) a representative of a public benefits organisationengaged in water resources managementprogrammes within the basin area concerned; and

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

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

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

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

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

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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 waterresources;

(b) the grant, adjustment, cancellation or variation ofany permitl

(c) protection of water resources and increasing theavailability of water;

(d) annual reporting to the users of its services and thepublic on water issues and their performancewithin the basin area;

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

(f1 review of the basin area water resourcesmanagement strategy;

(g) facilitation of the establishment and operations ofwater 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 areathrough water allocation plans; and

(k) any other matter related to the proper managementof 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 managementstrategy shall be formulated by a basin water resourcescommittee in consultation with the Authority and thecounty governments whose areas of jurisdiction lie withinthe basin area.

(3) A basin area water resources management strategyshall-

(a) be consistent with the national water resourcespolicy;

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2016 Wuter

(b) put in place measures to fulfil the water resourcequality objectives for each class of water resourcein the basin area;

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

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

(e) provide systems and guidelines to enable the usersof water resources within the basin area toparticipate in managing the water resources of thebasin area; and

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

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

29. (l)Water resource users associations may beestablished as associations of water resource users at thesub-basin level in accordance with Regulations prescribedby the Authority.

(2) A water resource users association shall be a

community based association for collaborativemanagement of water resources and resolution of conflictsconcerning the use of water resources.

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

(4) The basin water resources committees maycontract water resource users associations as agents toperform certain duties in water resource management.

National Water Harvesting and Storage Authority

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

(2) The Water Storage Authority established underthis section shall be a body corporate with perpetualsuccession and a common seal, capable of suing and beingsued in its own name and doing all things that a corporationmay lawfully do.

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Estabhshment andfunctions of waterresource usersassocratrons-

Establishment ofthe NationalWater Harvestingand StorageAuthorrty.

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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 Boardwhich shall consist of-

(a) a chairperson, who shall be appointed by thePresident;

(b) the Principal Secretary responsible for mattersrelating to water;

(c) the Principal Secretary responsible for mattersrelating to land;

(d) the Principal Secretary responsible for finance;

(e) five other members, who shall be appointed by theCabinet 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 tothe 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 worksfor water resources storage and flood control;

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

(c) collect and provide information for theformulation by the Cabinet Secretary of thenational water resources storage and flood controlstrategies;

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

(e) undertake on behalf of the national governmentstrategic water emergency interventions duringdrought; and

(0 advise the Cabinet Secretary on any matterconcerning national public water works for waterstorage and flood control.

(2) The Water Storage Authority may appoint agentsfor the operation, management, maintenance and safety ofany storage infrastructure that it has developed.

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2016 Wutcr No.43

(3) The Water Storage Authority shall have suchother powers and functions as may be conferred or imposedon 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 suchterms and conditions as the Cabinet Secretary for publicservice may determine on the advice of the Salaries andRemuneration Commission.

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

(a) is a citizen of Kenya;

(b) holds a degree from a university recognized inKenya;

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

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

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

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

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

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

(c) organization and management of the employees;and

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

(5) The Chief Executive Officer shall hold office for aterm of five years and is eligible for re-appointment for onefurther 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, inaccordance with the terms and conditions of service.

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Waler

35. (1) The Water Storage Authority may appoint suchother employees as it may consider necessary for theperformance of its functions under this Act.

(2) The Cabinet Secretary responsible for mattersrelating to public service shall determine the terms andconditions of service of the employees of the WaterStorage Authority on the advice of the Salaries andRemuneration Commission.

Regulation of Water Rights andWorks

36. A permit is required for any of the followingpurposes-

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

(b) the drainage of any swamp or other land;

(c) the discharge of a pollutant into any waterresource; and

(d) any other purpose, to be carried out in or inrelation to a water resource, which is prescribed byRegulations made under this Act to be a purposefor 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 resourcefor domestic purposes by any person havinglawful access to the water resource;

(b) for the abstraction of water in a spring which issituated wholly within the boundaries of the landowned by any one landholder and does notnaturally discharge into a watercourse abutting onor extending beyond the boundaries of that land;or

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

(2) Subsection (l) does not apply in relation to anyactivity mentioned in that subsection which is carried on inprescribed circumstances and the relevant law or regulationmade under this Act requires a permit for the carrying on ofthat activity in those circumstances.

2016

Employc-cs of thcWater StorageAuthonty,

Water permlt

Exemptrons

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t041

Waler

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

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

(a) prohibit any suchcircumstances: or

to the generality of subsection

use of water in prescribed

(b) require the consent or permission of the Authorityfor any such water use of a prescribed kind ordescription.

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 employsany such works in contravention of the conditionsof the permit, commits an offence.

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

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

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

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

(2) The provisions of the Third Schedule shall applyin respect of the acquisition of, and subsequent rightspertaining to or against, any such easement.

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

No.43

Unauthorrzedconstruction anduse of works

Easement forworks.

Procedure forobtarnrng apermit.

I 048

Wtttar 2016No.43

(2) An application under subsection (1) shall be madeby completing and lodging the form prescribed by theAuthority, 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 sixmonths of receiving an application which meets therequirements of the Authority.

(4) An application for a permit shall be the subject of No.8 or teee.

public consultation and, where applicable, ofenvironmental impact assessment in accordance with therequirements of the Environmental Management and Co-ordination Act,1999.

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

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

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

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

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

(b) such other conditions, not inconsistent with theconditions so prescribed, that the Authority mayimpose by endorsement on, or by an instrument inwriting annexed to the permit.

(2) The provisions of the Second Schedule shall beconditions on every permit which authorises theconstruction of works.

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

Condrtrons ofpermits.

1049

2016 ll'ater No.43

(a) require the imposition of prescribed conditions inprescribed circumstances;

(b) require the payment by the permit holder ofprescribed fees in respect of the exercise of rightsunder the permit: or

(c) provide that a contravention of any specifiedconditions of a permit under this Act, shallconstitute an offence and provide forcorresponding penalties.

(4) The imposition of a penalty under this Act shallnot prevent any person who has suffered loss, damage orinjury by reason of the contravention of this Act frompursuing any other remedy for the recovery of damages.

42. (1) The conditions on a permit may require thaton the issue of the permit and at prescribed intervalsthereafter, the permit holder shall pay charges to theAuthority for the use of water in accordance with the termsof the permit and the Regulations prescribed by theAuthority.

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

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

43. (1) In issuing a permit. and in fixing anyconditions to be imposed on a permit, the Authority shalltake 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 publicinterest;

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

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

Charges firr rvateruse

Consrderatrons forthe issuance ofpermrts.

No.43

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Water

(e) the classification and the resource qualityobjectives of the water resource;

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

(0 the strategic importance of the proposed water use;

(g) the quality of water in the water resource whichmay be required for the reserve; and

(h) the probable duration of the activity orundertaking for which a water use is to beauthorised.

(2) The use of water for domestic purposes shall takeprecedence over the use of water for any other purpose, andthe Authority may, in granting any permit, reserve suchpart of the quantity of water in a water resource as in itsopinion is required for domestic purposes.

(3) The nature and degree of water use authorizedbya permit shall be reasonable and beneficial in relation toother persons who use the same sources of supply or bodiesof water.

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

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

(2) The Authority upon the advice of the basin waterresources committee may, if in the opinion of the Authorityexceptional circumstances as provided for in subsection(l), warrant such action, grant a permit authorising with orwithout conditions, the use of water from a water resourceand the construction of the works required withoutsubjecting the application to public consultation.

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

(4) A permit granted in accordance with this sectionshall 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 forthe construction of permanent works.

45. (1) A permit shall specify, as far as practicable,the particular portion of any land, or the particularundertaking to which the permit is to be appurtenant, andon its grant the permit shall, subject to the provisions ofthis section, during the period for which it remains inforce-

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

No.43

Permit to be

linked to land orundertakrng

(b) pass with any demise, devise, alienation, transferor other disposition whether by operation of law orotherwise.

(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 thepermit, the applicable water cannot, in suchcircumstances, be reasonably beneficially used bythe permit holder on the particular portion of landto which the permit is appurtenant; and

(b) neither the public interest nor the rights of otherswould be adversely affected by a transfer inaccordance with this subsection, the Authoritymay, on application by the permit holder and byendorsement of the permit or other instrument inwriting, transfer the permit to another portion ofthe 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 hasbeen, or is about to be, subdivided, the Authority may granta new permit subject-

(a) to the condition that such easements, if any, as

may be required to be granted within a period oftwo years after sub-division of the land or withinsuch longer period as the Authority maydetermine; and

(b) any other conditions, and modifications, that theAuthority 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

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lVttter

or other cause, the use of water under a permit, or themethod or point of diversion or other manner in which thewater 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-basinwater transfers, should have priority.

the Authority may vary the permit so as to alter thedischarge or quality of rvater or any other aspect of rvateruse authorised by the permit, or to alter the method or pointof diversion or other specifications, terms or conditions ofthe permit.

(2) A permit shall not be cancelled or varied underthis section unless notice of the proposed cancellation orvariation has been served on the permit holder and thepermit holder has been afforded a reasonable opportunityto show cause to the Authority why the permit should notbe cancelled or varied.

(3) Subsection (2) does not apply where the variationis expressed to be made owing to drought or owing to a

crisis of a kind prescribed by Regulations made under thisAct.

47.(l) Where, in the opinion of the Authority, it isdesirable that water use in respect of one or more waterresources, including ground water, within a specificgeographic 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 publicinterest;

(d) facilitate efficient management of water resources,or

(e) protect water resource quality.

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

2016

Potver lo requrrepermrtapplrcatron\ or re

applrcatrons

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lVr t ler No.43

(2) On receipt of applications or re-applications, theAuthority shall prepare a proposed allocation schedulespecifying how water frorn the water resource in questionshall be allocated, taking into account the requirements ofthe reserve.

(3) The proposed allocation schedule shall besubjected to public consultation, afier which the basinwater resources committee shall prepare a preliminaryallocation schedule and shall, by notice published in theGazette advertise the times and places at which a copy ofthe schedule may be inspected.

(4) A person dissatisfied with the prelirninaryallocation schedule may appeal to the Water Tribunalwithin thirty days of the publication under subsection (3).

(5) A preliminary allocation schedule shall becorne afinal allocation schedule--

(a) if no appeal is lodged as provided for undersubsection (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 Guiettestating that the preliminary allocation schedule has becomefinal and advertise the times and places where a copy of theschedule rnay be inspected.

(7) The Authority shall, as soon as reasonablypracticable 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 theaccommodation of additional water users of a water source.

(2) A permit shall not be cancelled or varied underthis section unless notice of the proposed cancellation orvariation has been served on the permit holder and thepermit holder has been affbrded reasonable opportunity toshou, cause to the Authority rvhy the permit should not becancelled or varied.

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

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Water

agreed between the permit holder, the additional water useror users and the Authority in the case of inter basin watertransfer, and any disputes arising from such compensationshall be determined by the Water Tribunal.

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

(a) contravenes any condition of the permit, or

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

(2) A permit shall not be cancelled or varied underthis section unless notice of the proposed cancellation orvariation has been served on the permit holder and thepermit holder has been afforded a reasonable opportunityto show cause to the Authority as to why the permit shouldnot be cancelled or varied.

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

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

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

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

(c) permit the apportionment of the water authorisedby the permit to be taken or used, to beapportioned between two or more parts of the landto which the permit pertains;

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

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

2016

Cancellatron orvanatron of apermit for farlureto observe termsand condrttons

Variation ofpermit followrng a

hydrographicalsurvey.

Variation of apermit at therequest of thepermrt 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 notbe made without public consultation.

52. (l) A permit holder who ceases to utilise water inaccordance with the terms of the permit shall by notice tothe Authority abandon the whole of the permit or any partcapable 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 erectedin connection with the permit.

