LAWS OF KENYA

THE WATER ACT

CAP. 372

Revised and published by the National Council for Law Reporting

with the authority of the Attorney-General as gazetted by the Government Printer

www.kenyalaw.org
Kenya

Water Act
Cap. 372

Legislation as at 31 December 2022

Note: This Act has not yet come into force in full. See the commencements table for more information.

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Water Act (Cap. 372)
Contents
Part I – PRELIMINARY ....................................................................................................................................................................................... 1

1. Short title .................................................................................................................................................................................................... 1

2. Interpretation ............................................................................................................................................................................................. 2

3. Purpose of the Act ................................................................................................................................................................................... 5

4. Principles ..................................................................................................................................................................................................... 5

Part II – OWNERSHIP, USE AND MANAGEMENT OF WATER RESOURCES ....................................................................................... 5

5. Ownership of water resources ............................................................................................................................................................ 5

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

7. Rights to water resources ..................................................................................................................................................................... 5

8. National Public Water Works ............................................................................................................................................................... 5

9. Administration of National Water Resources ................................................................................................................................. 6

10. National Water Resource Strategy .................................................................................................................................................. 6

Part III – REGULATION OF THE MANAGEMENT AND USE OF WATER RESOURCES .................................................................... 7

11. Establishment of the Authority ........................................................................................................................................................ 7

12. Functions of the Authority ................................................................................................................................................................. 7

13. Powers of the Authority ...................................................................................................................................................................... 7

14. Management Board ............................................................................................................................................................................... 8

15. General duties and responsibilities of the Management Board ........................................................................................... 8

16. Powers of the Management Board ................................................................................................................................................. 8

17. Chief Executive Officer ......................................................................................................................................................................... 9

18. Removal of the Chief Executive Officer ........................................................................................................................................ 9

19. Employees of the Authority ............................................................................................................................................................... 9

20. Classification of water resources and determination of quality objectives ................................................................... 10

21. National Monitoring and Information System .......................................................................................................................... 10

22. Protection of catchment areas ....................................................................................................................................................... 10

23. Conservation of ground water ....................................................................................................................................................... 11

24. Basin areas ............................................................................................................................................................................................ 11

25. Establishment of a basin water resources committee .......................................................................................................... 11

26. Basin water resources committee ................................................................................................................................................. 11

27. Functions of the basin water resources committees .............................................................................................................. 12

28. Basin area water resources management strategy ................................................................................................................. 12

29. Establishment and functions of water resource users associations ................................................................................. 13

30. Establishment of the National Water Harvesting and Storage Authority ....................................................................... 13

31. Water Harvesting and Storage Board .......................................................................................................................................... 13

 32. Powers and functions of the Water Storage Authority .......................................................................................................... 13

33. Chief Executive officer ...................................................................................................................................................................... 14

34. Removal of the Chief Executive Officer ...................................................................................................................................... 14

35. Employees of the Water Storage Authority ............................................................................................................................... 14

36. Water permit ......................................................................................................................................................................................... 15

37. Exemptions ............................................................................................................................................................................................. 15

38. Unauthorized construction and use of works ........................................................................................................................... 15

39. Easement for works ........................................................................................................................................................................... 16

40. Procedure for obtaining a permit ................................................................................................................................................. 16

41. Conditions of permits ........................................................................................................................................................................ 16

42. Charges for water use ....................................................................................................................................................................... 17

43. Considerations for the issuance of permits ............................................................................................................................... 17

44. Issue of permits in exceptional cases ......................................................................................................................................... 18

45. Permit to be linked to land or undertaking .............................................................................................................................. 18

46. Variation or permit ............................................................................................................................................................................. 19

47. Power to require permit application or re-applications ........................................................................................................ 19

48. Cancellation of a permit .................................................................................................................................................................. 20

49. Cancellation or variation of a permit for failure to observe terms and conditions ..................................................... 20

50. Variation of permit following a hydrographical survey ........................................................................................................ 20

51. Variation of a permit at the request of the permit holder .................................................................................................. 20

52. Abandonment of permitted activities .......................................................................................................................................... 21

53. Surrender of permits .......................................................................................................................................................................... 21

54. Register of permits ............................................................................................................................................................................. 21

55. Appeals .................................................................................................................................................................................................... 21

56. Abstraction of ground water ........................................................................................................................................................... 22

57. Entry by permit holder ...................................................................................................................................................................... 22

58. Entry by the Authority ...................................................................................................................................................................... 22

59. Entry by licensee ................................................................................................................................................................................. 22

60. Manner of entry ................................................................................................................................................................................... 23

61. Powers of inspectors .......................................................................................................................................................................... 23

62. Requirement to state name and address ................................................................................................................................... 24

Part IV – WATER SERVICES ........................................................................................................................................................................... 24

63. Right to clean and safe water ....................................................................................................................................................... 24

64. National Water Services Strategy .................................................................................................................................................. 24

65. Establishment of water works development agencies .......................................................................................................... 25

66. Boards of the water works development agencies ................................................................................................................ 25

67. Criteria for water works development agencies ...................................................................................................................... 25

68. Powers and functions of the water works development agency ....................................................................................... 25

69. Handover of completed works ....................................................................................................................................................... 25

70. Establishment of the Water Services Regulatory Board ....................................................................................................... 26

71. Regulatory Board ................................................................................................................................................................................. 26

72. Powers and functions of the Regulatory Board ....................................................................................................................... 26

73. Employees of the Regulatory Board ............................................................................................................................................ 27

74. Licensing ................................................................................................................................................................................................. 27

75. Register of licensed water services providers .......................................................................................................................... 28

76. Revocation of licence ........................................................................................................................................................................ 28

77. Establishment of water service providers .................................................................................................................................. 28

78. Responsibilities of the water services provider ....................................................................................................................... 29

79. Board of a water services provider .............................................................................................................................................. 29

80. Member of the Board not to hold public office ...................................................................................................................... 29

81. Extension of services to rural or developing areas ................................................................................................................ 29

82. Appeals to the Regulatory Board .................................................................................................................................................. 29

83. County owned water service provider to hold assets for the public ................................................................................ 30

84. Cabinet Secretary to make Regulations ...................................................................................................................................... 30

85. Provision of water services ............................................................................................................................................................. 30

86. Procedure and requirements for obtaining a Iicence ............................................................................................................ 30

87. Application for a licence subject to public consultation ...................................................................................................... 31

88. Licence not to confer any rights of proprietorship to the licensee .................................................................................. 31

89. Licence fees ........................................................................................................................................................................................... 32

90. Conditions of Licence ........................................................................................................................................................................ 32

91. Duty to provide water services ...................................................................................................................................................... 32

92. Consumer complaints ........................................................................................................................................................................ 32

93. Public Private Partnerships .............................................................................................................................................................. 32

94. Special provisions with respect to rural areas not commercially viable ........................................................................ 33

95. Variation of terms or conditions of a licence ........................................................................................................................... 33

96. Areas of water service ....................................................................................................................................................................... 33

97. Clustering of areas of water service provision ......................................................................................................................... 33

98. Variation of areas of service ........................................................................................................................................................... 34

99. Provision of water service outside the area of supply .......................................................................................................... 34

100. Supply of bulk water ....................................................................................................................................................................... 35

 101. Default by a Licensee ..................................................................................................................................................................... 35

102. Special regulatory regime ............................................................................................................................................................. 35

103. Transfer of functions of Iicensee ................................................................................................................................................ 36

104. Agreements as to protection of sources of water, etc ........................................................................................................ 36

105. Power of licensee to prohibit or restrict use of water ....................................................................................................... 36

106. Duty to enforce Regulations on water services .................................................................................................................... 36

107. Execution of works for protection of water ............................................................................................................................ 37

108. Control of trade effluent ................................................................................................................................................................ 37

109. Sewerage services levy ................................................................................................................................................................... 38

110. Compulsory acquisition of land .................................................................................................................................................. 38

111. Regulatory Board to establish Information System ............................................................................................................. 38

112. Annual report ..................................................................................................................................................................................... 38

Part V – WATER SECTOR TRUST FUND .................................................................................................................................................... 38

113. Establishment of the Water Sector Trust Fund ...................................................................................................................... 38

114. Objects of the Fund ......................................................................................................................................................................... 39

115. Board of Trustees of the Fund ..................................................................................................................................................... 39

116. Functions of the Board of Trustees ........................................................................................................................................... 39

117. Monies of the fund ........................................................................................................................................................................... 40

118. Staff of the Fund .............................................................................................................................................................................. 40

Part VI – DISPUTE RESOLUTION ................................................................................................................................................................ 40

119. Establishment of the water tribunal ......................................................................................................................................... 40

120. Staff of the Water Tribunal ........................................................................................................................................................... 41

121. Jurisdiction of the Tribunal ........................................................................................................................................................... 41

122. Proceedings of the Tribunal ......................................................................................................................................................... 41

123. Determination of appeals and disputes ................................................................................................................................... 41

124. Appeals to the Land and Environment Court ........................................................................................................................ 41

125. Decisions binding if no appeal within thirty days ............................................................................................................... 41

Part VII – FINANCIAL PROVISIONS ............................................................................................................................................................ 41

126. Funds of the Authority, Regulatory Board, Water Harvesting and Storage Authority and Water Works
Development Agencies ............................................................................................................................................................................. 41

127. Financial year ..................................................................................................................................................................................... 41

128. Annual estimates .............................................................................................................................................................................. 42

129. Accounts and audit .......................................................................................................................................................................... 42

130. Retention of charges and fees .................................................................................................................................................... 42

131. Funds collected by water services providers ......................................................................................................................... 42

 132. Income from water permits abstraction and water user fees .......................................................................................... 43

Part VIII – GENERAL PROVISIONS .............................................................................................................................................................. 43

133. Service of notices ............................................................................................................................................................................. 43

134. Order, etc., to be in writing .......................................................................................................................................................... 43

135. Authentication of documents ....................................................................................................................................................... 43

136. Permit or licence to be evidence of power or function ..................................................................................................... 44

137. Protection from liability ................................................................................................................................................................. 44

138. Application of Act to community land ..................................................................................................................................... 44

139. Public consultation .......................................................................................................................................................................... 44

140. Special powers in case of shortage of water ......................................................................................................................... 45

141. No warranty implied by inspection ........................................................................................................................................... 46

142. Regulations ......................................................................................................................................................................................... 46

143. Obstruction or pollution of watercourse or water resource ............................................................................................. 46

144. Remedy of defaults .......................................................................................................................................................................... 47

145. Miscellaneous offences ................................................................................................................................................................... 47

146. Criminal proceedings ....................................................................................................................................................................... 47

147. General penalty ................................................................................................................................................................................. 48

Part IX – TRANSITIONAL PROVISIONS ..................................................................................................................................................... 48

148. Transfer of functions, assets, liability and staff from Water Resource Management Authority ............................ 48

149. Transfer of functions, assets, liability and staff from National Water Conservation and Pipeline Corporation
to National Water Harvesting and Storage Authority ................................................................................................................... 48

150. Transfer of functions, assets, liabilities and staff from the Water Services Regulatory Board to the
Regulatory Board ......................................................................................................................................................................................... 48

151. Transfer of functions, assets, liabilities and staff from the Water Services Trust Fund to the Water Sector
Trust Fund ...................................................................................................................................................................................................... 49

152. Transfer of functions, assets, liabilities and staff from water services boards to water works development
agencies .......................................................................................................................................................................................................... 49

153. Transfer of functions, assets, liabilities, obligations, agreements and other arrangements to county or
cross-county water service providers** ............................................................................................................................................... 50

154. Water service providers to continue to operate .................................................................................................................... 50

155. Transfer of functions, assets, liability and staff from Water Appeals Board to Water Tribunal ............................. 50

156. Repeals, Savings and Transitional Provisions ........................................................................................................................ 50

157. Existing water rights ....................................................................................................................................................................... 51

158. Responsibility of a county government .................................................................................................................................... 51

159. [Spent] .................................................................................................................................................................................................. 51

FIRST SCHEDULE [s. 14] ................................................................................................................................................................................. 52

SECOND SCHEDULE [s. 41(2)] ....................................................................................................................................................................... 55

THIRD SCHEDULE [s. 39] ................................................................................................................................................................................ 57

FOURTH SCHEDULE [s. 56] ............................................................................................................................................................................ 61

Water Act (Cap. 372) Kenya

WATER ACT
CAP. 372
Published in Kenya Gazette Vol. CXVIII—No. 114 on 23 September 2016

Assented to on 13 September 2016

There are multiple commencements

Provisions Status

Part I (section 1–4); Part II (section 5–10); Part III commenced on 21 April 2017 by Legal Notice 59 of
(section 11–62); Part IV (section 63–112); Part V 2017.
(section 113–118); Part VI (section 119–125);
Part VII (section 126–132); Part VIII (section 133–
147); Part IX, section 148–151, section 153–154,
section 156–159

Part IX, section 152 commenced on 3 May 2019 by Legal Notice 27 of

2019.

Part IX, section 155 commenced on 7 December 2022 by Legal Notice 225
of 2022.

Part III, section 37(5); Part IV, section 74(4), not yet commenced.
section 85(3); Part VIII, section 139(7)

[Amended by Water Act Revocation (Legal Notice 60 of 2017) on 21 April 2017]

[Amended by Water Act Revocation (Legal Notice 60 of 2017) on 28 April 2017]
[Amended by Statute Law (Miscellaneous Amendments) Act, 2017 (Act No. 11 of 2017) on 4 May 2017]
[Amended by Water Act Commencement of Section 152 (Legal Notice 27 of 2019) on 3 May 2019]
[Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

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

Part I – PRELIMINARY

1. Short title
This Act may be cited as the Water Act.

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Water Act (Cap. 372) Kenya

2. Interpretation
In this Act, unless the context otherwise requires—

"Authority" means the Water Resources Authority established under section 11;

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

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

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

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

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

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

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

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

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

"cross-county water services provider" means a water services provider providing water services to more
than one county;

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

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

"Fund" means the Water Sector Trust Fund established in section 113;

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

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

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

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

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

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

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

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

(c) any person to whom a mining lease or mining location has been granted under the Mining Act (Cap.
306);

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Water Act (Cap. 372) Kenya

"licence" means a licence in force under this Act;

"licensee" means a water service provider licensed by the Regulatory Board under this Act;

"limits of supply", in relation to a water undertaking, means the limits within which the licensee is for the
time being authorised to supply water;

"Management Board" means the Board of the Authority established under section 14;

"management of water resources" means the development, augmentation, conservation or protection of a

water resource;

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

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

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

unincorporated;

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

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

(b) harmful or potentially harmful to—

(i) the welfare, health or safety of human beings;

(ii) any aquatic or non-aquatic life or property; or

(iii) the environment;

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

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

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

"reserve" in relation to a water resource, means that quantity and quality of water required—

(a) to satisfy basic human needs for all people who are or may be supplied from the water resource; and

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

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

(a) the water quality stipulated for the reserve;

(b) the quantity, pattern, timing, water level and assurance of in-stream flow;

(c) the physical, chemical and biological characteristics of the water:

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

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

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

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

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

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Water Act (Cap. 372) Kenya

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

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

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

"sewerage services" means the development and management of infrastructure for transport, storage,
treatment waste water originating from centralized and decentralized systems but shall not include
household sanitation facilities;

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

"state organ" has the meaning assigned in Article 260 of the Constitution;

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

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

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

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

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

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

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

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

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

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

"water resource" means any lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian
basin or other body of flowing or standing water, whether above or below the ground, and includes sea
water and transboundary waters within the territorial jurisdiction of Kenya;

"water right" means the right to have access to water through a water permit;

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

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

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

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

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

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Water Act (Cap. 372) Kenya

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

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

"water table" means—

(a) impervious granular or detrital material, the upper surface of the body of free water which fills all
openings in material that is sufficiently pervious to permit percolation; and

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

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

"water works development agencies" means the agencies of the national government established under
section 65;

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

3. Purpose of the Act

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

4. Principles
The Cabinet Secretary, the Authority, the Regulatory Board, county governments and any person
administering or applying this Act shall be guided by the principles and values set out in Articles 10, 43, 60
and 232 of the Constitution.

Part II – OWNERSHIP, USE AND MANAGEMENT OF WATER RESOURCES

5. Ownership of water resources

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

6. Regulation of the management and use of water resources

The Authority established in section 11 shall serve as an agent of the national government and regulate
the management and use of water resources.

7. Rights to water resources

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

8. National Public Water Works

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

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

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Water Act (Cap. 372) Kenya

(b) it is financed out of the national government's share of national revenue pursuant to the
provisions of the Public Finance Management Act (Cap. 412A);

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

(d) it is intended to serve a function which, by agreement between the national and county
government, has been transferred to the national government.

(2) National public water works include—

(a) water storage;

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

(c) inter-basin water transfer facilities; and

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

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

(4) Subject to the Land Act (Cap. 280) land required for national public water works may be acquired in
any manner provided by law for the acquisition of land for public purposes.

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

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

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

9. Administration of National Water Resources

Every person has the right to access water resources, whose administration is the function of the national
government as stipulated in the Fourth Schedule to the Constitution.

10. National Water Resource Strategy

(1) The Cabinet Secretary shall, within one year of the commencement of this Act and every five years
thereafter, following public participation, formulate a National Water Resource Strategy.

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

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

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

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

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

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

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

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Water Act (Cap. 372) Kenya

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

(4) The Cabinet Secretary shall—

(a) prepare and issue an annual report on the state of national water resource strategies in
Kenya; and

(b) may direct any lead agency to prepare and submit to it a report on the state of national water
resources under the administration of that lead agency.

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

Part III – REGULATION OF THE MANAGEMENT AND USE OF WATER RESOURCES

Water Resources Authority

11. Establishment of the Authority

(1) There is established the Water Resources Authority.

(2) The Authority is a body corporate with perpetual succession and a common seal and shall in its
corporate name be capable of—

(a) suing and being sued;

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

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

12. Functions of the Authority

The functions of the Authority are to—

(a) formulate and enforce standards, procedures and Regulations for the management and use of water
resources and flood mitigation;

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

(c) enforce Regulations made under this Act;

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

(e) collect water permit fees and water use charges;

(f) determine and set permit and water use fees;

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

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

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

13. Powers of the Authority

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

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Water Act (Cap. 372) Kenya

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

(a) source and receive funding for the activities of the Authority;

(b) collect, analyze and disseminate information on water resources;

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

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

(e) delegate regulatory functions to the basin water resource committees provided for under
section 25.

14. Management Board

(1) The powers and functions of the Authority shall be exercised and performed under the direction of
a Management Board, which consists of—

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

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

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

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

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

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

(g) the Chief Executive Officer.

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

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

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

15. General duties and responsibilities of the Management Board

The Management Board shall be responsible for overseeing the operations of the Authority with the goal
of—

(a) securing continuing improvements performance;

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

(c) ensuring fiscal discipline of the Authority.

16. Powers of the Management Board

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

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

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

8
Water Act (Cap. 372) Kenya

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

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

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

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

(f) delegate any of its powers; and

(g) undertake any activity necessary for the fulfilment of any of the functions of the Authority.

17. Chief Executive Officer

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

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

(a) is a citizen of Kenya;

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

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

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

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

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

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

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

(c) organization and management of the employees; and

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

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

18. Removal of the Chief Executive Officer

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

19. Employees of the Authority

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

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

9
Water Act (Cap. 372) Kenya

20. Classification of water resources and determination of quality objectives

(1) The Authority shall prescribe the criteria for classifying water resources for the purpose of
determining water resources quality objectives for each class of water resource.

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

(a) trans-boundary considerations;

(b) strategic functions served by the water resource;

(c) the use or potential for use of the water resource for inter-basin transfers;

(d) ecological functions of the water resource; and

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

(3) The Authority shall, by notice in the Gazette—

(a) classify each water resource in accordance with the prescribed classification criteria;

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

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

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

21. National Monitoring and Information System

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

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

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

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

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

22. Protection of catchment areas

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

(2) The Authority may impose such requirements or regulate or prohibit such conduct or activities,
in or in relation to the protected catchment area as the Authority may consider necessary for the
protection of the area and its water resources.

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Water Act (Cap. 372) Kenya

23. Conservation of ground water

(1) Where the Authority is satisfied that, in any area, special measures for the conservation of ground
water are necessary in the public interest for—

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

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

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

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

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

Basin Areas

24. Basin areas

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

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

25. Establishment of a basin water resources committee

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

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

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

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

26. Basin water resources committee

(1) A basin water resources committee shall consist of—

(a) not less than four and not more than seven members appointed by the Authority in
consultation with the Cabinet Secretary; and

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

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

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

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

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

11
Water Act (Cap. 372) Kenya

(c) a representative of a public benefits organisation engaged in water resources management

programmes within the basin area concerned; and

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

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

(5) Paragraphs 2, 3, 5, 6, 7, 9, 11, 12 and 13 of the First Schedule shall apply in relation to the members
and procedure of the basin water resources committee.

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

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

27. Functions of the basin water resources committees

The powers and functions of the basin water resources committee shall be to advise the Authority and
county governments, at the respective regional office, concerning—

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

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

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

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

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

(f) review of the basin area water resources management strategy;

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

(h) flood mitigation activities;

(i) information sharing between the basin area and the Authority;

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

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

28. Basin area water resources management strategy

(1) Upon the designation of a basin area, the Authority shall prescribe requirements and a time frame
for the formulation of a basin area water resources management strategy.

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

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

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

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

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

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Water Act (Cap. 372) Kenya

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

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

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

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

29. Establishment and functions of water resource users associations

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

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

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

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

National Water Harvesting and Storage Authority

30. Establishment of the National Water Harvesting and Storage Authority

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

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

31. Water Harvesting and Storage Board

(1) The powers and functions of the Water Storage Authority shall be exercised and performed under
the direction of a Water Harvesting and Storage Board which shall consist of—

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

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

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

(d) the Principal Secretary responsible for finance;

(e) five other members, who shall be appointed by the Cabinet Secretary; and

(f) a Chief Executive Officer.

(2) The Chief Executive Officer is ex officio member of the Water Storage Board with no voting rights.

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

32. Powers and functions of the Water Storage Authority

(1) The functions and powers of the Water Storage Authority shall be to—

(a) undertake on behalf of the national government, the development of national public water
works for water resources storage and flood control;

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

13
Water Act (Cap. 372) Kenya

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

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

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

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

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

(3) The Water Storage Authority shall have such other powers and functions as may be conferred or
imposed on it by this or any other Act.