(3) A permit holder who neglects or fails to removethe works concerned commits an offence, and theAuthority may remove all or, any portion of the works, andmay recover the cost of their removal from the permitholder 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 theprovisions of any Regulations made under this Actwith respect to the terms and conditions of such apermit,

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

(2) A permit holder who fails to comply with thenotice 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 detailsof the permit holders, the respective terms and conditionsof each permit and the results of any monitoring andenforcement action taken by the Authority in respect toeach permit.

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

No.43

Abandonment ofpermlttedactlvltles

Surrender ofpermlts

Regrster ofpermrts.

I 056

No.43 \\'uter 2016

(3) The public may access the information containedin the register on payment of the fee prescribed by theAuthority.

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

(2) The Tribunal shall on appeal either vary. reverseor confirm the decision of a water basin resourcescommittee, and its decision shall be communicated to theparties concerned within fourteen days from the time thedecision is made.

Ground Water

56. The Fourth Schedule has effect with respect to theabstraction 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 permitor intending to enter onto the land of another person for thepurposes 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 affectedconstruction and operation or any worksundertaken pursuant to the permit;

(c) the names and addresses of the affectedlandholders: and

(b) upon payment of the prescribed fee,

obtain from the Authority permission to enter on to theland concerned and to carry out any survey or otherpreliminary investigation in connection with the location ofany such proposed works.

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

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

,\ppc.tls

Abstrachon ofground rvater

Entry by permitholder

by theto be

I0-)7

2(116 ll'Lttt'r N.. 43

(-l) A pernrit strall not bc issued Linder this sectionuntil the Authority has notifietl each laudholcler concerttedthat 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 atlvwater resource located lvithin or accessible from the l:rndconcerned. in order to take such measures as the Ar-rthoritt'may consider necessary for the purpose of-

(a) conserving or regulating the rvater resource. orpreservin-e it from pollution or protecting the bedover which it liesl

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

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

59. (l) An employee or agent of a licensee authorisedby the licensee for the purpose may, rvithout rvarrant, etrteron to any land and inspect any source of water supplyrvhich is located rvithin or accessible from the landconcerned. in order to take such measures as the licenseemay direct for the purpose of-

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

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

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

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

(a) ascertaining whether there has been a

contravention of any such Regulations;

(b) in the case of any Regulations in respect of tariffsand the payment of those tariffs, exercising anyright conferred on the licensee to cut off suppliesfor non-payment, or

Entr,r b1 thr,\uth()ntV

Entr-1 by hccnsee

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

(i) ascertaining whether or not circumstances existwhich would justify the licensee's imposing arequirement to execute works or take otheraction to prevent degradation; or

(ii) exercising any right conferred on the licenseeto execute and maintain works or otherappropriate action.

60.(1) In this Part, "authorised person" means a Mannerorentry

person entering onto any land or premises pursuant to aright or permission conferred under this Act.

(2) An authorised person shall not enter on any landor premises without first giving a reasonable notice inverbal or written form to the landholder or otherresponsible person in charge of the land or premises, andany 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 ofthis Act or of any rule or order made under thisAct has been or is about to be contravened;

(b) he or she is unable to give notice within areasonable time having regard to all thecircumstances; or

(c) he or she has given reasonable grounds for notgiving notice.

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

(5) It shall be the duty of any person when exercisingany powers under this section to do so with reasonable careand in such a manner as to cause as little damage aspossible 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-

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

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

(b) produce for inspection any licence, map plan,specification, drawing or other document or recordrelating to-(i) the permit or licence;

(ii) any works constructed under the permit orlicence; or

(iii) the flow of water in any such works or in anywater resource affected by them.

(2) A person who contravenes this section commitsan offence.

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

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

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

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

(2) When the true identity, place of abode or otherparticulars of the person referred to in subsection (1) havebeen ascertained, the person concerned shall be releasedupon the execution of a bond, if so required, with orwithout sureties, so as to appear before a magistrate.

(3) If the person's true name and place of abode andother particulars are not ascertained within twenty hoursfrom the time of the arrest, or if he or she fails to executethe bond or, to furnish the applicable sureties, such personshall be presented before a magistrate having jurisdictionin the area.

PART IV_WATER SERVICES

General

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

Requlrement tostate name andaddress.

Right to clean andsafe water-

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

64. (l ) The Cabinet Secretary shall. within one year ofthe cornmencement of this Act and every five yearsthereafter. follow'ing public participation. formulate a

Water Services Strategy.

(2) The object of the Water Strategy shall be toprovide the Government's plans and prograrns fol theprogressive realization of the right of every person inKenya to water.

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

(a) existing water services:

(b) the number and location of persons who are notprovided lvith a basic water supply and basicsewerirge services:

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

(d) a resource mobilization strategy fbr theinrplementation 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 rvithcounty governments. provide a national water sectorinvestment and financing plan aggregated from the countygovernment plans which shall include, among other details,the time frames for the plans and an investment programmebased on the investment plans.

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

Water Works Development Agencies

65. (l) The Cabinet Secretary rnay. by notice in theGa:.ettc, establish one or more waterworks developmentagencies and define the geographical area ofjurisdiction ofeach such agency.

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

2016

Natrorlrl WirterScrvrccs Stratesr

Estabhshment ofu ater u'orkstlevelopmentagenc les

2016

10(r I

\llttt

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

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

(a) a chairperson, who shall be appointed by theCabinet Secretary frorn a county within the basinareal

(b) fbur other members who shall be appoinLed by theCabinet Secretary from counties within the basinarea; and

(c) the Chief Executive Otficer.

(2) The First Schedule has effect with respect to themembership and procedure of the \\,ater rvorksdevelopment agencies.

67.The Cabinet Secretary shall in consultation withstakeholders develop the criteria for establishnrent of thewater works development agencies.

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

(a) undertake the development, maintenance andmanagement of the national public water workswithin its area of jurisdiction;

(b) operate the rvaterworks and provide water servicesas a water service provider, until such a time as

responsibility for the operation and managementof the waterrvorks are handed over to a countygovernment, joint cornmittee, authority of countygovernments or water services provider withinrvhose area of jurisdiction or supply thewaterworks is located;

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

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

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Boards of therviite r u orksdr-\ clopmelltag!-nL IC\

Crrterrir ftrr rvaterrvorksder clopnrentagcnc rc\

Porvcr s andfunctrons of the\! atcr \\'ork\de'r'cloprnentag!-nc)

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

69. (1) As soon as possible, following thecommissioning of the waterworks, the waterworksdevelopment agency shall enter into an agreement with thecounty government, the joint committee or authority of thecounty governments within whose area of jurisdiction thewater works is located, jointly with the water serviceprovider within whose area of supply the water works arelocated for the use by the joint committee, authority orwater services provider, as the case may be, of the waterworks to provide water services.

(2) The agreement shall make provision for theassumption by the county government, the joint committee,authority or water services provider of the responsibilityfor the repayment of any loans or liabilities of thewaterworks and until full repayment of the loans anddischarge of any outstanding liabilities, ownership of thewaterworks shall remain in the waterworks developmentagency.

(3) In the event that the county government, the jointcommittee, the authority or water services provider defaultsin the repayment of any outstanding loans arising from thedevelopment, rehabilitation or maintenance of the works,the waterworks development agency may petition theRegulatory Board to declare a default and order the transferof the water services provider's functions to thewaterworks development agency, to exercise suchfunctions until full repayment of the loan.

The Water Services Regulatory Board

70. (1) There is established the Water ServicesRegulatory Board whose principal object is to protect theinterests and rights of consumers in the provision of waterservices.

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

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

(a) a chairperson appointed by the President,

(b) four other members appointed by the CabinetSecretary; and

(c) the Chief Executive Officer.

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

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

(a) determine and prescribe national standards for theprovision of water services and asset developmentfor water services providers;

(b) evaluate and recommend water and seweragetariffs to the county water services providers andapprove the imposition of such tariffs in line withconsumer protection standards;

(c) set licence conditions and accredit water servicesproviders;

(d) monitor and regulate licensees and enforce licenceconditions;

(e) develop a model memorandum and articles ofassociation to be used by all water companiesapplying to be licensed by the Regulatory Boardto operate as water services providers;

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

(g) advise the Cabinet Secretary on the nature, extentand conditions of financial support to be accordedto water services providers for providing waterservices;

(h) monitor progress in the implementation of theWater Strategy and make appropriaterecommendations;

No.43Regulatory Board

Powers andfunctions of theRegulatory Board

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

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

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

(l) inspect water works irnci rvater services to ensurethat such 'nt,orks arrcl sen'ices mect the prescribedstandards;

(rn) report annually to the public ou issues of watersupply and sewerage services and the perfonnanceof relevant sectors and publish the reports in theGu:ette.

(n) make Regulations on water services and assetdevelopment which shall include business,investment and financing plans in order to ensureef f icient and effective water services andprogressive realization of the right to waterservices;

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

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

(2) The Regulatory Board shall have such powers andfunctions as may be conferred on it by this or any otherAct, or as may be reasonably incidental to the exercise orperfonnance of any power or function so conferred.

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

(2) The Chief Executive Officer shall be the principalofficer of the Regulatory Board and, subject to thedirections of the Regulatory Board shall be responsible formanagement of the Regulatory Board.

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

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Water

and performance of its powers and functions, upon suchterms and conditions as the Cabinet Secretary responsiblefor public service may determine upon consideration ofadvice 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 applicationunder this section to the Regulatory Board and submits acopy of the application to the county government withinwhose area of jurisdiction it intends to provide waterservices.

(2) Prior to determination of the application, theRegulatory Board shall publicise the application and shalltake into consideration the views of stakeholders includingthe county government, within whose area of jurisdictionthe applicant intends to provide water services.

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

75. (1) The Regulatory Board shall maintain theregister of all licensed water services providerscontaining-

(a) their names and addresses;

(b) in the case of a registered association, or publicbenefit organization, the nature of the associationor organization and the particulars of itsregistration;

(c) the nature of services in respect of which the waterservices 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 apublic document accessible for inspection at no charge andshall be publicized, placed or posted in accessible formatsat such places as the Regulatory Board shall determine.

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

(4) The Regulatory Board shallguidelines to regulate the conductservices providers.

develop and publishof licensed water

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

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

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

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

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

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

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

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

(4) A water services provider whose licence issuspended or revoked may apply to the Regulatory Boardto review its decision within fourteen days of receipt of thenotice of revocation.

77. (l) A county government shall establish waterservices providers.

(2)In establishing a water services provider, a countygovernment shall comply with the standards of commercialviability set out by the Regulatory Board.

(3) A water services provider established under thissection may be a public limited liability companyestablished under the Companies Act, 2015 or other bodyproviding water services as may be approved by theRegulatory Board.

(4) A company intending to be licensed as a waterservice provider shall submit to the Regulatory Board itsmemorandum and articles of association that conform tothe guidelines developed and approved by the RegulatoryBoard.

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Establishment ofwater servlceproviders

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(5) The Regulatory Board shall make Regulations onthe standard of rvater to be supplied by rvater serviceproviders licensed under this section.

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

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

(b) the development of county assets for water serviceprovision.

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

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

(2) All members nominated to the water servicesprovider's board of directors shall possess qualificationswhich meet the standards set by the Regulatory Board.

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

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

(b) hold office in a political party; or

(c) be a serving member of Parliament.

81. A water services provider may with the approvalof the relevant licensing authority extend water services torural or developing areas.

82. (1) A party aggrieved by the decision of a waterservices provider may appeal against the decision to theRegulatory Board in the prescribed manner within fourteendays 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

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Responsrbrhtres ofthe water servlcesprov rder.

Board of a rvaterservrces provider

No l7 of20l5.

Member of theBoard not to holdpubhc office.