33. Chief Executive officer

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

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

(a) is a citizen of Kenya;

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

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

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

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

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

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

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

(c) organization and management of the employees; and

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

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

34. Removal of the Chief Executive Officer

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

35. Employees of the Water Storage Authority

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

14
Water Act (Cap. 372) Kenya

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

Regulation of Water Rights and Works

36. Water permit

A permit is required for any of the following purposes—

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

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

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

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

37. Exemptions
(1) A permit is not required—

(a) for the abstraction or use of water, without the employment of works, from any water
resource for domestic purposes by any person having lawful access to the water resource;

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

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

(2) Subsection (1) does not apply in relation to any activity mentioned in that subsection which is
carried on in prescribed circumstances and the relevant law or regulation made under this Act
requires a permit for the carrying on of that activity in those circumstances.

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

(4) Without prejudice to the generality of subsection (3), such Regulations may—

(a) prohibit any such use of water in prescribed circumstances; or

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

(5) The provisions of this section and section 36 shall not apply in respect of the abstraction of sea
water for use in the extraction of salt.

[Act No. 11 of 2017, Sch.]

38. Unauthorized construction and use of works

(1) A person who—

(a) without a permit, constructs or employs works for a purpose for which a permit is required;
or

15
Water Act (Cap. 372) Kenya

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

commits an offence.

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

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

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

39. Easement for works

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

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

40. Procedure for obtaining a permit

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

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

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

(b) the prescribed fee.

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

(4) An application for a permit shall be the subject of public consultation and, where applicable, of
environmental impact assessment in accordance with the requirements of the Environmental
Management and Co-ordination Act (Cap. 387).

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

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

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

41. Conditions of permits

(1) A permit shall subject to subsection (2), be subject to—

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

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

16
Water Act (Cap. 372) Kenya

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

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

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

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

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

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

42. Charges for water use

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

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

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

43. Considerations for the issuance of permits

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

(a) existing lawful uses of the water;

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

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

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

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

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

(g) the strategic importance of the proposed water use;

(h) the quality of water in the water resource which may be required for the reserve; and

(i) the probable duration of the activity or undertaking for which a water use is to be authorised.

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

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

17
Water Act (Cap. 372) Kenya

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

44. Issue of permits in exceptional cases

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

(2) The Authority upon the advice of the basin water resources committee may, if in the opinion of the
Authority exceptional circumstances as provided for in subsection (1), warrant such action, grant
a permit authorising with or without conditions, the use of water from a water resource and the
construction of the works required without subjecting the application to public consultation.

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

(4) A permit granted in accordance with this section shall not in any case be in force for a period
exceeding or for periods which in the aggregate exceed, one year, or for the construction of
permanent works.

45. Permit to be linked to land or undertaking

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

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

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

(2) Where, in the opinion of the Authority—

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

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

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

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

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

18
Water Act (Cap. 372) Kenya

46. Variation or permit

(1) Whenever it is shown to the satisfaction of the Authority that, owing to natural changes, increased
demand or other cause, the use of water under a permit, or the method or point of diversion or
other manner in which the water is so used causes—

(a) inequity;

(b) a deterioration in the quality of water;

(c) a shortage of water for domestic purposes; or

(d) a shortage of water for any other purpose which in the opinion of the Authority in case of
inter-basin water transfers, should have priority, the Authority may vary the permit so as
to alter the discharge or quality of water or any other aspect of water use authorised by
the permit, or to alter the method or point of diversion or other specifications, terms or
conditions of the permit.

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

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

47. Power to require permit application or re-applications

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

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

(b) achieve equity in allocations;

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

(d) facilitate efficient management of water resources, or

(e) protect water resource quality,

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

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

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

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

(5) A preliminary allocation schedule shall become a final allocation schedule—

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

(b) if it has been amended after a successful appeal; or

19
Water Act (Cap. 372) Kenya

(c) if every appeal lodged has been dismissed.

(6) The Authority shall publish a notice in the Gazette stating that the preliminary allocation schedule
has become final and advertise the times and places where a copy of the schedule may be inspected.

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

48. Cancellation of a permit

(1) The Authority may in the case of an inter basin water transfer cancel or vary a permit if such
cancellation or variation is necessary for the accommodation of additional water users of a water
source.

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

(3) A permit holder whose permit is cancelled under this section shall be paid compensation of an
amount agreed between the permit holder, the additional water user or users and the Authority in
the case of inter basin water transfer, and any disputes arising from such compensation shall be
determined by the Water Tribunal.

49. Cancellation or variation of a permit for failure to observe terms and conditions
(1) A permit may be cancelled or varied by the Authority if the permit holder—

(a) contravenes any condition of the permit, or

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

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

50. Variation of permit following a hydrographical survey

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

51. Variation of a permit at the request of the permit holder

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

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

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

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

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

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

20
Water Act (Cap. 372) Kenya

(f) vary any other term or condition of the permit.

(2) A variation relating to—

(a) the use of water authorised by the permit; or

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

52. Abandonment of permitted activities

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

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

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

53. Surrender of permits

(1) Where a permit—

(a) is to be cancelled or varied by the Authority pursuant to this Act;

(b) has been granted erroneously or irregularly; or

(c) has been granted in contravention of the provisions of any Regulations made under this Act
with respect to the terms and conditions of such a permit,

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

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

54. Register of permits

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

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

(3) The public may access the information contained in the register on payment of the fee prescribed
by the Authority.

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

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

Ground Water

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Water Act (Cap. 372) Kenya

56. Abstraction of ground water

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

Entry on Land

57. Entry by permit holder

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

(a) upon submitting in the manner prescribed—

(i) a general description of his or her proposal;

(ii) a schedule of lands which may be affected construction and operation or any works
undertaken pursuant to the permit;

(iii) the names and addresses of the affected landholders; and

(b) upon payment of the prescribed fee,

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

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

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

(4) A permit shall not be issued under this section until the Authority has notified each landholder
concerned that an application to enter his or her land hits been made under this section.

58. Entry by the Authority

An inspector appointed by the Authority may without a warrant, enter onto any, land and inspect any
water resource located within or accessible from the land concerned, in order to take such measures as the
Authority may consider necessary for the purpose of—

(a) conserving or regulating the water resource, or preserving it from pollution or protecting the bed
over which it lies;

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

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

59. Entry by licensee

(1) An employee or agent of a licensee authorised by the licensee for the purpose may, without warrant,
enter on to any land and inspect any source of water supply which is located within or accessible
from the land concerned, in order to take such measures as the licensee may direct for the purpose
of—

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

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

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

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Water Act (Cap. 372) Kenya

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

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

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

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

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

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

60. Manner of entry

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

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

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

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

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

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

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

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

61. Powers of inspectors

(1) A permit holder or licensee, or an employee or agent of a permit holder or licensee shall, on demand
by an inspector—

(a) avail to the inspector any information within his or her knowledge relating to any inquiry
held by the inspector under this Act; and

(b) produce for inspection any licence, map plan, specification, drawing or other document or
record relating to—

(i) the permit or licence;

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

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

(2) A person who contravenes this section commits an offence.

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Water Act (Cap. 372) Kenya

62. Requirement to state name and address

(1) A person who has committed, or has been accused of committing an offence under this Act and who
—

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

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

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

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

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

Part IV – WATER SERVICES

General

63. Right to clean and safe water

Every person in Kenya has the right to clean and safe water in adequate quantities and to reasonable
standards of sanitation as stipulated in Article 43 of the Constitution.

64. National Water Services Strategy

(1) The Cabinet Secretary shall within one year of the commencement of this Act and every five years
thereafter following public participation formulate a Water Services Strategy.

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

(3) The Water Strategy shall contain among other things, details of—

(a) existing water services;

(b) the number and location of persons who are not provided with a basic water supply and basic
sewerage services;

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

(d) a resource mobilization strategy for the implementation of the plans.

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

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

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

Water Works Development Agencies

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Water Act (Cap. 372) Kenya

65. Establishment of water works development agencies

(1) The Cabinet Secretary may, by notice in the Gazette, establish one or more waterworks development
agencies and define the geographical area of jurisdiction of each such agency.

(2) The water works development agencies shall be bodies corporate with perpetual succession and a
common seal and shall have power, in their respective corporate names, to sue and to be sued and,
in the exercise and performance of their powers and functions, to do and permit all such things as
may lawfully be done or permitted by a body corporate.

66. Boards of the water works development agencies

(1) Each water works development agency shall consist of—

(a) a chairperson, who shall be appointed by the Cabinet Secretary from a county within the
basin area;

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

(c) the Chief Executive Officer.

(2) The First Schedule has effect with respect to the membership and procedure of the water works
development agencies.

67. Criteria for water works development agencies

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

68. Powers and functions of the water works development agency

The powers and functions of the water works development agency shall be to—

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

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

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

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

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

69. Handover of completed works

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

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Water Act (Cap. 372) Kenya

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

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

The Water Services Regulatory Board

70. Establishment of the Water Services Regulatory Board

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

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

71. Regulatory Board

(1) The powers and functions of the Regulatory Board shall be exercised and performed under the
direction of the Regulatory Board, which shall consist of—

(a) a chairperson appointed by the President;

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

(c) the Chief Executive Officer.

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

72. Powers and functions of the Regulatory Board

(1) The powers and functions of the Regulatory Board shall be to—

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

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

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

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

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

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

26
Water Act (Cap. 372) Kenya

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

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

(i) maintain a national database and information system on water services;

(j) establish a mechanism for handling complaints from consumers regarding the quality or
nature of water services;

(k) develop guidelines on the establishment of consumer groups and facilitate their
establishment;

(l) inspect water works and water services to ensure that such works and services meet the
prescribed standards;

(m) report annually to the public on issues of water supply and sewerage services and the
performance of relevant sectors and publish the reports in the Gazette;

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

(o) advise the Cabinet Secretary on any matter in connection with water services; and

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

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

73. Employees of the Regulatory Board

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

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

(3) The Regulatory Board may appoint such officers and other employees as may be necessary for
the exercise and performance of its powers and functions, upon such terms and conditions as the
Cabinet Secretary responsible for public service may determine upon consideration of advice from
the Salaries and Remuneration Commission.

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

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

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

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Water Act (Cap. 372) Kenya

(4) This section does not apply to the provision or abstraction of sea water for the purposes of salt
extraction.

[Act No. 11 of 2017, Sch.]

75. Register of licensed water services providers

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

(a) their names and addresses;

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

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

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

(e) any other matter prescribed in Regulations.

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

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

(4) The Regulatory Board shall develop and publish guidelines to regulate the conduct of licensed water
services providers.

76. Revocation of licence

(1) The Regulatory Board may, revoke the licence of a water services provider on any of the following
grounds—

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

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

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

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

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

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

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

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

77. Establishment of water service providers

(1) A county government shall establish water services providers.

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

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Water Act (Cap. 372) Kenya

(3) A water services provider established under this section may be a public limited liability company
established under the Companies Act (Cap. 486) or other body providing water services as may be
approved by the Regulatory Board.

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

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

78. Responsibilities of the water services provider

(1) A water services provider shall be responsible for—

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

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

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

79. Board of a water services provider

(1) A water services provider shall have a board of directors and in the case of a company, the members
of its board of directors shall be constituted in accordance with the Companies Act (Cap. 486) or any
other written law and the directors shall be nominated to serve on the board in accordance with the
company's memorandum and articles of association.

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

80. Member of the Board not to hold public office

A member of a board of directors of a water services provider shall not—

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

(b) hold office in a political party; or

(c) be a serving member of Parliament.

81. Extension of services to rural or developing areas

A water services provider may with the approval of the relevant licensing authority extend water services
to rural or developing areas.

82. Appeals to the Regulatory Board

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

(2) The Regulatory Board may on appeal either vary, reverse or confirm the decision of the water
service provider, and the Regulatory Board shall communicate its decision to the parties concerned
within fourteen days from the time the decision is made.

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Water Act (Cap. 372) Kenya

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

84. Cabinet Secretary to make Regulations

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

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

85. Provision of water services

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

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

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

(a) by a person to their employees;

(b) on the premises of an institution including a hospital, factory, school, hotel, research station
or other comparable institution, in cases where the source of supply of the water is lawfully
under the control of the institution or where the water is supplied to such institution in bulk
by a licensee;

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

(d) the provision or abstraction of sea water for the purposes of salt extraction.

[Act No. 11 of 2017, Sch.]

86. Procedure and requirements for obtaining a Iicence

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

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

(a) evidence that the applicant's board of directors complies with the standards set by the
Regulatory Board under section 79 (2);

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

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

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

(e) details of planned financial and infrastructural improvements;

(f) a proposed tariff structure; and

(g) any other information required by the Regulatory Board.

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Water Act (Cap. 372) Kenya

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

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

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

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

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

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

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

(e) the applicant or any water services provider by whom the functions authorized by the
licence are to be performed, will provide the water services authorised by the licence on a
commercial basis and in accordance with sound business principles;

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

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

87. Application for a licence subject to public consultation

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

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

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

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

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

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

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

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

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

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Water Act (Cap. 372) Kenya

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

89. Licence fees

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

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

90. Conditions of Licence

(1) A licence shall be subject to—

(a) conditions prescribed by Regulations made under this Act; and

(b) such other conditions, not inconsistent with the conditions prescribed, as the Regulatory
Board may impose in the licence or by endorsement in an instrument annexed to the licence.

(2) Under this Act, Regulations may—

(a) require the imposition of prescribed conditions in prescribed circumstances; and

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

91. Duty to provide water services

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

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

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

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

92. Consumer complaints

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

93. Public Private Partnerships

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

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

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

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Water Act (Cap. 372) Kenya

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

94. Special provisions with respect to rural areas not commercially viable
(1) Nothing in this Act shall deprive any person or community of water services on the grounds only
that provision of such services is not commercially viable.

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

(3) The measures referred to in subsection (2) shall include the development of point sources, small
scale piped systems and stand pipes which meet the standards set by the Regulatory Board and
which may be managed by the community associations, public benefits organizations or a private
person under a contract with the county government.

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

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

95. Variation of terms or conditions of a licence

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

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

96. Areas of water service

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

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

97. Clustering of areas of water service provision

(1) The Regulatory Board may, on the application of the licensees—

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

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

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

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

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

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Water Act (Cap. 372) Kenya

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

98. Variation of areas of service

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

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

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

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

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

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

99. Provision of water service outside the area of supply

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

(2) Where under this section a licensee, in this section called the "supplying licensee", is providing
water services to premises outside its area of supply, any other licensee within whose area of supply
those premises are situated may, in the absence of any agreement to the contrary, give not less than
three months' notice to the supplying licensee that the licensee is able and intends to provide water
services to the premises.

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

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

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

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

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

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

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

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Water Act (Cap. 372) Kenya

100. Supply of bulk water

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

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

(a) for the supply of water in bulk for a specific period; or

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

(3) Where it appears to the Regulatory Board that—

(a) it is expedient for—

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

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

(b) giving and taking of such a supply cannot be secured by agreement, the Regulatory Board
may, by order served on the parties, require the licensees concerned to give and take the
supply of water in bulk for such a period and on such terms as the Regulatory Board may
specify.

101. Default by a Licensee

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

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

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

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

(2) If, after inquiry, the Regulatory Board is satisfied that there has been failure on the part of the
licensee, the Regulatory Board may impose a special regulatory regime on the water services
provider for the purpose of remedying the default.

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

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

102. Special regulatory regime

(1) The Regulatory Board may, in consultation with the affected county government's executive,
impose a special regulatory regime on a licensee who persistently contravenes the conditions of a
licence or the requirements of this Act.

(2) In taking the action contemplated in subsection (1) the licensee shall be given an opportunity to
make presentations to the Regulatory Board.

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Water Act (Cap. 372) Kenya

(3) The Regulatory Board may under a special regulatory regime—

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

(b) remove privileges from the licence; or

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

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

103. Transfer of functions of Iicensee

(1) If the Regulatory Board is satisfied that, notwithstanding the imposition of measures under a
special regulatory regime, the default has not been remedied and is not likely to be remedied by the
licensee, it shall subject to the Public Finance Management Act (Cap. 412A) in consultation with
the concerned county government executive, by notice in the Gazette, order the transfer of water
services to another licensee.

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

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

104. Agreements as to protection of sources of water, etc

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

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

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

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

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

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

106. Duty to enforce Regulations on water services

(1) It shall be the duty of every county government executive to monitor and enforce the applicable
Regulations made under this Act, and any county government executive who fails to do so shall be
liable to an order by the Regulatory Board to take such action to enforce such Regulations as shall
be specified in the order.

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Water Act (Cap. 372) Kenya

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

107. Execution of works for protection of water

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

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

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

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

108. Control of trade effluent

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

(a) pollution of the environment;

(b) harm to human health;

(c) damage to the sewerage system; or

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

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

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

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

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

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

(d) any other information required by the licensee.

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

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

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

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

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Water Act (Cap. 372) Kenya

109. Sewerage services levy

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

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

110. Compulsory acquisition of land

(1) A licensee, or an applicant for a licence, who requires the compulsory acquisition of land for any of
its purposes, may apply to a county governor, or where necessary to the Cabinet Secretary, who, on
being satisfied that such compulsory acquisition is desirable, may take the steps necessary to secure
the compulsory acquisition of the land in accordance with the applicable laws.

(2) It shall be a condition of the licence that the licensee or an applicant for a licence shall, for the
purposes of subsection (1) take any necessary action to ensure the protection—

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

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

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

111. Regulatory Board to establish Information System

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

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

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

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

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

112. Annual report

Within three months after the end of each financial year, the Regulatory Board shall prepare an annual
report of its work and activities and shall cause the report to be published and publicized.

Part V – WATER SECTOR TRUST FUND

113. Establishment of the Water Sector Trust Fund

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

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Water Act (Cap. 372) Kenya

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

114. Objects of the Fund

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

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

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

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

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

115. Board of Trustees of the Fund

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

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

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

116. Functions of the Board of Trustees

(1) The powers and functions of the Board of Trustees shall be to—

(a) manage the resources of the Fund;

(b) mobilize additional resources for the Fund;

(c) formulate and implement principles, Regulations and procedures in consultation with the
national government and county governments for financing projects, including efficiency
and effectiveness of funds;

(d) implement measures to ensure the efficient and equitable sharing of the resources of the
Fund giving priority to resource allocation in—

(i) rural and urban areas where access to basic water services is below the national
average; and

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

(e) monitor the implementation of projects;

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

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

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Water Act (Cap. 372) Kenya

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

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

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

(3) The Board of Trustees of the fund shall, following public consultation, gazette the criteria for
qualification for funding from the Fund taking account of considerations of equity and may from
time to time following public consultation review the criteria.

117. Monies of the fund

(1) The monies of the Fund shall consist of—

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

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

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

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

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

(f) payable into the Fund under any Act.

(2) The Cabinet Secretary may, by Regulations following public consultation prescribe a levy to be paid
by consumers of piped water supplied by licensed water service providers, the proceeds of which
shall be paid into the Fund established under section 113.

118. Staff of the Fund

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

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

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

Part VI – DISPUTE RESOLUTION

119. Establishment of the water tribunal

(1) There is established a Water Tribunal.

(2) There shall be a chairperson of the Water Tribunal appointed by the Judicial Service Commission on
such terms and conditions as may be determined by the Judicial Service Commission.

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Water Act (Cap. 372) Kenya

120. Staff of the Water Tribunal

The staff of the Tribunal shall be appointed, removed from office or otherwise disciplined by the Judicial
Service Commission in accordance with Article 172(1)(c) of the Constitution.

121. Jurisdiction of the Tribunal

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

(2) In addition to the powers set out in subsection (1), the Tribunal shall have the power to hear and
determine any dispute concerning water resources or water services where there is a business
contract, unless the parties have otherwise agreed to an alternative dispute resolution mechanism.

122. Proceedings of the Tribunal

The Tribunal shall make Rules governing its procedures.

123. Determination of appeals and disputes

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

124. Appeals to the Land and Environment Court

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

125. Decisions binding if no appeal within thirty days

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

Part VII – FINANCIAL PROVISIONS

126. Funds of the Authority, Regulatory Board, Water Harvesting and Storage Authority
and Water Works Development Agencies
The funds of the Authority, Regulatory Board, Water Storage Authority, Water Sector Trust Fund, and
water works development agencies shall respectively consist of—

(a) monies allocated by Parliament for the purposes of the each body corporate established under this
Act;

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

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

127. Financial year

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

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Water Act (Cap. 372) Kenya

128. Annual estimates

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

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

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

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

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

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

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

129. Accounts and audit

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

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

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

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

(3) The annual accounts of the body corporate shall be prepared, audited and reported upon in
accordance with the provisions of the Constitution and the Public Audit Act (Cap. 412B).

130. Retention of charges and fees

The Authority, the Regulatory Board and the Water Storage Authority may, subject to the Public Finance
Management Act (Cap. 412A) retain in a fund managed by the respective bodies, the revenue from permit
charges, water user fees, regulatory levy, licence fees and any other authorized charges and shall use such
revenue in meeting the costs incurred in the performance of their functions.

131. Funds collected by water services providers

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

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

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

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Water Act (Cap. 372) Kenya

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

Part VIII – GENERAL PROVISIONS

133. Service of notices

(1) Any notice required to be served under this Act shall be served—

(a) by delivering it personally to the person required to be served, or, if such person is absent or
cannot be found—

(i) by leaving it at the person's usual or last known place of abode in Kenya;

(ii) by post, addressed to the person's usual or last known address in Kenya; or

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

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

(3) Any notice required to be given to a landholder may be addressed to the owner of land or premises
described in the address in respect of which the notice is given.

134. Order, etc., to be in writing

Any order, notice, consent, approval, permission, demand, objection, application, standard or other
thing authorised or required by this Act to be given, made, set, determined or issued by or to the Cabinet
Secretary, the Authority, Regulatory Board, a county government executive, a licensee or other state organ
shall be in writing.

135. Authentication of documents

(1) Any order, notice, consent, approval, demand or other document which the Authority, the
Regulatory Board, county government executive, or other state organ is authorised or required by
this Act to give, make or issue may be signed on its behalf—

(a) by the Chief Executive Officer of the relevant institution; or

(b) by any officer of the institution authorised by it in writing to sign documents of the
particular kind or to sign the particular document.

(2) Any document purporting to bear the signature of any person—

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

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

shall, for the purposes of this Act, be deemed, unless the contrary is proved, to be duly given, made
or issued on behalf of the Authority, the Regulatory Board, or other state organ as the case may be.

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Water Act (Cap. 372) Kenya

136. Permit or licence to be evidence of power or function

The production of—

(a) a permit, or a copy of a permit, certified by the Chief Executive Officer of the Authority; or

(b) a licensing certificate or copy of the licensing certificate, certified by the Chief Executive Officer of
the Regulatory Board; or

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

shall, without further proof be prima facie evidence in any proceedings of the matters and things specified
therein.

137. Protection from liability

No matter or thing done or omitted by—

(a) the Cabinet Secretary, the Authority, the Regulatory Board, or other state organ exercising powers
or functions under this Act;

(b) any person acting at the direction of the Cabinet Secretary; or

(c) a person acting at the direction of the Authority, the Regulatory Board, or a state organ shall, if the
matter or thing was done or omitted in good faith for the purpose of executing this Act or any rule,
regulation or order made under this Act, subject the person in his or her personal capacity to any
action, suit, claim or demand whatsoever.