Extensron ofservlces to rural ordeveloping areas.

Appeals to theRegulatory 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 supportingdocuments as the Board may require.

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

83. A county or a cross-county owned water serviceprovider established as a public institution and operatingand providing rvater services shall hold the county ornational public water services assets on behalf of thepublic.

84. (1) The Cabinet Secretary shall make Regulationsfor the transfer of national public assets to the county waterservices providers in accordance with any larv regulatingthe handing over and disposal of public assets.

(2) The Regulations shall include arrangements t<r

protect public assets in case of private sector participationsuch as the separation of operation from asset holding anddevelopment.

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

(3) Nothing in this section prohibits the provisionwater services -

(a) by a person to their employees;

(b) on the premises of an institution including ahospital, factory, school, hotel, research station orother comparable institution. in cases where thesource of supply of the water is lawfully under thecontrol of the institution or where the water issupplied to such institution in bulk by a licensee;or

(c) in circumstances which are prescribed byRegulations made by the Regulatory Board to beexempt 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 RegulatoryBoard.

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

2016

County orvnedwater servtceprovider to holdassets for thepubhc

Cabrnet Secretaryto makeRegulatrorrs

Procedure andrequrrements forobtaining a

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(a) evidence that the applicant's board of directorscornplies with the standards set by the RegulatoryBoard under section 79 (2):

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

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

(d) the applicant's business plans for the provision ofefficient. affordable and sustainable waterservices;

(e) details of planned financial and infrastructuralimprovements;

(f) a proposed tariff structure; and

(g) any other information required by the RegulatoryBoard.

(3) The application shall be made by completing andlodging the prescribed form together with the supportingdocumentation and the prescribed fee.

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

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

(a) the applicant has the requisite technical andfinancial competence to provide the services towhich the licence relates;

(b) the applicant has demonstrated that the waterservices to be provided will be commerciallyviable;

(c) the applicant has presented a sound plan for theprovision of an efficient, affordable andsustainable water service;

(d) the applicant has proposed satisfactoryperformance targets and planned improvementsand an acceptable tariff structure;

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

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to be performed, will provide the water servicesauthorised by the licence on a commercial basisand in accordance with sound business principles;

(f) where water services authorised by the licence are

to be provided by a water services provider whichconducts some other business or performs otherfunctions not authorised by the licence, the supplyof those services will be undertaken, managed andaccounted for as a separate business enterprise;and

(g) the applicant has met any other requirementswhich the Regulatory Board may considernecessary for the efficient provision of the servicesto be provided under the licence.

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

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

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

(4) The Regulatory Board shall notify the applicantand the objector of its decision and, in the event of therejection of an application or objection, of the reasons forthe decision.

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

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

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

2016

Applicatron for a

hcence sub..;ect topubhcconsultatron.

Licence not toconfer any rightsof proprretorshipto the lrcensee.

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(2) The Regulatory Board may require the applicantto deposit with it a guarantee or other acceptable securityfor the purpose of securing payment by the applicant of anyexpenses recoverable from the licensee, for or towards thecosts incurred in discharging the functions of the licenseein cases of default.

(3) As a condition for the licence, a licensee shall,within twelve months of receipt of the licence, or suchother longer period as the Regulatory Board maydetermine, formulate and present to the Regulatory Board,a development plan for extending services to persons notreceiving water services within such licensee's area ofoperation, a time frame for the implementation of the planand 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 prescribedintervals thereafter, such licence fees as the RegulatoryBoard may determine.

(2) The fee shall be determined by reference to aschedule of fees published in the Gazette from time to timeby 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 theconditions prescribed, as the Regulatory Boardmay impose in the licence or by endorsement in aninstrument 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 prescribedmanner, a contingency fund for the purpose ofrenewal, repair, enlargement or improvement ofany plant, equipment, facilities or works used forthe purposes of the licence or for meeting anyother prescribed contingency.

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

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Lrcence fees

Condrtrons ofIrcence. '

Duty to providewater servlces

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(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, orrequest for its compulsory acquisition inaccordance with the applicable laws.

92.Every water services provider shall establish amechanism for handling consumer complaints which meetsthe standards set by the Regulatory Board.

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

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

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

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

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

33. Every county government shall put in placemeasures for the provision of water services to rural areaswhich are considered not to be commercially viable for theprovision of water services.

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

2016

Consumercomplaints.

Pubhc PnvatePartnerships.

Special provisronswrth respect torural areas notcommercrallyvrable.

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community associatiolls, public benefits organizations or a

private person under a contract with the countygovernment.

(4) In order to implement its obligations under thissection, a county government shall formulate and submitannually to the Regulatory Board and to the CabinetSecretary, a five year development plan incorporating aninvestment and financing plan for the provision of waterservices in the rural areas referred to subsection (1) withinits area of jurisdiction.

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

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

(2) Except as otherwise provided by Regulations madeunder this Act, no such variation shall be made withoutprior public consultation.

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

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

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

(a) permit the joint provision, by two or morelicensees, of water services on such terms as itmay approve; or

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

(2) Where it appears necessary to the RegulatoryBoard, for the purpose of securing a commercially viablewater service, it may, by notice in the Gaiette, order a jointprovision of water services or a transfer of water serviceand vary the relevant licenses accordingly.

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

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Varratron of termsor condrtrons of aIrcence

Areas of waterservlce.

Clustering ofareas of rvaterservrce provlslon

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the Regulatory Board considers necessary for the purposeof carrying out the order.

(4) The Cabinet Secretary in consultation with theRegulatory Board shall make rules, setting outcircumstances under which the provision of joint waterservices may be ordered.

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

98. (1) The Regulatory Board may vary the areas ofwater service provision prescribed by one or morelicences-

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

(b) without the consent, or against the objections ofany such other licensee, if the Regulatory Boardis satisfied that the other licensee is unable to meetthe demands for water in its area of jurisdiction oris otherwise unable to provide a commerciallyviable service.

(2) Where it appears to the Regulatory Board that it isnecessary to vary the area of water service of a licensee andthe Regulatory Board is satisfied that such a variationcannot be otherwise secured it may, by order published inthe Gazette, effect the variation accordingly.

(3) An order made under this section may make suchincidental, consequential and supplementary provisions asthe Regulatory Board may consider necessary for thepurpose of carrying out the order.

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

99. (1) Subject to any Regulations made under thisAct, the Regulatory Board may direct a licensee to providewater services, outside its area of water servicesjurisdiction.

(2) Where under this section a licensee, in this sectioncalled the "supplying licensee", is providing water servicesto premises outside its area of supply, any other licenseewithin whose area of supply those premises are situatedmay, in the absence of any agreement to the contrary, give

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Provrsron of waterservrce outsrde thearea of supply.

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not less than three months' notice to the supplying licenseethat the licensee is able and intends to provide waterservices to the premises.

(3) A notice given under subsection (2) shall not bevalid unless it relates to all the premises to which the waterservices are being provided by the supplying licensee inaccordance with this section.

(4) If on the expiration of the notice under subsection(2) the licensee giving the notice commences to supplywater to the premises covered by the notice, the supplyinglicensee shall, except for the purpose of recovering waterrates or other charges or expenses lawfully recoverable bythe supplying licensee, and of removing any pipes, plant orapparatus belonging to the supplying licensee, cease tohave any rights or duties in respect of providing waterservices to the premises concerned.

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

(6) The licensee giving notice shall pay to thesupplying licensee-

(a) any expenses reasonably incurred by the supplyinglicensee for the purpose of providing waterservices to the premises referred to in the notice;

(b) such sum in respect of any pipes, plant orapparatus vested in the licensee giving the noticeas may be agreed or, in default of agreement, as

may be determined by the Regulatory Board.

(7) While the supplying licensee is in accordancewith this section authorized to provide water servicesoutside its area of service, any Regulations relating to itswater service shall have effect as if the area to which thoseservices 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 theRegulatory Board.

(2) A water service provider may enter into anagreement with any other licensee or water servicesprovider on terms and conditions to be approved by theRegulatory Board-

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No.43 Wdrcr

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

(c) where the supply is to be given by a rvaterservices provider, either within or outside the areaof 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 givethe supply of water in bulk to another licenseeor water service provider;

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

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

the Regulatory Board may, by order served on theparties, require the licensees concerned to give and take thesupply of water in bulk for such a period and on such termsas the Regulatory Board may specify.

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

(a) has failed to discharge any duty imposed upon thelicensee 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 anyperson which it is supplying; or

(c) having been notified by the Regulatory Board, as

the case may be, to take such steps as atereasonably practicable in order to remedy any suchfailure as is mentioned in paragraph (a) or (b), andhas failed to do so,

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

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

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Default by ahcensee.

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on the water services provider for the purpose ofremedying the default.

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

(4) A licensee declared to be in default by order underthis section and who fails to comply with the order withinthe 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 persistentlycontravenes the conditions of a licence or the requirementsof this Act.

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

(3) The Regulatory Boardregulatory regime-

may under a special

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

(b) remove privileges from the licence; or

(c) revoke the licence and appoint a special managerof the water services for a period of not more thansix months or until the respective countygovernment makes a new appointment whicheveris the earlier.

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

103.(1) If the Regulatory Board is satisfied that,notwithstanding the imposition of measures under a specialregulatory regime, the default has not been remedied and isnot likely to be remedied by the licensee, it shall subject tothe Public Finance Management Act, 2Ol2 rn consultationwith the concerned county government executive, by noticein the Gazette, order the transfer of water services toanother licensee.

Transfer offunctions ofIrcensee

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(2) The order of transfer shall make such provisionsas appear to the Regulatory Board to be desirable ornecessary with respect to any property or assets being usedby the defaulting licensee for the purposes of providing thewater services.

(3) The transfer of a licence shall be a temporarymeasure not exceeding twelve months pending remedialaction by a county government executive.

104. (1) A licensee may enter into an agreement withany person with respect to the execution and maintenance,by any party to the agreement, of such works as thelicensee considers necessary or as the conditions of thelicence may require for the purpose of protecting thecatchment areas, drainage of land, carrying out soilconservation measures, the control of vegetation oreffectively collecting, conveying or preserving the purityand quantity of water which the licensee is for the timebeing authorised to take.

(2) An agreement under this section may beregistered against any proprietor of the applicable land, andshall be binding upon and enforceable against such personor successor in title.

105. (1) A licensee who is of the opinion that there isa serious deficiency or threat of a deficiency of wateravailable for distribution, may with the approval of theRegulatory Board, for such period as the licensee considersnecessary, prohibit or restrict with respect to the whole orany part of such licensee's limits of supply, the use for anyspecified 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 theaffected area or by such other means as the RegulatoryBoard may approve, of the proposed prohibition orrestriction and of the date when such prohibition orrestriction shall come into force.

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

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

2016

Agreements as toprotectlon ofsources of water,etc.

Porver of lrcenseeto prohrbit orrestrrct use ofwater.

Duty to enforceRegulations onwater serylces

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Water

county government executive who fails to do so shall beliable to an order by the Regulatory Board to take suchaction to enforce such Regulations as shall be specified inthe order.

(2) Where a county government executive considersthat the operation of any such Regulations would beunreasonable in any particular case, a county governmentmay, in consultation with the Regulatory Board, by noticeto any affected party, reduce or dispense with therequirements 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 necessaryeasement or right, construct and maintain drains, sewersand other works for intercepting, treating or disposing ofany foul water arising or flowing upon such land orotherwise for preventing water belonging to the licensee, orwhich it is for the time being authorised to take, from beingpolluted.

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

(3) Any licensee proposing to construct any drain,sewer or other works may, with the consent of the stateorgan concerned and subject to such conditions as the stateorgan may impose, carry the drain, sewer or other workunder, across or along any road or road reserve or publicplace, whether within or outside the area of water serviceof the licensee.