138. Application of Act to community land

Despite anything contained in this Act, any powers and functions conferred or imposed under this Act
affecting land shall, in respect of community land, be exercised and performed subject to any written law
relating to that land.

139. Public consultation

(1) A requirement imposed by or under this Act for a person in this section referred to as the
designated person to undertake public consultation in relation to any application made, or action
proposed to be taken under this Act shall be construed as a requirement to ensure that this section
is complied with in relation to that application or action.

(2) The designated person shall publish a notice in relation to the application or proposed action—

(a) in at least one national newspaper of daily circulation; and

(b) in at least one Kenyan radio station broadcasting in that locality.

(3) The notice shall—

(a) set out a summary of the application or proposed action;

(b) state the premises at which the details of the application or proposed action may be
inspected;

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

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

(e) specify a date not earlier than thirty days after publication of the notice by which any such
comments are required be received.

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Water Act (Cap. 372) Kenya

(4) The designated person shall make arrangements for the public to obtain copies, at reasonable cost,
of documents relating to the application or proposed action which are in the possession of the
designated person.

(5) The designated person shall consider—

(a) any written comments received on or before the date specified under subsection (3)(e); and

(b) any comments whether in writing or not received at any public meeting held in relation to
the application or the proposed action at which the designated person was represented or
pursuant to any other invitation to comment.

(6) The designated person shall publish in accordance with subsection (2), notice of the fact that a copy
of the decision and the reasons for the decision in relation to the application or proposed action is
available for public inspection at the same premises as were notified under subsection (3)(b).

(7) Regulations made under this Act may require, the designated person to hold a public meeting in
relation to the application or proposed action.

140. Special powers in case of shortage of water

(1) If the Authority is satisfied that, by reason of an exceptional shortage of rain or by reason of
accident or other unforeseen circumstances, a serious deficiency of water for essential domestic
purposes exists or may occur in any area, it may by order—

(a) declare that a crisis exists; and

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

(2) A person directed by an order under this section who fails to comply with the provisions of the
order commits an offence.

(3) An order under this section may require or authorise—

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

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

(c) such other measures as the Authority may consider necessary for the giving and taking of
any such water.

(4) If a person to whom an order under this section is directed fails to comply with the order, the
Authority may direct any person to—

(a) take possession of the water supply and operate any works of the person concerned for the
drawing, diversion or use of water; and

(b) exercise the person's rights in connection with them during the period of the order, subject
to any conditions imposed by the order.

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

(6) Any payment made when undertaking the action contemplated under subsection (4), or such
proportion of it as the Authority may determine, may be recovered by the person acting under the
direction of the Authority, as a debt due from a person benefiting by the supply of water under the
order.

(7) A person who, without lawful authority, hinders or obstructs any person acting in pursuance of
an order under this section, or interferes with any works constructed or under construction in
pursuance of such an order, commits of an offence.

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Water Act (Cap. 372) Kenya

141. No warranty implied by inspection

An inspection of any works authorized to be constructed under this Act shall not be deemed to constitute
or imply any guarantee of the works constructed, or to support or justify any claim against the Authority,
the Regulatory Board, the Cabinet Secretary, a county government or a licensee in connection with any
such works.

142. Regulations
(1) The Cabinet Secretary may make Regulations with respect to any matter which by this Act is
required or permitted to be prescribed, or which is necessary or expedient to be prescribed for the
carrying out or giving effect to this Act.

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

(a) delegation by the Authority, the Board or a licensee of their respective powers and functions;

(b) abstraction of ground water and works therefore, including the licensing of borehole
constructors;

(c) construction, extension or improvement of dams and the licensing of persons carrying on
business as dam contractors;

(d) the licensing of engineers offering and other persons offering professional services in respect
of water resources or water services;

(e) requirements in respect to bottled or mineral waters;

(f) national public water works;

(g) information to be made available to the public under the Act;

(h) requirements for the keeping of records and the furnishing of information to the Authority or
the Board;

(i) the transfer of functions, assets, liabilities and staff;

(j) rain water harvesting and household water storage; or

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

(3) Regulations made under this section may create offences in respect of any contravention of the
Regulations and may for any such offence impose penalties not exceeding one million shillings or
imprisonment not exceeding two years, or both such fine and imprisonment.

(4) Regulations made under this Act shall be published in the Gazette and shall come into effect upon
publication.

143. Obstruction or pollution of watercourse or water resource

(1) A person shall not, without authority conferred under this Act—

(a) wilfully obstruct, interfere with, divert or obstruct water from any watercourse or any water
resource, or negligently allow any such obstruction, interference, diversion or abstraction; or

(b) throw, convey, cause or permit to be thrown or conveyed, any rubbish, dirt, refuse, effluent,
trade waste or other offensive matter or thing into or near to any water resource in such
manner as to cause, or be likely to cause, pollution of the water resource.

(2) A person who contravenes this section commits an offence.

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Water Act (Cap. 372) Kenya

144. Remedy of defaults

(1) Without prejudice to any other remedy or course of action, if a person contravenes any provision
under this Act, then, the Authority, the Regulatory Board, the county government executive
concerned or the licensee concerned may, by order served on the person concerned, require
that person within a reasonable time specified in the order to remedy the contravention and in
particular—

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

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

(2) Where the order in subsection (1) has not been complied with, the Authority, the Regulatory Board,
the concerned county government executive or the licensee may take such steps as are necessary
to remedy the contravention, and the expenses incurred in doing so shall be recoverable at the
instance of the Authority, the Regulatory Board, the concerned county government executive or the
licensee concerned through an application to the Tribunal.

(3) A person aggrieved by an order under this section may appeal to the Tribunal.

145. Miscellaneous offences

A person shall not—

(a) wilfully obstruct, molest or hinder any inspector or employee of a person authorised by the Cabinet
Secretary, the Authority, the Regulatory Board, a county government executive or a licensee in the
exercise or performance of his or her powers and functions under this Act;

(b) without the written permission of the Authority, Regulatory Board, or the county government
executive, knowingly or wilfully—

(i) deface, alter or remove; or

(ii) cause to be defaced, altered or removed, any documents, survey mark, water gauge, weir
or measuring device or other work, structure or approval installed with the approval of the
Authority, Regulatory Board or county government executive;

(c) wilfully hinder or interrupt, or cause to be hindered or interrupted, any permit holder, employee,
contractor or agent of a permit holder, in the lawful exercise or performance of any powers and
functions under this Act;

(d) without lawful authority, wilfully let off or discharge water from the works any permit holder so
that the permit holder loses the use of that water;

(e) without lawful authority, lay, erect or construct, or cause to be laid, erected or constructed, any
work to connect with the works of any permit holder which is capable of drawing water from that
works;

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

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

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

146. Criminal proceedings

Without prejudice to the rights of any person to bring proceedings in respect of an offence under this Act,
and subject to Article 157 of the Constitution, the Authority, the Regulatory Board, a county government

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Water Act (Cap. 372) Kenya

executive or a licensee may institute and maintain criminal proceedings in any court against any person
accused of an offence under this Act or under any Regulations or Regulations made under this Act.

147. General penalty

A person who commits an offence under this Act, or under any Regulations or made under this Act, shall,
if no other penalty is prescribed in respect of the offence, be liable to a fine not exceeding one million
shillings or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment.

Part IX – TRANSITIONAL PROVISIONS

148. Transfer of functions, assets, liability and staff from Water Resource Management
Authority
(1) All property, assets, rights, liabilities, obligations, agreements and other arrangements existing at
the commencement of this Act and vested in, acquired, incurred or entered into by or on behalf of
the Water Resources Management Authority established under the Water Act, 2002 (repealed) shall
upon commencement of this Act, be deemed to have vested in or to have been acquired, incurred
or entered into by or on behalf of the Authority to the same extent as they were enforceable by or
against the Water Resource Management Authority before the commencement of this Act.

(2) Any legal proceedings pending in any court, the Water Appeal Board or other tribunal by or against
the Water Resources Management Authority established under the Water Act, 2002 (repealed) in
respect of any matter shall continue by or against the Authority.

(3) A person who immediately before the commencement of this Act was an employee of the Water
Resources Management Authority established under the Water Act, 2002 (repealed) shall, on the
commencement of this Act, be deemed to be an employee of either the Authority or the basin water
resources boards as the case may be on terms to be determined by the relevant bodies subject to the
advice of the Salaries and Remuneration Commission.

149. Transfer of functions, assets, liability and staff from National Water Conservation and
Pipeline Corporation to National Water Harvesting and Storage Authority
(1) All property, assets, rights, liabilities. obligations, agreements and other arrangements not linked
to water services provision as provided for in section 148, existing at the commencement of this Act
and vested in, acquired, incurred or entered into by or on behalf of the National Water Conservation
and Pipeline Corporation established by the National Water Conservation and Pipeline Corporation
Order, 1988 (L.N. 270/1988) shall, upon the commencement of this Act be deemed to have vested
in or to have been acquired, incurred or entered into by or on behalf of the Water Harvesting and
Storage Authority to the same extent as they were enforceable by or against the National Water
Conservation and Pipeline Corporation before the commencement of this Act.

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

(3) A person who immediately before the commencement of this Act was an employee of the National
Water Conservation and Pipeline Corporation shall, on the commencement of this Act, be
deemed to be an employee of the National Water Harvesting and Storage Authority on terms to be
determined by the Salaries and Remuneration Commission.

150. Transfer of functions, assets, liabilities and staff from the Water Services Regulatory
Board to the Regulatory Board
(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

48
Water Act (Cap. 372) Kenya

of the Water Services Regulatory Board established by the Water Act, 2002 (repealed) shall, upon
commencement of this Act, be deemed to have vested in or to have been acquired, incurred or
entered into by or on behalf of the Regulatory Board to the same extent as they were enforceable by
or against the Water Services Regulatory Board before the commencement of this Act.

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

(3) A person who immediately before the commencement of this Act was an employee of the
Water Services Regulatory Board established under the Water Act, 2002 (repealed) shall, on the
commencement of this Act, be deemed to be an employee of the Regulatory Board on terms to be
determined by the Salaries and Remuneration Commission.

151. Transfer of functions, assets, liabilities and staff from the Water Services Trust Fund
to the Water Sector Trust Fund
(1) All property, assets, rights, liabilities, obligations, agreements and other arrangements existing
at the commencement of this Act and vested in, acquired, incurred or entered into by or on behalf
of the Water Services Trust Fund established by the Water Act, 2002 (repealed) shall, upon the
commencement of this Act, be deemed to have vested in or to have been acquired, incurred or
entered into by or on behalf of the Water Sector Trust Fund to the same extent as they were
enforceable by or against the Water Services Trust Fund before the commencement of this Act.

(2) Any legal proceedings pending in any court, the Water Appeal Board or other tribunal by or against
the Water Services Trust Fund established under the Water Act, 2002 (repealed) in respect of any
matter shall continue by or against the Water Sector Trust Fund.

(3) Any person who immediately before the commencement of this Act is an employee of the Water
Services Trust Fund established under the Water Act, 2002 (repealed) shall, on the commencement
of this Act, be deemed to be an employee of the Water Sector Trust Fund on the terms to be
determined by the Salaries and Remuneration Commission.