(4) A consent required under subsection (2) shall notbe unreasonably withheld, nor shall any unreasonablecondition be attached to such consent, and any questionarising from the operation of this subsection shall bedecided by consultation between the state organsconcerned.

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

(a) pollution of the environment;

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Control of tradeeffluent

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(b) harm to human health;

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Water

(c) damage to the sewerage system: or

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

(2) A person shall not discharge any trade effluentfrom any trade premises into the sewers of a licenseewithout the consent of the licensee.

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

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

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

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

(d) any other information required by the licensee.

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

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

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

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

109. (l) The Regulatory Board may impose asewerage services levy on all water services within the areaof a licensee, to cover a reasonable part of the cost ofdisposing 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 setaside by the licensee for use in the expansion of thesewerage system within the area of service provision of thelicensee.

2016

Sewerage serviceslevy.

2016

l0r3 t

ll'r t ter

f 10. ( l) A licensee. or an applicant for a license. whorequires the compulsory acquisition of land for any of itspurposes. may apply to a county governor, ol wherenecessary to the Cabinet Secretary. who, on being satisfiedthat such compulsory acquisition is desirable, may take thesteps necessary to secure the compulsory acquisition of theland in accordance rvith the applicable larvs.

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

(a) of a source of supply which belongs to suchlicensee or will belong to the licensee followingthe acquisitionl

(b) against pollution or other degradation. whether onthe surface or underground of any water resourcewithin such licensee's area of jurisdiction.

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

111. (1) The Regulatory Board shall establish anational monitoring and georeferenced information systemon water services.

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

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

(4) Regulations made under this Act may specifyrequirements and the nature of information for the keepingof records and the furnishing of information to theRegulatory Board.

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

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

No.43Conrpulsoryacqtil\rtron ofIand

Regulatory Boardto estabhshInfbrmatronS1'stem

Annual repoft

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

PART V_WATER SECTOR TRUST FUND

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

(2) The Fund is a body corporate with perpetualsuccession and a common seal and shall have power, in itscorporate name, to sue and to be sued and, in the exerciseand performance of its powers and functions, to do andpermit all such things as may lawfully be done or permittedby a body corporate in furtherance of its objects.

114. The object of the Fund is to provide conditionaland unconditional grants to counties, in addition to theEqualisation Fund and to assist in financing thedevelopment and management of water services inmarginalized areas or any area which is considered by theBoard of Trustees to be underserved including-

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

(b) development of water services in rural areasconsidered not to be commercially viable forprovision of water services by licensees;

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

(d) research activities in the area of water resourcesmanagement and water services, sewerage andsanitation.

115. (1) The powers and functions of the Fund shallbe exercised and performed under the direction of a Boardof Trustees from time to time appointed and holding officeunder 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 accordancewith the First Schedule.

(3) The First Schedule shall have effect with respectto the membership and procedure of the Board of Trusteesof the Fund.

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

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Establshment ofthe Water SectorTrust Fund.

Objects of theFund.

Board of Trusteesof the Fund.

Functrons of theBoard of Trustees.

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(a) manage the resources of the Fund;

(b) mobilize additional resources for the Fund;

(c) formulate and implement principles, Regulationsand procedures in consultation with the nationalgovernment and county governments for financingprojects, including efficiency and effectiveness offunds;

(d) implement measures to ensure the efficient andequitable sharing of the resources of the Fundgiving 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 thedegradation or depletion of water resources;

(e) monitor the implementation of projects;

(f) maintain and make public available informationon the projects financed and impact of suchprojects;

(g) receive grants for onward lending to waterservices providers, counties, and registeredcommunity schemes towards water services andwater resources management projects for theunderserved areas and urban poor;

(h) establish and manage subsidiary funds as may benecessary for sustainable financing towards waterservices and water resource management; and

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

(2) The provisions of subsection (1) (g) shall onlyapply to water service providers, counties and registeredcommunity schemes, that can afford the repayment of thefunds advanced, and profits thereof used to finance waterservices and water resources management projects for theunderserved areas and urban poor.

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

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No.43 \\/tttL'r 2016

eqLrity and ma)' tiom time to tirne follorvin-q publicconsultation review the criteria.

ll7.(1) The monies of the Fund shall consist of Nlo,tesorthe

m<lnies- Fund

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

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

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

(d) received by the Fund from donations, grants. andbequests 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 Regulationsfollowing public consultation prescribe a levy to be paid byconsumers of piped water supplied by licensed waterservice providers, the proceeds of which shall be paid intothe 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 suchterms and conditions of service as the Cabinet Secretaryresponsible for matters relating to public service on theadvice of the Salaries and Remuneration RegulatoryAuthority may determine.

(2) The Chief Executive Officer shall be theaccounting officer of the Fund and, subject to the directionsof the Fund, shall be responsible for the management of theaffairs of the Fund.

(3) The Fund may appoint such officers and otherstaff as may be necessary for the exercise and performanceof its functions, upon such terms and conditions as theCabinet Secretary responsible for matters relating to publicservice on the advice of the Salaries and RemunerationCommission 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

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2016 Wuter

terms and conditions as may be determined by the JudicialService Commission.

120. The staff of the Tribunal shall be appointed,removed from office or otherwise disciplined by theJudicial Service Commission in accordance with Articlell2 (l) (c) of the Constitution.

l2l. (I) The Tribunal shall exercise the powers andfunctions set out in this Act and in particular shall hear anddetermine appeals at the instance of any person orinstitution directly affected by the decision or order of theCabinet Secretary, the Authority and Regulatory Board orof any person acting under the authority of the CabinetSecretary, 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 determineany dispute concerning water resources or water serviceswhere there is a business contract, unless the parties haveotherwise agreed to an alternative dispute resolutionmechanism.

l22.The Tribunal shall make Rules governing itsprocedures.

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

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

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

PART VII _FINANCIAL PROVISIONS

l26.The funds of the Authority, Regulatory Board,Water Storage Authority, Water Sector Trust Fund, andwater works development agencies shall respectivelyconsist of-

(a) monies allocated by Parliament for the purposes of

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Staff of the WaterTnbunal.

Jurisdichon of theTrrbunal.

Proceedings of theTnbunal.

Determinatron ofappeals anddrsputes.

Appeals to theLand andEnvrronmentCourt

Decrsions bindrngrf no appeal wrthrnthrrty days

Funds of theAuthority,Regulatory Board,Water Harvestrngand StorageAuthonty andWater Works

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No.43 Woter

the each body corporate established under thisAct;

(b) such monies or assets as may accrue to each bodycorporate in the course of the exercise of itspowers or in the performance of its functionsunder this Act; and

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

l27.The financial year of each body corporateestablished under this Act shall be the period of twelvemonths beginning the first July and ending on the thirtiethJune in each year.

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

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

(a) the payment of the salaries, allowances and othercharges in respect of the staff of the bodycorporate;

(b) the payment of pensions, gratuities and othercharges and in respect of benefits which arepayable out of the funds of the body corporate;

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

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

(e) the creation of such funds to meet future orcontingent liabilities in respect of benefits,insurance or replacement of buildings orinstallations, equipment and in respect of suchother matters as the body corporates may considernecessary.

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

2016

Der elopnrentAgencres

Frnancral year

Annual estlmates.

Accounts andaudrt.

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Water

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

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

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

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

130. The Authority, the Regulatory Board and theWater Storage Authority may, subject to the Public FinanceManagement AcL2012 retain in a fund managed by therespective bodies, the revenue from permit charges, wateruser fees, regulatory levy, licence fees and any otherauthorized charges and shall use such revenue in meetingthe costs incurred in the performance of their functions.

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

(2) The licensed water services providers shall not berequired to pay any fees for the use of public assets for theprovision of water services other than the repayments ofloans acquired for the development of those assets.

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

132. All income through water permits, abstractionand water user fees shall be entirely used for theconservation and management of water resources.

PART VIII_GENERAL PROVISIONS

f33. (1) Any notice required to be served under thisAct shall be served-

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No 34 of2015

Retenhon ofcharges and fees.No l2 of2012.

Funds collectedby water servtcesproviders.

Income fromwater permltsabstraction andwater user fees.

Servrce of notrces

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(a) by delivering it personally to the person requiredto be served, or, if such person is absent or cannotbe 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 lastknown address in Kenya; or

(b) in the case of a notice required to be served on alocal authority, company or other corporate body,by delivering it to its principal officer or byleaving it at such principal officer's office with aperson employed there, or by registered post.

(2) lf any landholder is not known and, after diligentinquiry, cannot be found, such notice may be served byleaving it, addressed to such landholder, with an occupierof the land or, if there is no apparent occupier, by causing itto be put in a conspicuous position on the property inKenya last known to have been occupied by the landholder.

(3) Any notice required to be given to a landholdermay be addressed to the owner of land or premisesdescribed in the address in respect of which the notice isgiven.

134. Any order, notice, consent, approval,permission, demand, objection, application, standard orother thing authorised or required by this Act to be given,made, set, determined or issued by or to the CabinetSecretary, the Authority, Regulatory Board, a countygovernment executive, a licensee or other state organ shallbe in writing.

135. (1) Any order, notice, consent, approval, demandor other document which the Authority, the RegulatoryBoard, county government executive, or other state organis authorised or required by this Act to give, make or issuemay be signed on its behalf-

(a) by the Chief Executive Officer of the relevantinstitution; or

(b) by any officer of the institution authorised by it inwriting to sign documents of the particular kind orto sign the particular document.

2016

Order, etc., to bein writrng.

Authentrcation ofdocuments.

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(2) Any document purporting to bear the signature ofany person-

(a) expressed to hold an office by virtue of which heor she is, under this section empowered to sign adocument; or

(b) expressed to be duly authorised by the respectivestate organ in subsection (1) to sign such adocument or the particular document,

shall, for the purposes of this Act, be deemed, unless thecontrary is proved, to be duly given, made or issued onbehalf of the Authority, the Regulatory Board, or otherstate 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 Officerof the Regulatory Board; or

(c) a licence, or a copy of a licence, certified by theChief Executive Officer of the Regulatory Board.

shall, without further proof be prima facle evidence inany 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 exercisingpowers or functions under this Act;

(b) any person acting at the direction of the CabinetSecretary; 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 goodfaith for the purpose of executing this Act or any rule,regulation or order made under this Act, subject the personin his or her personal capacity to any action, suit, claim ordemand whatsoever.

L38. Despite anything contained in this Act, anypowers and functions conferred or imposed under this Actaffecting land shall, in respect of community land, beexercised and performed subject to any written law relatingto that land.

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Permit or licenceto be evidence ofpower or functron

Protection fromliability.

Apphcation of Actto communityland.

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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 anyapplication made. or action proposed to be taken under thisAct shall be construed as a requirement to ensure that thissection is complied with in relation to that application oraction.

(2) The designated person shall publish a notice. inrelation to the application or proposed action--

(a) in at least one national newspaper of dailycirculation. and

(b) in at least one Kenyan radio station broadcastingin 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 theapplication or proposed action may be inspected;

(c) invite written comments on or objections to theapplication or proposed action;

(d) specify the person or body to which any suchcomments are to be submitted; and

(e) specify a date not earlier than thirty days afterpublication of the notice by which any suchcomments are required be received.

(4) The designated person shall make arrangementsfor the public to obtain copies, at reasonable cost, ofdocuments relating to the application or proposed actionwhich 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 receivedat any public meeting held in relation to theapplication or the proposed action at which thedesignated person was represented or pursuant toany other invitation to comment.

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(5) The designated person shall publish in accordancewith subsection (2), notice of the fact that a copy of thedecision and the reasons for the decision in relation to theapplication or proposed action is available for publicinspection at the same premises as rvere notified undersubsection (3Xb).