152. Transfer of functions, assets, liabilities and staff from water services boards to water
works development agencies
(1) Subject to the Transition to Devolved Government Act, 2012 (No. 1 of 2012) all property, assets,
rights, liabilities, obligations, agreements and other arrangements existing concerning the
operation of water services boards at the commencement of this Act and vested in, acquired,
incurred or entered into by or on behalf of the water services boards established by the Water Act,
2002 (repealed) shall, upon commencement of this Act, be deemed to have vested in or to have
been acquired, incurred or entered into by or on behalf of the water works development agencies
to the same extent as they were enforceable by or against the water services boards before the
commencement of this Act.

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

(3) A person who at the commencement of this Act is an employee of the water services boards
established under the Water Act, 2002 (repealed) shall be deployed as may be determined by the
Cabinet Secretary to the public sector institutions or to the county governments.

(4) The Cabinet Secretary will publish, in consultation with the county and public sector institutions
referred to in subsection (3), a plan of transfer of staff, assets, liabilities and contracts.

[LN 27 of 2019.]

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Water Act (Cap. 372) Kenya

153. Transfer of functions, assets, liabilities, obligations, agreements and other

arrangements to county or cross-county water service providers**
(1) All property, assets, rights, liabilities, obligations, agreements and other arrangements linked to
water service provision existing at the commencement of this Act and vested in, acquired, incurred
or entered into by or on behalf of the water services boards and the National Water Conservation
and Pipeline Corporation shall, upon commencement of this Act, be deemed to have vested in or
to have been acquired, incurred or entered into by or on behalf the county water services providers
or cross county water services providers to the same extent as they were enforceable by or against
the water services boards and the National Water Conservation and Pipeline Corporation before the
commencement of this Act.

(2) Any other public property, liabilities and contract for water services provision shall be held in trust
for the public by the water services provider subject to such terms or provisions as may be specified
in the Regulations for the exception of public property, liabilities and contracts which shall be
vested in cross-county water services providers.

(3) Revoked by L.N. 60/2017*.

[*Provided that the revocation shall not apply to the Water Appeals Board and water services boards.]

[**L.N. 59/2017: Section 153 shall not commence in so far as it relates to the water services boards.]

[LN 59 of 2017, LN 60 of 2017.]

154. Water service providers to continue to operate

The existing water services providers shall continue to operate as the county water services providers or
cross county water services providers as the case may be within the period specified in the transfer plan
published by the Cabinet Secretary.

155. Transfer of functions, assets, liability and staff from Water Appeals Board to Water
Tribunal
(1) All property, assets, rights, liabilities, obligations, agreements and other arrangements existing at
the commencement of this Act and vested, acquired, incurred or entered into by or on behalf of the
Water Appeals Board established by the Water Act, 2002 (repealed) shall upon commencement of
this Act be deemed to have vested in or to have been acquired, incurred or entered into by or on
behalf of the Water Tribunal to the same extent as they were enforceable by or against the Water
Appeals Board before the commencement of this Act.

(2) Any legal proceedings pending in the Water Appeals Board established under the Water Act, 2002
(repealed) in respect of any matter shall continue in the Water Tribunal.

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

156. Repeals, Savings and Transitional Provisions

(1) The Water Act, 2002 is repealed.

(2) The National Water Conservation and Pipeline Corporation Order, 1988 (L.N. 270/1988) is revoked.

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Water Act (Cap. 372) Kenya

(3) * Notwithstanding the repeals effected by this section—

(a) the Water Appeals Board, Water Resources Management Authority, a water services board
or a water services provider and any other body established under an enactment repealed by
this section shall be deemed to continue in being; and

(b) any person or body performing any functions under the Water Act, 2002 (repealed) shall
continue to do so, and in so doing may exercise any power vested in that person or body with
respect to the performance of those functions, until the Cabinet Secretary, by notice in the
Gazette revokes this subsection in full or in part as may be necessary.*

(4) Without prejudice to subsection (3), Regulations made under section 142(2)(i) shall require that the
transfer of functions, assets, liabilities and staff shall be completed within a period of three years
following the commencement of the Act.

(5) The provisions of the Environmental Management and Co-ordination Act (Cap. 387) relating to
water resources conservation and protection and water pollution control shall be exercised subject
to the relevant provision of this Act and only in the event that the Board has failed or neglected to
take appropriate action to exercise its powers and functions under this Act.

* [L.N. 60/2017 Revokes Section 156 (3): Provided that the revocation shall not apply to the Water
Appeals Board and water services boards, L.N. 226/2022 Section 156(3) in so far as it applies to the
Water Appeals Board.]

157. Existing water rights

A right to the use of water in any body of water, being a right existing immediately before the
commencement of this section and which was acquired—

(a) under any provision of the Water Act, 2002 (repealed);

(b) under the Water Ordinance, 1929;

(c) by specific grant, before 1st July, 1935, by or on behalf of the Government in any title under the
Government Lands Act or under the repealed Crown Lands Ordinance, 1902; or

(d) by agreement or otherwise.

shall be deemed to be a right conferred by a permit under this Act.

158. Responsibility of a county government

A county government shall subject to sections 70(1)(a) and (b), 117 and 120 of the County Governments
Act (Cap. 265)—

(a) give effect to national water services standards and conditions set by the Regulatory Board for
purposes of ensuring consumer protection; and

(b) take into consideration the requirement relating to tariffs gazetted by the Regulatory Board while
imposing tariff.

159. [Spent]

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Water Act (Cap. 372) Kenya

FIRST SCHEDULE [s. 14]

MEMBERSHIP AND PROCEDURE OF BOARDS AND COMMITTEES

1. Application of this schedule

(1) This Schedule applies to—

(a) the board of the Authority;

(b) the board of the Regulatory Board;

(c) the board of the water works development agencies;

(d) the board of Water Sector Trust Fund;

(e) the board of the National Water Harvesting and Storage Authority; and

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

(2) In this Schedule, unless the context otherwise requires—

"board" means a board to which this Schedule applies;

"Chairperson" means the Chairperson of a board, Tribunal or Committee;

"member" means a member of a board, Tribunal or committee.

2. Qualification of members
(1) In making an appointment to a board, the Tribunal or a committee, the person making the
appointment shall have regard to—

(a) Article 10 of the Constitution of Kenya on national values and principles of governance;

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

(c) the academic qualifications, professional experience, expertise, character and integrity of the
potential candidates for appointment;

(d) gender, regional and ethnic diversity; and

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

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

3. Term of office
(1) A member shall hold office for such term, not exceeding three years, as may be specified in the
instrument of appointment.

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

4. Acting chairperson
(1) A member may be appointed to act in the office of Chairperson during the illness or absence of the
Chairperson, and a member so appointed shall have all the powers and be able to carry out all the
functions of the Chairperson.

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Water Act (Cap. 372) Kenya

(2) An appointment under this paragraph may be made, and at any time revoked, by the person or body
who appointed or elected the Chairperson.

5. Terms and conditions of service

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

6. Vacancy in office of member

(1) The office of a member shall become vacant if—

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

(b) such member absents himself or herself from four consecutive meetings of the board or
committee of which reasonable notice has been given to the member, unless—

(i) the board or committee has granted the member leave to be absent from those
meetings; or

(ii) within four weeks after the last of the four meetings, the member is excused by the
board or committee for having been absent from the meetings;

(c) the member becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment
of his or her remuneration for their benefit;

(d) such member is adjudged or declared by any competent court or tribunal to be of unsound
mind; or

(e) such member is convicted of an offence punishable by imprisonment tor twelve months or
more.

(2) If the office of a member becomes vacant, the respective appointing authority shall fill the
vacancies as prescribed in this Act.

7. Disclosure of pecuniary interest

(1) A member who has a direct or indirect pecuniary interest—

(a) in a matter which is being considered, or is about to be considered, at a meeting of a board or

committee of which he or she is a member; or

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

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

(2) A disclosure to the Board or committee that the member concerned—

(a) is a member, or is in the employment, of a specified company or any other body;

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

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

shall be deemed to be a sufficient disclosure of the nature of the interest in any matter or thing
relating to that company or other body or to that person which may arise after the date of the
disclosure.

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Water Act (Cap. 372) Kenya

(3) The board or committee shall cause particulars of any disclosure made under subparagraph (1) or
(2) to be recorded in a book kept for the purpose and that book shall be open at all reasonable hours
to the inspection, free of charge, of any person.

(4) After a member has, or is deemed to have, disclosed the nature of an interest in any matter or thing
under subparagraph (1) or (2), the member shall not, unless it is otherwise determined—

(a) be present during any deliberation, or take part in any decision of the board or committee
with respect to that matter; or

(b) exercise or perform any powers or functions under this Act with respect to the subject matter
of the disclosure.

(5) A determination under subparagraph (4) may only be made—

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

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

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

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

(7) A contravention of this paragraph does not invalidate any decision of the board or committee or the
exercise or performance of any power or function under this Act.

(8) A reference in this paragraph to a meeting of a board or committee includes a reference to a

meeting of any subcommittees of the board or committee.

8. General procedure
Except as otherwise provided by or under this Act—

(a) meetings of a board or committee shall be held as often as maybe necessary for the dispatch of their
business but they shall not be less than four any financial year;

(b) a meeting of the board or committee shall be held on such date time and place as the chairperson
may decide;

(c) the chairperson shall, on the written application of one third of the members convene a special
meeting of the board or committee;

(d) unless the majority of the total membership of the board or committee otherwise agree, at least
fourteen days written notice of every meeting of the board or committee shall be given to every
member of the board or committed; and

(e) the procedure for the convening of meetings and for the conduct of business at those meetings shall
be as determined by the Chairperson.

9. Quorum
A third of the members of a board or a committee shall constitute a quorum at any meeting of the board or
committee.

10. Presiding members

The Chairperson or, in the absence of the Chairperson, the acting Chairperson or in his or her absence, a
member appointed by the members then present shall preside at a meeting of a board or committee.

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Water Act (Cap. 372) Kenya

11. Decisions
A decision supported by a majority of the votes cast at a meeting of a board or committee at which a
quorum is present shall be the decision of the board or committee.

12. Proceedings
Subject to paragraph 9, proceedings of the board or committee shall not be invalid by reason only of a
vacancy among the members.

13. Record of proceedings

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

(2) Records made for the purposes of this paragraph may be destroyed after the expiry of the period
prescribed by Regulations made under this Act.

14. First meeting

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

(2) The first meeting of a basin water resources committee shall be called by the Authority in such
manner as the Authority consider necessary.

(3) The first meeting of a water services provider shall be called by the county government establishing
it in such manner as it considers necessary.

15. Application of first schedule

This Schedule applies to the county and cross-county water services providers and the Regulatory Board
will set additional criteria.

SECOND SCHEDULE [s. 41(2)]

CONDITIONS RELATING TO CONSTRUCTION OF WORKS

1. Meaning of "authorised works"

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

2. Inspection of works during construction

Any authorised works may, if the Authority or Regulatory Board so determines, be inspected during
construction by its officers.

3. Works to be made secure

(1) Upon any inspection made under this Schedule, the Authority or Regulatory Board may order the
permit holder to make any addition or alteration which it considers necessary for the security of any
authorised works, whether completed or in the course of construction.

(2) If such an order is not complied with to the satisfaction of the Authority or Regulatory Board within
such period as it may specify, the permit authorising construction of the works may be cancelled or
modified by the Authority or Regulatory Board.