(6) Regulations made under this Act may require, thedesignated person to hold a public meeting in relation tothe application or proposed action.

140. (l) If the Authority is satisfied that, by reason ofan exceptional shortage of rain or by reason of accident orother unforeseen circumstances. a serious deficiency ofwater for essential domestic purposes exists or may occurin any area, it may by order-

(a) declare that a crisis exists; and

(b) direct a person who has a supply of rvater inexcess of his or her needs for domestic purposes tosupply to the area concerned, or to a specifiedperson in the area, such quantity of water, and forsuch period, as the order may specify.

(2) A person directed by an order under this sectionwho fails to comply with the provisions of the ordercommits an offence-

(3) An order under this section may require orauthorise-

(a) the laying of pipes and the construction of workson any land;

(b) the entry on to any land by servants or agents ofthe Authority; and

(c) such other measures as the Authority may considernecessary for the giving and taking of any suchwater.

(4) If a person to whom an order under this section isdirected fails to comply with the order, the Authority maydirect any person to-

(a) take possession of the water supply and operateany works of the person concerned for thedrawing, diversion or use of water; and

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case of shortagc ofwater.

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(b) exercise the person's rights in connection withthem during the period of the order, subject to anyconditions imposed by the order.

(5) It shall be the duty of any person exercising anypowers under this section to do so with reasonable care andin such a manner as to cause as little damage as possible.

(6) Any payment made when undertaking the actioncontemplated under subsection (4), or such proportion of itas the Authority may determine, may be recovered by theperson acting under the direction of the Authority, as a debtdue from a person benefiting by the supply of water underthe order.

(7) A person who, without lawful authority, hinders orobstructs any person acting in pursuance of an order underthis section, or interferes with any works constructed orunder construction in pursuance of such an order, commitsof an offence.

141. An inspection of any works authorized to beconstructed under this Act shall not be deemed to constituteor imply any guarantee of the works constructed, or tosupport or justify any claim against the Authority, theRegulatory Board, the Cabinet Secretary, a countygovernment or a licensee in connection with any suchworks.

142. (I) The Cabinet Secretary may makeRegulations with respect to any matter which by this Act isrequired or permitted to be prescribed, or which isnecessary or expedient to be prescribed for the carrying outor giving effect to this Act.

(2) Without prejudice to the generality of subsection(1), such Regulations may make provision with respectto-

(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 damsand the licensing of persons carrying on businessas dam contractors;

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Regulatrons.

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(d) the licensing of engineersoffering professional servicesresources or water services:

(e) requirements in respect towaters:

and other personsin respect of water

bottled or mineral No 8 or loo2

(f) national public water works,

(g) information to be made available to the publicunder the Actl

(h) requirements for the keeping of records and thefurnishing of information to the Authority or theBoard;

(i) the transfer of functions, assets, liabilities andstaff;

() rain water harvesting and household water storage;or

(k)any saving, temporary or transitional provision inconsequence of the repeal of the Water Act,2002.

(3) Regulations made under this section may createoffences in respect of any contravention of the Regulationsand may for any such offence impose penalties notexceeding one million shillings or imprisonment notexceeding two years, or both such fine and imprisonment.

(4) Regulations made under this Act shall bepublished in the Gazette and shall come into effect uponpublication.

143. (l ) A person shall not, without authorityconferred under this Act-

(a) wilfully obstruct, interfere with, divert or obstructwater 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 orconveyed, any rubbish, dirt, refuse, effluent, tradewaste or other offensive matter or thing into ornear to any water resource in such manner as tocause, or be likely to cause, pollution of the waterresource.

(2) A person who contravenes this section commitsan offence.

Obstruction orpollution ofwatercourse orwater resource

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144. (l) Without prejudice to any other remedy orcourse of action, if a person contravenes any provisionunder this Act, then, the Authority, the Regulatory Board,the county government executive concerned or the licenseeconcerned may, by order served on the person concerned,require that person within a reasonable time specified inthe order to remedy the contravention and in particular-

(a) to clean up any pollution or make good any otherharm identified in the order which was caused toany water resource by reason of the contravention;or

(b) to remove or destroy any works, plant ormachinery employed for the purposes of thecontravention.

(2) Where the order in subsection (1) has not beencomplied with, the Authority, the Regulatory Board, theconcerned county government executive or the licenseemay take such steps as are necessary to remedy thecontravention, and the expenses incurred in doing so shallbe recoverable at the instance of the Authority, theRegulatory Board, the concerned county governmentexecutive or the licensee concerned through an applicationto the Tribunal.

(3) A person aggrieved by an order under this sectionmay 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 CabinetSecretary, the Authority, the Regulatory Board, a

county government executive or a licensee in theexercise or performance of his or her powers andfunctions under this Act;

(b) without the written permission of the Authority,Regulatory Board, or the county governmentexecutive, knowingly or wilfully-(i) deface, alter or remove; or

(ii) cause to be defaced, altered or removed, anydocuments, survey mark, water gauge, weiror measuring device or other work, structureor approval installed with the approval of the

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Remedy ofdefaults.

Mrscellaneousoffences.

1095

2016 \l'utcr No.43

Authority, Regulatory Board or countygovernment executive:

(c) wilfully hinder or interrupt, or cause to be hinderedor interrupted, any permit holder. employee,contractor or agent of a permit holder, in thelawful exercise or perfbrmance of any powers andfunctions under this Act;

(d) without lawful authority, wilfully let off ordischarge water from the works any permit holderso that the permit holder loses the use of thatwater;

(e) without lawful authority, lay, erect or construct, orcause to be laid, erected or constructed, any workto connect with the works of any permit holderwhich is capable of drawing water from thatworks;

(f) unlawfully interfere with the works of any permitholder; or

(g) neglect or fail to comply with lawful order givenunder this Act.

(2) A person who contravenes the provisions of thissection commits an offence.

146. Without prejudice to the rights of any person tobring proceedings in respect of an offence under this Act,and subject to Article 157 of the Constitution, theAuthority, the Regulatory Board, a county governmentexecutive or a licensee may institute and maintain criminalproceedings in any court against any person accused of anoffence under this Act or under any Regulations orRegulations made under this Act.

147. A person who commits an offence under thisAct, or under any Regulations or made under this Act,shall, if no other penalty is prescribed in respect of theoffence, be liable to a fine not exceeding one millionshillings or to imprisonment for a term not exceeding twoyears, or to both such fine and imprisonment.

PART IX_TRANSITIONAL PROVISIONS

148. (1) All property, assets, rights, liabilities,obligations, agreements and other arrangements existing atthe commencement of this Act and vested in, acquired,incurred or entered into by or on behalf of the Water

Crrmrnalproceedrngs.

General penaltl

Transfer offunctlons. assets,

habilrty and stafffrom WaterResourceManagement

No.43

I 096

Wuter

Resources Management Authority established under theWater Act,20OZ shall upon commencement of this Act. bedeemed to have vested in or to have been acquired,incurred or entered into by or on behalf of the Authority tothe same extent as they were enforceable by or against theWater Resource Management Authority before thecommencement of this Act.

(2) Any legal proceedings pending in any court, theWater Appeal Board or other tribunal by or against theWater Resources Management Authority established underthe Water Act, 2OO2 in respect of any matter shall continueby or against the Authority.

(3) A person who immediately before thecommencement of this Act was an employee of the WaterResources Management Authority established under theWater Act,2002 shall, on the commencement of this Act,be deemed to be an employee of either the Authority or thebasin water resources boards as the case may be on termsto be determined by the relevant bodies subject to theadvice of the Salaries and Remuneration Commission.

149. (I) All property, assets, rights, liabilities.obligations, agreements and other arrangements not linkedto 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 theNational Water Conservation and Pipeline Corporationestablished by the National Water Conservation andPipeline Corporation Order, 1988 shall, upon thecommencement of this Act be deemed to have vested in orto have been acquired, incurred or entered into by or onbehalf of the Water Harvesting and Storage Authority tothe same extent as they were enforceable by or against theNational Water Conservation and Pipeline Corporationbefore the commencement of this Act.

(2) Any legal proceedings pending in any court, theWater Appeal Board or other tribunal by or against theNational Water Conservation and Pipeline Corporation inrespect of any matter, shall continue by or against theNational Water Harvesting and Storage Authority.

(3) A person who immediately before thecommencement of this Act was an employee of theNational Water Conservation and Pipeline Corporation

20t6

Authorrty to the

Authorlty

No 8 of2002

No 8 of2002

Transfer offunctrons. assets.

habrlrty and stafffrom NatronalWaterCon:ervation andPrpelrneCorporation toNational WaterHarvestrng antlStorage Authonty

LN1 988

No 270 of

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Wuter

shall, on the commencement of this Act, be deemed to be

an employee of the National Water Harvesting and StorageAuthority on terms to be determined by the Salaries andRemuneration 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 WaterServices Regulatory Board established by the Water Act,2002 shall, upon commencement of this Act, be deemed tohave vested in or to have been acquired, incurred or enteredinto by or on behalf of the Regulatory Board to the sameextent as they were enforceable by or against the WaterServices Regulatory Board before the commencement ofthis Act.

(2) Any legal proceedings pending in any court, theWater Appeal Board or other tribunal by or against theWater Services Regulatory Board established under theWater Act, 2002 in respect of any matter shall continue byor against the Regulatory Board.

(3) A person who immediately before thecommencement of this Act was an employee of the WaterServices Regulatory Board established under the WaterAct, 2OO2 shall, on the commencement of this Act, be

deemed to be an employee of the Regulatory Board onterms to be determined by the Salaries and RemunerationCommission.

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 WaterServices Trust Fund established by the Water Act, 2002shall, upon the commencement of this Act, be deemed tohave vested in or to have been acquired, incurred or enteredinto by or on behalf of the Water Sector Trust Fund to thesame extent as they were enforceable by or against theWater Services Trust Fund before the commencement ofthis Act.

(2) Any legal proceedings pending in any court, theWater Appeal Board or other tribunal by or against theWater Services Trust Fund established under the WaterAct, 2OO2 in respect of any matter shall continue by oragainst the Water Sector Trust Fund.

No.43

Transfer offunctions. assets,

Labihtres and stafffrom the WaterServrcesRegulatory Boardto the RegulatoryBoard.

No. 8 of 2002

No. 8 of2002.

No. 8 of 2002.

Transfer offunctlons, assets,

habrlrtres and stafffrom the WaterServrces TrustFund to the WaterSector Trust Fund

No. 8 of 2002

No 8 of2002

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(3) Any person who immediately before thecommencement of this Act is an employee of the WaterServices Trust Fund established under the Water Act,20O2shall, on the commencement of this Act, be deemed to bean employee of the Water Sector Trust Fund on the termsto be determined by the Salaries and RemunerationCommission.

152. (l) Subject to the Transition to DevolvedGovernment Act, 2OI2 all property, assets, rights,liabilities, obligations, agreements and other arrangementsexisting concerning the operation of water services boardsat the commencement of this Act and vested in, acquired,incurred or entered into by or on behalf of the waterservices boards established by the Water Act,2002 shall,upon commencement of this Act, be deemed to have vestedin or to have been acquired, incurred or entered into by oron behalf of the water works development agencies to thesame extent as they were enforceable by or against thewater services boards before the commencement of thisAct.

(2) Any legal proceedings pending in any court, theWater Appeal Board or other tribunal by or against thewater services board established under the Water Act,2002in respect of any matter shall continue by or against thewater works development agencies.

(3) A person who at the commencement of this Act isan employee of the water services boards established underthe Water Act, 2002 shall be deployed as may bedetermined by the Cabinet Secretary to the public sectorinstitutions or to the county governments.

(4) The Cabinet Secretary will publish, inconsultation with the county and public sector institutionsreferred 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 towater service provision existing at the commencement ofthis Act and vested in, acquired, incurred or entered into byor on behalf of the water services boards and the NationalWater Conservation and Pipeline Corporation shall, uponcommencement of this Act. be deemed to have vested in orto have been acquired, incurred or entered into by or on

2016

No ll ot 2(X)l

Transfer offunctions, assets,

habrlrty and stafffrom rvaterservrces boards towater worksdevelopmentagencles.

No. I of20l2.

No 8 of2002

No. 8 of 2002

Transfer offunctlons, assets,

habrlrtres.obhgations,agreements and

otherarrangements tocounty or cross-county waterservrce providers

2016

1099

Water

behalf the county water seryices providers or cross countywater services providers to the same extent as they wereenforceable by or against the water services boards and theNational Water Conservation and Pipeline Corporationbefore the commencement of this Act.

(2) Any other public property, liabilities and contractfor water services provision shall be held in trust for thepublic by the water services provider subject to such termsor provisions as may be specified in the Regulations for theexception of public property, Iiabilities and contracts whichshall be vested in cross-county water services providers.

(3) The county governments shall make agencyagreements and provision for the use of the public propertyreferred to in subsection (2), and any liabilities andcontracts not held by water services boards or county waterservices providers in respect of such property.

154. The existing water services providers shallcontinue to operate as the county water services providersor cross county water services providers as the case may bewithin the period specified in the transfer plan published bythe Cabinet Secretary.

155. (l) All property, assets, rights, liabilities,obligations, agreements and other arrangements existing atthe commencement of this Act and vested, acquired,incurred or entered into by or on behalf of the WaterAppeals Board established by the Water Act, 2OO2 shallupon commencement of this Act be deemed to have vestedin or to have been acquired, incurred or entered into by oron behalf of the Water Tribunal to the same extent as theywere enforceable by or against the Water Appeals Boardbefore the commencement of this Act.

(2) Any legal proceedings pending in the WaterAppeals Board established under the Water Act, 2OO2 rnrespect of any matter shall continue in the Water Tribunal.

(3) A person who immediately before thecommencement of this Act is an employee of the WaterAppeals Board established under the Water Act, 2002shall, on the commencement of this Act be deemed to be anemployee of the Water Tribunal on terms to bedetermined by the Salaries and Remuneration Commission.

No.43

Water serviceprovrders tocontrnue tooperate

Transfer offunctrons. assets.

habilrty and stafffrom WaterAppeals Board toWater Tnbunal

No. 8 of 2002.No. 8 of 2002

No. ti of 2002.

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Wuter

f 56.( I ) The Water Act 2002, is repealed.

(2) The National Water Conservation and PipelineCorporation Order, 1988, is revoked.(3) Notwithstanding the repeals effected by this section-

(a) the Water Appeals Board, Water ResourcesManagement Authority, a water services board ora water services provider and any other bodyestablished under an enactment repealed by thissection shall be deemed to continue in being; and

(b) any person or body performing any functionsunder the Water Act,2002 shall continue to do so,and in so doing may exercise any power vested inthat person or body with respect to theperformance of those functions,

until the Cabinet Secretary, by notice in the Ga:etterevokes this subsection in full or in part as may benecessary.

(4) Without prejudice to subsection (3), Regulationsmade under section 142(2)(r) shall require that the transferof functions, assets, liabilities and staff shall be completedwithin a period of three years following thecommencement of the Act.

(5) The provisions of the Environmental Managementand Coordination Act, 1999 relating to water resourcesconservation and protection and water pollution controlshall be exercised subject to the relevant provision of thisAct and only in the event that the Board has failed orneglected to take appropriate action to exercise its powersand functions under this Act.

157. A right to the use of water in any body of water,being a right existing immediately before thecommencement 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 onbehalf of the Government in any title under theGovernment Lands Act or under the repealedCrown Lands Ordinance, 1902 or

2016

Repcals, Savrrrgsantl 'fransrtrottal

Prol rstons

No U of2002

L N 170/198n

No U of 2001

No 8 of 1999

Existing waterrrghts.

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(d) by agreement or otherwise.

shall be deemed to be a right conf-erred by a permit underthis Act.

158. A county government shall subject to sections70(l) (a) and (b), 1 17 and 120 of the County GovernmentsAct,2012-

(a) give effect to national rvater services standards andconditions set by the Regulatory Board forpurposes of ensuring consumer protection; and

(b) take into consideration the requirement relating totariffs gazetted by the Regulatory Board whileimposing tariff.

159. The County Governments Act, 2012 is amendedin-

(a) section ll7(1) by inserting the following newparagraph immediately after paragraph (a) -

"(aa) comply with the respective policy andstandards provided by the NationalGovernment":

(b) section 120 by inserting the following newsubsection immediately after subsection (l)-

"(lA) Notwithstanding subsection (1). acounty government or any agency deliveringservices in the county shall adopt and implementtariffs and pricing policy subject to the existingNational 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 developmentagencies;

(d) the board of Water Sector Trust Fund;

(e) the board of the National Water Harvesting abdStorage Authority ;_and

(f) a committee or tribunal established under this Act.

(2) ln this Schedule, unless the context otherwiserequires -

"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 orcommittee.

2. (1) In making an appointment to a board, theTribunal or a committee, the person making theappointment shall have regard to-

(a) Article l0 of the Constitution of Kenya onnational values and principles of governance;

(b) Article 232 of the Constitution of Kenya onvalues and principles of public service;

(c) the academic qualifications, professionalexperience, expertise, character and integrity ofthe potential candidates for appointment;

(d) gender, regional and ethnic diversity; and

(e) the degree to which water users, or water users ofparticular kinds, are represented on the board orcommittee at the time the appointment is made.

2016

Apphcatron ofthrs schedule.

Qualification ofmembers.

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(2) The Chairperson and members shall be identifiedfor appointment through an open competitive process.

3. (l) A member shall hold office for such term, notexceeding three years, as may be specified in theinstrument of appointment.

(2) A member shall be eligible for re-appointment forone further term.

4. (l) A member may be appointed to act in theoffice of Chairperson during the illness or absence of theChairperson, and a member so appointed shall have all thepowers and be able to carry out all the functions of theChairperson.

(2) An appointment under this paragraph may bemade, and at any time revoked, by the person or body whoappointed or elected the Chairperson.

5. The terms and conditions of service of a member,including the remuneration, allowances and other expensesto which the member shall be entitled to, shall beprescribed by Regulations made under this Act.

6. (1) The office of a member shall become vacantif-

(a) such member dies, resigns or is removed fromoffice;

(b) such member absents himself or herself from fourconsecutive meetings of the board or committee ofwhich reasonable notice has been given to themember , unless-(i) the board or committee has granted the

member leave to be absent from thosemeetings; or

(ii) within four weeks after the last of the fourmeetings, the member is excused by the boardor committee for having been absent from themeetings;

(c) the member becomes bankrupt, applies to take thebenefit of any law for the relief of bankrupt orinsolvent debtors, compounds with his or hercreditors or makes an assignment of his or herremuneration for their benefit:

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Actingcharrperson

Terms andcondrtions ofservlce.

Vacancy in offrceof member.

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(d) such mernber is adjudged or declared by anycompetent court or tribunal to be of unsoundmind; or

(e) such member is convicted of an offencepunishable by imprisonment tor twelve months ormore.

(2) If the office of a member becomes vacant, therespective appointing authority shall fill the vacancies as

prescribed in this Act.

7. (1) A member who has a direct or indirect Dtsclosureorpecunrary rnterest

pecuniary interest -(a) in a matter which is being considered, or is about

to be considered. at a meeting of a board orcommittee of which he or she is a member; or

(b) in a thing being done or about to be done by theboard or committee,

shall, as soon irs possible after the relevant facts havecome to the member's knowledge, disclose the nature ofthe interest at a meeting of the board or committee.

(2) A disclosure to the Board or committee that themember concerned-

(a) is a rnember, or is in the employment, of aspecified company or any other body;

(b) is a partner, or is in the employment, of a specifiedperson; or

(c) has some other specified interest relating to aspecified company or other body or a specifiedperson,

shall be deemed to be a sufficient disclosure of thenature of the interest in any matter or thing relating to thatcompany or other body or to that person which may ariseafter the date of the disclosure.

(3) The board or committee shall cause particulars ofany disclosure made under subparagraph (1) or (2) to berecorded in a book kept for the purpose and that book shallbe open at all reasonable hours to the inspection, free ofcharge, 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. unlessit is otherrvise determined-

(a) be present during any deliberation, or take part inany decision of the board or committee withrespect to that mattert or

(b) exercise or perform any powers or functions underthis Act with respect to the subject matter of thedisclosure.

(5) A determination under subparagraph (4) may onlybe made-

(a) in relation to the Management Board, RegulatoryBoard, Board of Trustees or the Water StorageBoard by the Cabinet Secretary;

(b) in relation to a basin water resources committeeby the Authority; or

(c) in relation to a water services provider by theRegulatory Board.

(6) Subparagraph (4) does not apply to a memberwhose interest consists merely of the fact that the memberis the holder of a permit.

(7) A contravention of this paragraph does notinvalidate any decision of the board or committee or theexercise or performance of any power or function underthis Act.

(8) A reference in this paragraph to a meeting of a

board or committee includes a reference to a meeting ofany subcommittees of the board or committee.

8. Except as otherwise provided by or under thisAct-

(a) meetings of a board or committee shall be held as

often as maybe necessary fbr the dispatch of theirbusiness but they shall not be less than four anyfinancial year.

(b) a meeting of the board or committee shall be heldon such date time and place as the chairpersonmay decide;

(c) the chairperson shall, on the written application ofone third of the members convene a specialmeeting of the board or committee;

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Water

(d) unless the majority of the total membership of theboard or committee otherwise agree, at leastfourteen days written notice of every meeting ofthe board or committee shall be given to everymember of the board or committeel and

(e) the procedure for the convening of meetings andfor the conduct of business at those meetings shallbe as determined by the Chairperson.

9. A third of the members of a board or a committeeshall constitute a quorum at any meeting of the board orcommittee.

10. The Chairperson or, in the absence of theChairperson, the acting Chairperson or in his or herabsence, a member appointed by the members then presentshall preside at a meeting of a board or committee.

11. (1) A decision supported by a majority of the votescast at a meeting of a board or committee at which aquorum is present shall be the decision of the board orcommittee.

12. Subject to paragraph 9, proceedings of the boardor committee shall not be invalid by reason only of avacancy among the members.

13.(1) The presiding member at a meeting of a boardor committee shall cause a record of the proceedings at themeeting to be made.

(2) Records made for the purposes of this paragraphmay be destroyed after the expiry of the period prescribedby Regulations made under this Act.

14. (1) The first meeting of the board of the Authority,Regulatory Board, the Fund or the National Water StorageAuthority shall be called by the Cabinet Secretary.

(2) The first meeting of a basin water resourcescommittee shall be called by the Authority in such manneras the Authority consider necessary.

(3) The first meeting of a water services providershall be called by the county government establishing it insuch manner as it considers necessary.

15. The First Schedule applies to the county andcross-county water services providers and the RegulatoryBoard will set additional criteria.

2016

Presrdrngmembers.

Decrsrons.

Proceedrngs

Record ofproceedrngs.

Frrst meeting

Apphcatron offirst schedule.

2016

1 107

W0ter

SECOND SCHEDULE (s. al)

CONDITIONS RELATING TO CONSTRUCTION OFWORKS

1. In this schedule, "authorised works" means worksthe construction of which is authorised by a permit.

2. Any authorised works may, if the Authority orRegulatory Board so determines, be inspected duringconstruction by its officers.

3. (1) Upon any inspection made under thisSchedule, the Authority or Regulatory Board may orderthe permit holder to make any addition or alteration whichit considers necessary for the security of any authorisedworks, whether completed or in the course of construction.