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Water Act (Cap. 372) Kenya

4. Road crossings
(1) A permit holder constructing any authorised works—

(a) shall, during the construction, keep open for safe and convenient travel all public roads and
rights of way publicly used as such, when they are crossed or interfered with by the works;
and

(b) shall, before water is admitted to the works, construct to the satisfaction of the county
government concerned or, at the option of the county government, refund to it the costs of
construction by it—

(i) a substantial bridge with proper and sufficient approaches thereto over the works; and

(ii) such railings, fences, guard posts, culverts, face-walls and other structures and
appurtenances as the county government, with the approval of the Authority or
Regulatory Board, may declare to be necessary in the public interest.

(2) All respective bridges, approaches and appurtenances shall be maintained by the permit holder, or
alternatively, at the option of the county government, by the county government at the expense of
the constructor.

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

5. Completion certificate and inspection

(1) Upon the expiration of the time limited by a permit for construction of works authorised by the
permit, or where the construction is completed before the expiration of that time, the permit holder
shall submit a completion certificate in the prescribed form.

(2) On submission of the certificate in subparagraph (1), an officer appointed for the purpose by the
Authority or Regulatory Board, may make an inspection of the works to ascertain that—

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

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

(c) agreements, if any are necessary, have been entered into for the supply of water for
utilization on lands which are not the property of the permit holder or for the drainage of
lands; and

(d) the works as constructed are of the required capacity.

(3) If construction is not completed within the time limited by the permit, a progress report shall be
submitted in lieu of a completion report, and the permit holder may apply for an extension of time.

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

6. Forfeiture of rights if works not completed within time allowed

Upon the expiration of the time set out in the permit or any extension of that time for the construction of
works authorised by the permit, the rights granted to the permit holder under the permit shall cease, and
any works constructed, erected, fixed or acquired at the date of such determination may be taken over and
operated, or disposed of, in such manner as the Authority or Regulatory Board may specify.

7. Works to be kept in repair

(1) Every permit holder shall maintain and retain his or her works in a good, proper and workman like
manner to the satisfaction of the Authority or Regulatory Board.

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Water Act (Cap. 372) Kenya

(2) Pursuant to subparagraph (1), every permit holder shall ensure that—

(a) the works at all times are of sufficient strength and capacity for the fulfilment of the
purposes for which they were constructed; and

(b) no damage occurs to any road, property or work in their vicinity.

THIRD SCHEDULE [s. 39]

EASEMENTS

1. Encumbrances
The acquisition of an easement in accordance with this Schedule shall not affect the burden or benefit of
any encumbrance on the land existing at the date of the acquisition or the liability or right of any person
in respect thereof.

2. Easement includes rights of access

(1) An easement shall include the right of access, along a route to be approved by the Authority or
Regulatory Board after consultation with the owner, to any piece of land contiguous to the water
of the permit holder in so far as may be necessary for the purpose of constructing, inspecting,
maintaining, operating or repairing the works of the permit holder and for any purpose necessary
for the effective enjoyment of the easement.

(2) The permit holder shall give reasonable notice to the occupier of the land over which the easement
is held of his or her intention to enter the land for any of the purposes mentioned in this paragraph.

3. Permit holder to avoid flooding lands and maintain canal satisfactorily

A permit holder who has acquired an easement which authorises the construction of a canal—

(a) shall take and maintain adequate measures for preventing the introduction into the canal of a
greater quantity of water than that which the canal is capable of carrying; and

(b) shall not cause damage to any land in respect of which the easement is held by permitting the
accumulation of weeds, silt or any other obstruction or nuisance which might cause flooding, or any
other damage.

4. Damage caused by works of permit holder

(1) If damage is caused, as the result of works of a permit holder to the land over which the easement
is held, the landholder may require the permit holder to construct such additional works as are
necessary, in the opinion of the Authority to prevent such damage, and the Authority may by order
require the permit holder to construct such additional works at his or her sole expense.

(2) If the permit holder fails to comply with an order of the Authority given under this paragraph, the
Authority may cancel the permit.

5. Permit holder to construct works to enable landholder to enjoy his works if interfered
with
(1) A permit holder who has acquired an easement for the construction of works on another
landholder's land which prevents the landholder passing freely over or on the land or interferes with
his or her existing works, structures or devices upon the land shall, at his or own expense, construct

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and maintain in repair, to the satisfaction of the Authority or Regulatory Board and under such
conditions as it may prescribe—

(a) such bridges and other structures and devices as shall make communication safe and
convenient; or

(b) such works, structures or devices as the Authority or Regulatory Board considers necessary to
enable the landholder to enjoy the use of any work, structure or device interfered with.

(2) Any permit holder who fails to comply with the provisions of this paragraph commits an offence.

6. Permit holder desiring easement to serve notice on landholder

(1) A permit holder claiming an easement under this Act shall serve a notice on the holder of the land
on, over or through which the permit holder desires to acquire the easement, and shall in the notice
state the following particulars, and such further particulars as may be required by Regulations made
under this Act—

(a) a description of the proposed works and a statement of their use;

(b) a statement of the quantity or discharge of water, if any, to be diverted or dealt with;

(c) a map showing clearly the nature and locality of any works or area of swamp or land to be
reclaimed, if the easement is for reclamation of a swamp or lands;

(d) a statement of the area of the land (if any) which is or will be—

(i) occupied by the works;

(ii) flooded as a result of the works;

(iii) required for the purposes of inspection and maintenance of the works;

(iv) required for the excavation or collection of material for the works, or for the deposit of
soil or material derived from the works;

(v) required for a road or roads to obtain access to the works: or

(vi) required for the control or prevention of pollution of the water to be used; and

(e) a statement of the compensation which is offered and the period of time during which the
permit holder wishes to enjoy the easement.

(2) A copy of the notice shall be sent by the permit holder to the Authority or Regulatory Board.

7. Consent of landholder to easement

If the landholder agrees to the claim for an easement, either as originally proposed or as modified by
agreement, the permit holder—

(a) shall execute a deed including the particulars of the claim as agreed and any other relevant matter;
and

(b) after the execution of the deed by the parties concerned, shall send two copies of the deed certified
by the Registrar of Titles to the Authority.

8. Application where landholder does not consent

If the landholder does not, within two months after the service of the notice provided for in paragraph
6 of this Schedule, agree to the claim for an easement or to any other matter necessary for an easement,
the permit holder may apply to the Authority, in the prescribed manner, for an easement, and shall serve
notice of such application upon the landholder.

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9. Determination of application for easement

(1) The Authority may either dismiss the claim for an easement or grant the claim with or without
modification and subject to such conditions, and to the payment of such compensation, as the
Authority shall deem just.

(2) The Authority shall notify the permit holder and the landholder of its decision.

(3) When the claim for an easement has been granted the permit holder shall embody the particulars
and other matters pertaining to an easement granted under subparagraph (1) of this paragraph
in a deed or other instrument suitable for registration, and shall tender the deed or instrument,
together with the amount of any award of compensation made, to the landholder for execution.

(4) If the landholder fails within such time as may be specified by the Authority to execute and
deliver the deed or instrument to the permit holder, the Authority may do so on his or behalf,
and thereupon the deed or instrument shall have the same effect as if it had been executed by the
landholder.

(5) The Registrar of Titles shall register the deed or instrument against the title affected, and two
copies of such deed or instrument, certified by the Registrar of Titles, shall be sent by the permit
holder to the Authority.

(6) Where an appeal has been lodged under subparagraph (2) of this paragraph, no action shall be
taken under subparagraphs (3), (4) or (5) of this paragraph until the appeal has been decided.

10. Lapse of easement

(1) An easement acquired under this Act Shall lapse—

(a) if the works authorised are not completed and the water is not utilized within one year
from the date of acquiring the easement or within such further period as the Authority may
determine; or

(b) if, at any time, substantial use is not made of the permit in accordance with the terms of the
permit for a continuous period of two years, or such longer period as the Authority may, from
time to time, determine.

(2) Upon the lapse of an easement, the Authority shall notify the Registrar of Titles, who shall, without
charge, cancel the registration of the easement against the title affected.

11. Permit holder to keep works in state of repair

(1) If any work constructed on the land of a person other than the permit holder is out of repair or
require cleaning, the permit holder or his or her agent shall, if required in writing by the landholder,
repair or clean such works within a reasonable time.

(2) If the permit holder fails to keep the works in a state of repair the landholder may carry out the
necessary repairs or cleaning and may recover the cost from the permit holder in any court of
competent jurisdiction.

(3) The repairs or cleaning under this paragraph shall not be unreasonably demanded, and, in the event
of a dispute between the parties, the Authority shall decide what constitutes reasonable repairs or
cleaning.

(4) A permit holder who allows any such works to fall into disrepair or, in the opinion of the Authority
to be in such a state as to require cleaning, shall be liable for all damage which may arise as a
consequence.

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12. Land holder may demand and obtain use of works

(1) Any landholder on, over or through whose lands an easement has been applied for or been granted
may, by application to the Authority either before or after the construction of any works, apply for
a permit to make use of such works or the proposed works for the diversion, abstraction, storage or
use of whatever water he or she may become entitled to divert, store or use under this Act.

(2) Before such a permit or authorisation is issued by the Authority—

(a) the landholder shall prove, to the satisfaction of the Authority, that the works of the permit
holder can be satisfactorily used for the purpose of the landholder and without material
detriment to the permit holder; and

(b) a proportionate cost of the works shall be paid by the landholder to the permit holder who
constructed or is constructing the works as may be agreed on between the parties or, failing
agreement, as may be determined by the Tribunal.

(3) The permit holder may require the landholder to enter into an agreement to continue to pay the
proportionate cost of maintaining the portion of the works made use of, until either party has
in writing surrendered such right of user and, in the event of disagreement, the matter shall be
decided by the Tribunal.

(4) If such works require modification to enable the landholder to enjoy their use, he or she shall,
unless the matter is otherwise agreed, pay to the permit holder—

(a) the entire cost of modifying them in the manner approved by the Authority; and

(b) the cost of constructing and maintaining such devices for apportioning the quantities of
water as the Authority may prescribe or approve.

(5) When it is proved to the satisfaction of the Authority that due to altered conditions it is just and
equitable to revise the rate of payment, the Authority shall inform the parties concerned, and,
failing agreement between such parties on any such revision of the rate of payment, the matter
shall be referred to and decided by the Tribunal.

13. Landholder may use land occupied by excavated material for own purposes
When works have been excavated by a permit holder on another person's land—

(a) any land used solely for the deposit of excavated material from the works executed shall,
notwithstanding the payment of compensation and except in the case of an easement for drainage
or reclamation, remain available to the landholder for his or her own purposes; and

(b) the landholder may remove such excavated material except that, no damage shall be done to the
works of the permit holder, nor shall the works be obstructed or interfered with by such removal.

14. Easements to be registered

The deed or other instrument creating an easement acquired under this Schedule shall be registered
against the title affected, and a plan, which shall be approved and signed by, or by the Authority of, the
Director of Surveys, shall be attached to each document granting the easement.

15. Determination of easement

(1) An easement acquired under this Act shall determine if and when the permit for the exercise of
rights under which the easement has been acquired is cancelled as provided for in this Act.

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(2) On the determination of the relevant permit, any works constructed by the permit holder on the
lands of another person shall, where the permit holder is the sole permit holder, become the
property of such other person unless removed by the permit holder—

(a) voluntarily, within two years from the date of such determination; or

(b) at the order of the Authority at the request of the other person.

16. Registration of determination or variation of easement

On the determination or variation of an easement, the Authority shall notify the landholder over whose
land the easement was granted, and the Registrar of Titles and the landholder concerned may, at the
expense of the person in whose name the easement is registered, take such action as is necessary to cause
his or her title to be freed from the easement or to record the variation, as the case may require.