(2) If such an order is not complied with to thesatisfaction of the Authority or Regulatory Board withinsuch period as it may specify, the permit authorisingconstruction of the works may be cancelled or modified bythe Authority or Regulatory Board.

4. (1) A permit holder constructing any authorisedworks-

(a) shall, during the construction, keep open for safeand convenient travel all public roads and rights ofway publicly used as such, when they are crossedor interfered with by the works; and

(b) shall, before water is admitted to the works,construct to the satisfaction of the countygovernment concerned or, at the option of thecounty government, refund to it the costs ofconstruction 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 andappurtenances as the county government, withthe approval of the Authority orRegulatory Board, may declare to be necessaryin the public interest.

No.43

Meanrng of"authonsedrvorks".

Inspection ofworks dunngconstruction.

Works to be madesecure

Road crossrngs

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(2) All respective bridges, approaches andluppurtenances shall be maintained by the permit holder, oralternatively, at the option of the county _governntent, bythe county government at the expense of the constructor.

(3) The county government concerned may at anytime at its own cost. renew or alter any such bridge or anystructure or works in connection therewith.

5. (l) Upon the expiration of the time limited by apennit for construction of rvorks authorised by the permit,or where the construction is completed before theexpiration 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 Authorityor Regulatory Board, may make an inspection of the worksto ascertain that-

(a) the works have been completed in accordance withthe permit;

(b) the easements, if any, for the works have beenobtained;

(c) agreements, if any are necessary, have beenentered into for the supply of water for utilizationon lands which are not the property of the permitholder or for the drainage of lands; and

(d) the works as constructed are of the requiredcapacity.

(3) If construction is not completed within the timelimited by the permit, a progress report shall be submittedin lieu of a completion report, and the permit holder mayapply for an extension of time.

(4) An extension of time under subparagraph (3) maybe refused or may be sanctioned upon such terms as theAuthority or Regulatory Board may specify.

6. Upon the expiration of the time set out in thepermit or any extension of that time for the construction ofworks authorised by the permit, the rights granted to thepermit holder under the permit shall cease, and any worksconstructed, erected, fixed or acquired at the date of suchdetermination may be taken over and operated, or disposed

2016

Completroncertrllcate andrnspection

Forferture ofrrghts rf works notcompleted rvrthrntrme allorved

I r09

2016 Water No.43

of, in such manner as the Authority or Regulatory Boardmay 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 RegulatoryBoard.

(2) Pursuant to subparagraph (l),every permit holdershall ensure that-

(a) the works at all times are of sufficient strengthand capacity for the fulfilment of the purposes forwhich they were constructed; and

(b) no damage occurs to any road, property or work intheir vicinity.

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THIRD SCHEDULE (s. 39)

EASEMENTS

1. The acquisition of an easement in accordance withthis schedule shall not affect the burden or benefit of anyencumbrance on the land existing at the date of theacquisition or the liability or right of any person in respectthereof.

2. (1) An easement shall include the right of access,along a route to be approved by the Authority orRegulatory Board after consultation with the owner, to anypiece of land contiguous to the water of the permit holderin so far as may be necessary for the purpose ofconstructing, inspecting. maintaining. operating orrepairing the works of the permit holder and for anypurpose necessary for the effective enjoyment of theeasement.

(2) The permit holder shall give reasonable notice tothe occupier of the land over which the easement is held ofhis or her intention to enter the land for any of the purposesmentioned in this paragraph.

3. A permit holder who has acquired an easementwhich authorises the construction of a canal-

(a) shall take and maintain adequate measures forpreventing the introduction into the canal of a

greater quantity of water than that which the canalis capable of carrying; and

(b) shall not cause damage to any land in respect ofwhich the easement is held by permitting theaccumulation of weeds, silt or any otherobstruction or nuisance which might causeflooding, or any other damage.

4. (1) If damage is caused, as the result of works of apermit holder to the land over which the easement is held,the landholder may require the permit holder to constructsuch additional works as are necessary, in the opinion ofthe Authority to prevent such damage, and the Authoritymay by order require the permit holder to construct suchadditional works at his or her sole expense.

(2) lf the permit holder fails to comply with an orderof the Authority given under this paragraph, the Authoritymay cancel the permit.

2016

Encumbrances

Easementrncludes rtghts ofACCESS

Permrt holder kravord floodrnglands andmalntaln canalsatrsfactonly.

Damage causedby rvorks ofpermit holder.

2016

1111

Wutat

5. (l) A permit holder who has acquired an easementfor the construction of works on another landholder's landwhich prevents the landholder passing freely over or on theland or interferes with his or her existing works, structuresor devices upon the land shall, at his or own expense,construct and maintain in repair, to the satisfaction of theAuthority or Regulatory Board and under such conditionsas it may prescribe-

(a) such bridges and other structures and devices asshall make communication safe and convenient;or

(b) such works, structures or devices as the Authorityor Regulatory Board considers necessary toenable the landholder to enjoy the use of anywork, structure or device interfered with.

(2) Any permit holder who fails to comply with theprovisions of this paragraph commits an offence.

6.(1) A permit holder claiming an easement under thisAct shall serve a notice on the holder of the land on, overor through which the permit holder desires to acquire theeasement, and shall in the notice state the followingparticulars, and such further particulars as may be requiredby Regulations made under this Act-

(a) a description of the proposed works and astatement 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 ofany works or area of swamp or land to bereclaimed, if the easement is for reclamation of aswamp or lands;

(d) a statement of the area of the land (if any) which isor will be-(i) occupied by the works;

(ii) flooded as a result of the works;

(i) required for the purposes of inspection andmaintenance of the works;

No.43Permit holder toconstruct works toenable landholderto enJoy his worksrf rnterfered with.

Permit holderdesiring easementto serve notice onlandholder.

I

It

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(ii)

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required for the excavation or collection ofmaterial for the works, or for the deposit ofsoil or material derived from the works;

required for a road or roads to obtain accessto the works: or

(iii)

(iv) required for the control or prevention ofpollution of the water to be used; and

(e) a statement of the compensation which is offeredand the period of time during which the permitholder wishes to enjoy the easement.

(2) A copy of the notice shall be sent by the permitholder to the Authority or Regulatory Board.

7. If the landholder agrees to the claim for an

easement, either as originally proposed or as modified byagreement, the permit holder-

(a) shall execute a deed including the particulars ofthe claim as agreed and any other relevant matter;and

(b) after the execution of the deed by the partiesconcerned, shall send two copies of the deedcertified by the Registrar of Titles to theAuthority.

8. If the landholder does not, within two months afterthe service of the notice provided for in paragraph 6 of thisSchedule, agree to the claim for an easement or to anyother matter necessary for an easement, the permit holdermay apply to the Authority, in the prescribed manner, foran easement, and shall serve notice of such applicationupon the landholder.

9. (l) The Authority may either dismiss the claim foran easement or grant the claim with or withoutmodification and subject to such conditions, and to thepayment of such compensation. as the Authority shalldeem just.

(2) The Authority shall notify the permit holder andthe landholder of its decision.

(3) When the claim for an easement has been grantedthe permit holder shall embody the particulars and othermatters pertaining to an easement granted under

Consent oflandholder toeasement.

Applicationwhere landholderdoes not consent.

Determination ofapplication foreasement.

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subparagraph (1) of this paragraph in a deed or otherinstrument suitable for registration, and shall tender thedeed or instrument, together with the amount of any awardof compensation made, to the landholder for execution.

(4) If the landholder fails within such time as may bespecified by the Authority to execute and deliver the deedor instrument to the permit holder, the Authority may do soon his or behalf, and thereupon the deed or instrument shallhave the same effect as if it had been executed by thelandholder.

(5) The Registrar of Titles shall register the deed orinstrument against the title affected, and two copies of suchdeed 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 undersubparagraph (2) of this paragraph, no action shall be takenunder subparagraphs (3), (4) or (5) of this paragraph untilthe appeal has been decided.

10.(1) An easement acquired under this Act Shall Lapse ofeasement

No.43

Permrt holder tokeep rvorks lnstate of repair

lapse-(a) if the works authorised are not completed and the

water is not utilized within one year from the dateof acquiring the easement or within such furtherperiod as the Authority may determine; or

if, at any time, substantial use is not made of thepermit in accordance with the terms of the permitfor a continuous period of two years, or suchlonger period as the Authority may, from time totime, determine.

(2) Upon the lapse of an easement, the Authority shallnotify the Registrar of Titles, who shall, without charge,cancel the registration of the easement against the titleaffected.

11. (1) If any work constructed on the land of a personother than the permit holder is out of repair or requirecleaning, the permit holder or his or her agent shall, ifrequired in writing by the landholder, repair or clean suchworks within a reasonable time.

(2) lt the permit holder fails to keep the works in astate of repair the landholder may carry out the necessary

(b)

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repairs or cleaning and may recover the cost from thepermit holder in any court of competent jurisdiction.

(3) The repairs or cleaning under this paragraph shallnot be unreasonably demanded, and, in the event of a

dispute between the parties, the Authority shall decide whatconstitutes reasonable repairs or cleaning.

(4) A permit holder who allows any such works to fallinto disrepair or, in the opinion of the Authority to be insuch a state as to require cleaning, shall be liable for alldamage which may arise as a consequence.

12. (l) Any landholder on, over or through whoselands an easement has been applied for or been grantedmay, by application to the Authority either before or afterthe construction of any works, apply for a permit to makeuse of such works or the proposed works for the diversion,abstraction, storage or use of whatever water he or she maybecome entitled to divert, store or use under this Act.

(2) Before such a permit or authorisation is issued bythe Authority-

(a) the landholder shall prove, to the satisfaction ofthe Authority, that the works of the permit holdercan be satisfactorily used for the purpose of thelandholder and without material detriment to thepermit holder; and

(b) a proportionate cost of the works shall be paid bythe landholder to the permit holder whoconstructed or is constructing the works as may beagreed on between the parties or, failingagreement, as may be determined by the Tribunal.

(3) The permit holder may require the landholder toenter into an agreement to continue to pay theproportionate cost of maintaining the portion of the worksmade use of, until either party has in writing surrenderedsuch right of user and, in the event of disagreement, thematter shall be decided by the Tribunal.

(4) If such works require modification to enable thelandholder to enjoy their use, he or she shall, unless thematter is otherwise agreed, pay to the permit holder-

(a) the entire cost of modifying them in the mannerapproved by the Authority; and

2016

Land holder maydemand andobtarn use ofworks.

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 theAuthority that due to altered conditions it is just andequitable to revise the rate of payment,, the Authority shallinform the parties concerned, and, failing agreementbetween such parties on any such revision of the rate ofpayment, the matter shall be referred to and decided by theTribunal.

13. When works have been excavated by a permitholder on another person's land-

(a) any land used solely for the deposit of excavatedmaterial from the works executed shall,notwithstanding the payment of compensation andexcept in the case of an easement for drainage orreclamation, remain available to the landholder forhis or her own purposes; and

(b) the landholder may remove such excavatedmaterial except that, no damage shall be done tothe works of the permit holder, nor shall the worksbe obstructed or interfered with by such removal.

14. The deed or other instrument creating an easementacquired under this Schedule shall be registered against thetitle affected, and a plan, which shall be approved andsigned 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 shalldetermine if and when the permit for the exercise of rightsunder which the easement has been acquired is cancelled asprovided for in this Act.

(2) On the determination of the relevant permit, anyworks constructed by the permit holder on the lands ofanother person shall, where the permit holder is the solepermit holder. become the property of such other personunless removed by the permit holder-

(a) voluntarily. within two years from the date of suchdetermination; or

(b) at the order of the Authority at the request of theother person.

16. On the determination or variation of an easement,the Authority shall notify the landholder over whose landthe easement was granted, and the Registrar of Titles and

Landholder mayuse land occupiedby excavatedmaterral for ownpurposes.

Easements to be

regrstered

Determrnation ofeasement-

Regrstratron ofdetermination orvarration ofeasement.

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the landholder concerned may, at the expense of the personin whose name the easement is registered, take such actionas is necessary to cause his or her title to be freed from theeasement or to record the variation, as the case mayrequire.

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FOURTH SCHEDULE (s.56)

ABSTRACTION OF GROUND WATER

1. This Schedule shall apply to the extraction ofground water.

2. (1) A person shall not construct or begin toconstruct a borehole or well without having first given tothe Authority notice of his or her intention to do so.

(2) A person intending to construct a borehole or wellshall apply to the Authority for a permit and shall complywith such requirements as may be imposed by theAuthority.

(3) Unless otherwise exempted, a person constructinga well shall keep a record of the progress of the work whichshall include-

(a) measurements of the strata passed through andspecimens of such strata;

(b) measurements of the levels at which water wasstruck; and

(c) measurements of the quantity of water obtained ateach level, the quantity finally obtained and therest level of the water.

(4) A person to whom subparagraph (2) applies shallallow any person authorized by the Authority, at anyreasonable time-

(a) to have access to the well;

(b) to inspect the well and the material excavated fromit;

(c) to take specimens of such material and of waterabstracted from the well; and

(d) to inspect and take copies of or extracts from therecord required to be kept under this paragraph.

(5) Where the person constructing a well on any landis not the occupier of the land, the obligation to allow anyperson authorized by the Authority to exercise his or herrights under this paragraph shall be the obligation of theoccupier of the land as well as of the person constructingthe well.

No.43

Apphcatron ofthis Schedule.

Notrce ofrntentron toconstruct well

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ll18Vhtter 2016

(6) The Authority may by notice, rvhetherconditionally or subject to specified conditions, exempt anyperson. in such circumstances as may be specified in thenotice, from the operation of subparagraphs (2) and (3).

3. A person constructing a rvell. if required to keeprecords under this Part, shall, lvithin one month of thecessation of the construction send to thc Authority -

(a) a complete copy of the record. together with thespecimens ref'erred to in the recordl

(b) particulars of any test made, before such cessationof the construction, of the yield of water,specifying-

(i) the rate of flow throughout the test and theduration of the test: and

(ii) where practicable, the water levels during thetest and thereafter until the water level hasreturned to its natural level;

(c) a statement of whether, in his opinion (as

determined by tasting) the water is suitable fordrinking or is hi-ehly mineralized, as the case maybe; and

(d) if required by the Authority, such water samples as

it may consider necessary.

4. ( I ) Where any well is being constructed within theproximity of an existing well at a distance to be specifiedby the Authority, the Authority may by notice require theperson constructing the well to apply tests, to be specifiedin the notice. to the existing well and to supply to theAuthority the particulars of the results of such testsincluding the rate of pumping and rest levels of water.

(2) Where the well to which the tests are to be appliedis situated on the property of a person other than the personconstructing the well and the person constructing the wellis unable for any reason to apply the test. the Authoritymay, by notice. require the person upon whose property theexisting well is situate to apply the tests to be specified inthe notice to him or her, and to supply to the Authority theparticulars of the results of such tests.

Subnrrssron olrecords

Tests onnerghbounngrve lls

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5. Where any borehole contractor constructs aborehole for the purposes of a well on land belonging to oroccupied by any other person, the borehole contractor shallbe deemed, for the purposes of this Act, to be the personconstructing the well.

6. (1) A person constructing a well or the owner oroccupier of the land on which construction takes place maygive notice to the Authority requesting that-

(a) any copy of, or extract from, the record required tobe kept under this Act; or

(b) any specimen taken or any other particularsconnected with the well, be treated confidentially

(2) ln response to such the notice mentioned insubparagraph (1), the Authority shall, if sufficient causehas been shown, to not allow such copy, extract, specimenor other particulars, except in so far as it contains or affordsinformation as to water resources or supplies, to bepublished or shown to any person other than a member ofthe Authority without the consent of the person giving thenotice.

(3) If at any time the Authority gives notice to theperson constructing a well or the owner or occupier of theland on which the construction is being done, that, in itsopinion, his or her consent is unreasonably being withheldthe person may, within three months after the notice givenby the Authority, appeal to the Tribunal.

(4) If, at the expiration of the period in the notice, noappeal has been made or, after hearing the appeal, theTribunal does not make an order restraining it from doingso, the Authority may proceed as if such consent had beengiven.

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 orquality of the supply or cleaning, sterilizing,examining or repairing the well;

(b) abstract from any well water in excess of hisreasonable requirements and which he cannot usein a reasonable and beneficial manner,

No.43Contractordeemed to be

constructor

Records may be

requlred to be

treated as

confidential.

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(c) conduct the water from any well through anychannel or conduit so that more than twenty percent of the water is lost between the point ofappropriation and the point of beneficial useexcept that, where the water from any well isconducted through channels or conduits togetherwith water from other sources, no person shallpermit the waste of more than twenty per cent ofthe water in conducting the water from the point ofappropriation of the well water to the point ofbeneficial use;

(d) use any water from any well for the purpose ofdomestic use or the watering of stock, exceptwhere such water is carried through pipes fittedwith float valves or other satisfactory means ofcontrol, to prevent waste: Except that, whereground water interferes or threatens to interferewith the execution or operation of undergroundworks, whether water works or not, the Authoritymay, in any particular case, by notice permit suchwater to waste upon such conditions, regardingquantity and method of disposal, as the notice mayspecify.

8. (1) Any well which encounters salt water, in thisPart referred to as a "defective well", shall be securelycased, plugged or sealed off by the owner of the well, so

that the salt water is confined to the strata in which it wasfound, and such casing, plugging or sealing shall be done insuch a manner as effectively to prevent the salt water fromescaping from the strata in which it was found into anyother water-bearing strata or on to the surface of the groundexcept where the Authority or the Regulatory Board hasapproved the use of desalination systems to make suchwater potable.

(2) This paragraph shall apply to wells constructedbefore or after the commencement of this paragraph.

9. Any person who re-cases or removes the plugs orseals from a defective well, or deposits, or causes orknowingly permits the deposit of, any dirt, rubbish or othermaterial in any such well except with the writtenpermission of the Authority commits an offence.

2016

Defectrve wells

Interference wrthdefectrve well

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10. (1) Before any defective well is re-cased or theplugs or removed, the owner of the well, or his dulyauthorized representative. shall file with the Authority an

application for permission to carry out such re-casing or theremoval 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 thewell;

(d) the distance below the surface of the ground to thewater level in the well;

(e) the strata penetrated;

(f) the distance from the surface of the ground to thetop of the salt water stratum and the thickness ofthe salt water stratum; and

(g) any other matter specified by the Authority inrespect of the well.

(3) The application shall also state the methodsproposed for re-casing, re-plugging or resealing of the well.

11. The Authority, after consideration of anyapplication under paragraph 10, may call for additionaldata, and may make such investigation as it considersnecessary, 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 placeit in a satisfactory condition; and

(b) the time that shall be allowed to complete thework, and may inspect such work while it is inprogress.

12. The Authority may on its own initiative. or uponinformation or complaint from any source, make anexamination of any well suspected of containing salt water,and may by order issue instructions for curing any defectsin the well.

No.43Apphcatron tocarry out work ona defectrve well.

Instructron to dealwrth defectivewell

Authority mayinspect the well

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13. (1) Upon completion of the works in pursuance ofany instructions issued under this Schedule-

(a) the contractor who carries out the work: or

(b) if the work is done without a contractor, the ownerof the well, shall file with the Authority astatement sworn or affirmed specifying in detailthe manner in which such work was done.

(2) The statement shall be filed within thirty days afterthe completion of the work.

14. (l) Upon receipt of a statement under paragraph13, the Authority shall determine, either from the statementor from inspection or test, whether the work has beensatisfactorily performed.

(2) lf the Authority determines that the work has notbeen satisfactorily performed, it shall by order issueadditional instructions specifying the additional workrequired to place the well in a satisfactory condition, andspecifying the time for the completion of such additionalwork.

(3) Upon the completion of such additional work, astatement sworn or affirmed shall be filed with theAuthority as provided for in paragraph 13.

15. Every person abstracting ground water by meansof a well shall, in order to prevent contamination orpollution of the water-

(a) effectively seal off to a sufficient depth anycontaminated or polluted surface or shallow waterin rock openings or soft broken ground;

(b) effectively seal the top of the well between thesurface casing and the internal pump column, andthe suction or discharge pipe;

(c) dispose of all return or waste water by means otherthan by return to the well;

(d) extend the well casing to a point not less thantwenty centimetres above the elevation of thefinished pump house or pump pit floor;

(e) use either welded or screw type well joints on thecasing if made of metal;

2016

Sworn statementto be submitted.

Additional workon defective well

Contaminatronand pollution ofground water

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2016 Wdtcr

(1) dispose of effluents or drainage l-rom anyhousehold. stable factory, trade premises or otherpremises in such il manner as will prevent anysuch etfluent or drainage from reaching such sealor ground rvater; and

(g) carry out such other work as the Authority may byorder direct. from time to time, for the preventionof 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 toflow fiom the upper aquifer to the lower aquif-erland

(c) in the opinion of the Authority this is likely toprove detrimental to the ground water resources ofthe area,

(d) the Authority may order what special measuresshall be taken by the owner of the rvell so that thewater from the higher aquifer cannot flow to thelower aquifer.

17. Every artesian well and every sub-artesian r,vellshall be efficiently cased, capped or furnished lvith suchappliances as will readily and effectively arrest and preventthe flow there from over the surface of the ground orwasting from the well through the strata through which itpasses.

18. (l) A person who neglects or fails to comply withany order or requirement given or imposed on him by orunder this Schedule shall be guilty of an offence and liableon conviction to a penalty not exceeding one hundredthousand shillings.

(2) Liability of any person under this paragraph is inaddition to any liability of the person under paragraph 18.

(3) A licensee shall pay compensation on just terms tothe owner or occupier, as the case may be, of any premiseswithin the prescribed area in respect of-

(a) any curtailment of or injury to his legal rights byrestrictions 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 specralmcasures tosafeguard groundwatel resources

Artesran rvells tobe cased.

Offcnce andpenalty'

No.43

tt24Water

provisions of this Act, lawfully have beenrequired,

and any disagreement as to the amount of suchcompensation shall be resolved and determined by theTribunal.

(4) Where any person has failed to comply with arequirement notified to him and-

(a) he has not appealed against the requirement andthe time for appeal has expired; or

(b) his appeal has been dismissed or the requirementhas been affirmed or varied in consequence of hisappeal and he has failed to comply with therequirement as so affirmed or varied, the licenseemay, without prejudice to his right to takeproceedings in respect of such failure, execute andkeep in good repair the works specified in the Cap'2

requirement as originally made or as varied onappeal and may in the Tribunal recover from theowner or occupier concerned, as a debt, expensesreasonably incurred by him in so doing.

(5) Expenses recoverable under subparagraph (4) donot include expenses incurred in respect of the licenseemay, without prejudice to his right to take proceedings inrespect of such failure, execute and keep in good repair theworks specified in the requirement as originally made or asvaried on appeal and may in the Tribunal recover from theowner or occupier concerned, as a debt expensesreasonably incurred by him in so doing.

(6) Expenses recoverable under subparagraph (4) donot 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 thepurpose of making and enforcing Regulations under thissection, and the provisions of this Act shall in any suchcase have effect as if references therein to a referenceswere references to two or more such licensees actingjointly.

(8) Section 34 of the Interpretation and GeneralProvisions Act shall not apply to any regulation madeunder this section.

2016