FOURTH SCHEDULE [s. 56]

ABSTRACTION OF GROUND WATER

1. Application of this Schedule

This Schedule shall apply to the extraction of ground water.

2. Notice of intention to construct well

(1) A person shall not construct or begin to construct a borehole or well without having first given to
the Authority notice of his or her intention to do so.

(2) A person intending to construct a borehole or well shall apply to the Authority for a permit and
shall comply with such requirements as may be imposed by the Authority.

(3) Unless otherwise exempted, a person constructing a well shall keep a record of the progress of the
work which shall include—

(a) measurements of the strata passed through and specimens of such strata;

(b) measurements of the levels at which water was struck; and

(c) measurements of the quantity of water obtained at each level, the quantity finally obtained
and the rest level of the water.

(4) A person to whom subparagraph (2) applies shall allow any person authorized by the Authority, at
any reasonable time—

(a) to have access to the well;

(b) to inspect the well and the material excavated from it;

(c) to take specimens of such material and of water abstracted from the well; and

(d) to inspect and take copies of or extracts from the record required to be kept under this
paragraph.

(5) Where the person constructing a well on any land is not the occupier of the land, the obligation to
allow any person authorized by the Authority to exercise his or her rights under this paragraph shall
be the obligation of the occupier of the land as well as of the person constructing the well.

(6) The Authority may by notice, whether conditionally or subject to specified conditions, exempt
any person, in such circumstances as may be specified in the notice, from the operation of
subparagraphs (2) and (3).

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3. Submission of records
A person constructing a well, if required to keep records under this Part, shall, within one month of the
cessation of the construction send to the Authority—

(a) a complete copy of the record, together with the specimens referred to in the record;

(b) particulars of any test made, before such cessation of the construction, of the yield of water,
specifying—

(i) the rate of flow throughout the test and the duration of the test; and

(ii) where practicable, the water levels during the test and thereafter until the water level has
returned to its natural level;

(c) a statement of whether, in his opinion (as determined by tasting) the water is suitable for drinking
or is highly mineralized, as the case may be; and

(d) if required by the Authority, such water samples as it may consider necessary.

4. Tests on neighbouring well

(1) Where any well is being constructed within the proximity of an existing well at a distance to be
specified by the Authority, the Authority may by notice require the person constructing the well
to apply tests, to be specified in the notice, to the existing well and to supply to the Authority the
particulars of the resuIts of such tests including the rate of pumping and rest levels of water.

(2) Where the well to which the tests are to be applied is situated on the property of a person other
than the person constructing the well and the person constructing the well is unable for any reason
to apply the test, the Authority may, by notice, require the person upon whose property the existing
well is situate to apply the tests to be specified in the notice to him or her, and to supply to the
Authority the particulars of the results of such tests.

5. Contractor deemed to be constructor

Where any borehole contractor constructs a borehole for the purposes of a well on land belonging to or
occupied by any other person, the borehole contractor shall be deemed, for the purposes of this Act, to be
the person constructing the well.

6. Records may be required to be treated as confidential

(1) A person constructing a well or the owner or occupier of the land on which construction takes place
may give notice to the Authority requesting that—

(a) any copy of, or extract from, the record required to be kept under this Act; or

(b) any specimen taken or any other particulars connected with the well, be treated
confidentially.

(2) In response to such the notice mentioned in subparagraph (1), the Authority shall, if sufficient
cause has been shown, to not allow such copy, extract, specimen or other particulars, except in so
far as it contains or affords information as to water resources or supplies, to be published or shown
to any person other than a member of the Authority without the consent of the person giving the
notice.

(3) If at any time the Authority gives notice to the person constructing a well or the owner or occupier
of the land on which the construction is being done, that, in its opinion, his or her consent is
unreasonably being withheld the person may, within three months after the notice given by the
Authority, appeal to the Tribunal.

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(4) If, at the expiration of the period in the notice, no appeal has been made or, after hearing the
appeal, the Tribunal does not make an order restraining it from doing so, the Authority may
proceed as if such consent had been given.

7. Waste of ground water

A person shall not, except with the written permission of the Authority—

(a) cause any ground water to run to waste from any well, except for the purpose of testing the extent
or quality of the supply or cleaning, sterilizing, examining or repairing the well;

(b) abstract from any well water in excess of his reasonable requirements and which he cannot use in a
reasonable and beneficial manner;

(c) conduct the water from any well through any channel or conduit so that more than twenty per
cent of the water is lost between the point of appropriation and the point of beneficial use except
that, where the water from any well is conducted through channels or conduits together with water
from other sources, no person shall permit the waste of more than twenty per cent of the water in
conducting the water from the point of appropriation of the well water to the point of beneficial
use;

(d) use any water from any well for the purpose of domestic use or the watering of stock, except where
such water is carried through pipes fitted with float valves or other satisfactory means of control,
to prevent waste: Except that, where ground water interferes or threatens to interfere with the
execution or operation of underground works, whether water works or not, the Authority may, in
any particular case, by notice permit such water to waste upon such conditions, regarding quantity
and method of disposal, as the notice may specify.

8. Defective wells
(1) Any well which encounters salt water, in this Part referred to as a "defective well", shall be securely
cased, plugged or sealed off by the owner of the well, so that the salt water is confined to the strata
in which it was found, and such casing, plugging or sealing shall be done in such a manner as
effectively to prevent the salt water from escaping from the strata in which it was found into any
other water-bearing strata or on to the surface of the ground except where the Authority or the
Regulatory Board has approved the use of desalination systems to make such water potable.

(2) This paragraph shall apply to wells constructed before or after the commencement of this
paragraph.

9. Interference with defective well

Any person who re-cases or removes the plugs or seals from a defective well, or deposits, or causes or
knowingly permits the deposit of, any dirt, rubbish or other material in any such well except with the
written permission of the Authority commits an offence.

10. Application to carry out work on a defective well

(1) Before any defective well is re-cased or the plugs or removed, the owner of the well, or his duly
authorized representative, shall file with the Authority an application for permission to carry out
such re-casing or the removal of the plugs or seals.

(2) The application shall contain such information as the Authority may require in relation to—

(a) the name and address of the owner of the well;

(b) its location, depth and size;

(c) the amount and location of casing or sealing in the well;

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(d) the distance below the surface of the ground to the water level in the well;

(e) the strata penetrated;

(f) the distance from the surface of the ground to the top of the salt water stratum and the
thickness of the salt water stratum; and

(g) any other matter specified by the Authority in respect of the well.

(3) The application shall also state the methods proposed for re-casing, re-plugging or resealing of the
well.

11. Instruction to deal with defective well

The Authority, after consideration of any application under paragraph 10, may call for additional data, and
may make such investigation as it considers necessary, and if the well is found to contain salt water, shall
by order give instructions to the applicant, specifying—

(a) the work that shall be done by the owner to place it in a satisfactory condition; and

(b) the time that shall be allowed to complete the work, and may inspect such work while it is in
progress.

12. Authority may inspect the well

The Authority may on its own initiative, or upon information or complaint from any source, make an
examination of any well suspected of containing salt water, and may by order issue instructions for curing
any defects in the well.

13. Sworn statement to be submitted

(1) Upon completion of the works in pursuance of any instructions issued under this Schedule—

(a) the contractor who carries out the work: or

(b) if the work is done without a contractor, the owner of the well, shall file with the Authority a
statement sworn or affirmed specifying in detail the manner in which such work was done.

(2) The statement shall be filed within thirty days after the completion of the work.

14. Additional work on defective well

(1) Upon receipt of a statement under paragraph 13, the Authority shall determine, either from the
statement or from inspection or test, whether the work has been satisfactorily performed.

(2) If the Authority determines that the work has not been satisfactorily performed, it shall by
order issue additional instructions specifying the additional work required to place the well in a
satisfactory condition, and specifying the time for the completion of such additional work.

(3) Upon the completion of such additional work, a statement sworn or affirmed shall be filed with the
Authority as provided for in paragraph 13.

15. Contamination and pollution of ground water

Every person abstracting ground water by means of a well shall, in order to prevent contamination or
pollution of the water—

(a) effectively seal off to a sufficient depth any contaminated or polluted surface or shallow water in
rock openings or soft broken ground;

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(b) effectively seal the top of the well between the surface casing and the internal pump column, and
the suction or discharge pipe;

(c) dispose of all return or waste water by means other than by return to the well;

(d) extend the well casing to a point not less than twenty centimetres above the elevation of the
finished pump house or pump pit floor;

(e) use either welded or screw type well joints on the casing if made of metal;

(f) dispose of effluents or drainage from any household, stable factory, trade premises or other
premises in such a manner as will prevent any such effluent or drainage from reaching such seal or
ground water; and

(g) carry out such other work as the Authority may by order direct, from time to time, for the
prevention of contamination or pollution.

16. Authority may order special measures to safeguard ground water resources
If—

(a) during the construction of a well, water is encountered in an aquifer; and

(b) water from a water table or lower aquifer tends to flow from the upper aquifer to the lower aquifer;
and

(c) in the opinion of the Authority this is likely to prove detrimental to the ground water resources of
the area;

(d) the Authority may order what special measures shall be taken by the owner of the well so that the
water from the higher aquifer cannot flow to the lower aquifer.

17. Artesian wells to be cased

Every artesian well and every sub-artesian well shall be efficiently cased, capped or furnished with such
appliances as will readily and effectively arrest and prevent the flow there from over the surface of the
ground or wasting from the well through the strata through which it passes.

18. Offence and penalty

(1) A person who neglects or fails to comply with any order or requirement given or imposed on him
by or under this Schedule shall be guilty of an offence and liable on conviction to a penalty not
exceeding one hundred thousand shillings.

(2) Liability of any person under this paragraph is in addition to any liability of the person under
paragraph 18.

(3) A licensee shall pay compensation on just terms to the owner or occupier,

as the case may be, of any premises within the prescribed area in respect of—

(a) any curtailment of or injury to his legal rights by restrictions imposed by such Regulations;
and

(b) any expenses incurred by him complying with a requirement to construct and maintain any
works, or take other action, which would not, but for the provisions of this Act, lawfully have
been required,

and any disagreement as to the amount of such compensation shall be resolved and determined by
the Tribunal.

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(4) Where any person has failed to comply with a requirement notified to him and—

(a) he has not appealed against the requirement and the time for appeal has expired; or

(b) his appeal has been dismissed or the requirement has been affirmed or varied in consequence
of his appeal and he has failed to comply with the requirement as so affirmed or varied, the
licensee may, without prejudice to his right to take proceedings in respect of such failure,
execute and keep in good repair the works specified in the requirement as originally made or
as varied on appeal and may in the Tribunal recover from the owner or occupier concerned,
as a debt, expenses reasonably incurred by him in so doing.

(5) Expenses recoverable under subparagraph (4) do not include expenses incurred in respect of the
licensee may, without prejudice to his right to take proceedings in respect of such failure, execute
and keep in good repair the works specified in the requirement as originally made or as varied on
appeal and may in the Tribunal recover from the owner or occupier concerned, as a debt expenses
reasonably incurred by him in so doing.

(6) Expenses recoverable under subparagraph (4) do not include expenses incurred in respect of—

(a) works the construction of which; or

(b) action which, could not lawfully have been required otherwise than upon payment of
compensation by the licensee.

(7) Two or more licensees may combine for the purpose of making and enforcing Regulations under
this section, and the provisions of this Act shall in any such case have effect as if references therein
to a references were references to two or more such licensees acting jointly.

(8) Section 34 of the Interpretation and General Provisions Act (Cap. 2) shall not apply to any
regulation made under this section.

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