LEGAL AND REGULATORY BRIEF
KENYA[1]
| Country Population | Actual Generation Capacity | Deficit (in MW) | Energy’s contribution to GDP |
| 54,027,487[3] | 1407 MW [4] | 52,620. 48 MW[5] | Natural resource sectors (agriculture, mining, forestry, and energy): 42%[6] |
ENERGY MIX OVERVIEW
| Fuel Mix: Kenya’s fuel mix is largely dominated by energy sources comprising of geothermal sources, hydro and wind power all accounting for 92.3% of electricity generated in Kenya. (30.43%). Other sources include thermal (26.41%), solar (1.97%) and cogeneration[7] (0.07%)[8] |
| Installed versus Actual Generation capacity: Kenya has an installed generation capacity of 3,074.34 [9]
while the actual generated capacity is 1407 MW as of 2022. |
| Transmission Capacity (Wheeling Capacity)[10]:The transmission wheeling capacity in Kenya is 2,236 MW (as of 2015)[11], equivalent to 2, 630.59 MVA[12] |
| Electricity Access Rate: Electricity access rate in Kenya is estimated to be 76.5% as of May 2021. 91% of the urban population had access to electricity, while 62% of Kenyans had electricity access in the rural areas in the same period.[13] |
| Electricity Demand: As of June 2021, peak demand was recorded to be 1, 994 MW. 2,056.67MW as of January 2023[14].By 2030, projected demand is estimated to be 19, 201 MW[15] |
| Off-Grid/Renewable Energy Capacity and Framework: The off-grid or decentralized electricity market in Kenya is estimated to comprise 6.7 million households. The widely used technology deployed in off-grid operations are stand-alone solar PV systems with over 200, 000 recorded installments all over the country. The Kenya Off-Grid Solar Access Project (KOSAP) was initiated in 2017 to increase access to modern energy in 14 undeserved counties in Kenya[16] |
| Alternative Off-take Arrangements: Kenya Power and Lighting Company (KPLC) is the off-taker in the power market, buying electricity from all generators based on negotiated PPAs for onward transmission, distribution, and supply to consumers.[17] |
ELECTRICITY SECTOR OVERVIEW AND MODEL
Power Sector Model: Kenya’s electricity sector operates the Single-Buyer model with the KPLC being the sole off-taker of all power generated in Kenya.[18]
Utility Type Structure: The general utility for transmitting, distributing, and retailing electricity is Kenya Power and Lightning Company (KPLC), a partially state-owned company popularly referred to as Kenya Power. Kenya Power is one of the largest electric utilities in Africa connecting 7.5 million customers. Kenya operates a vertical utility structure for electricity.[19]
VALUE CHAIN DYNAMICS/ADMINISTRATION
Structure of the Value Chain: The electricity value chain is broken into generation, transmission, distribution. It should be noted that the Energy Regulation Commission oversees the value chain process and imposes bulk tariffs and charges across the value chain.
- Generation: Electricity Generation is undertaken by Kenya Electricity Generating Company (KenGen), Geothermal Development Company (GDC) and Independent Power Producers (IPPs). Through Power Purchase Agreements (PPAs), the generation companies sell power to distribution companies like state-owned KPLC and private distribution companies.
- Transmission: The role of transmission is undertaken by KETRACO; however, KPLC continues to operate the transmission and distribution infrastructure in the country being the sole off-taker of power and because both KETRACO and KPLC are licensed by the EPRA to provide transmission services.
- System Operation: The Energy Act, 2019 by virtue of section 138 (1), designates KETRACO as the System Operator in the electricity industry. KETRACO is now vested with responsibility of matching customer’s requirements/demand with electrical energy availability or supply, maintaining electric power system security and managing dispatch arrangements.[20]
- Distribution: KPLC undertakes distribution and retail supply of the electrical energy to end-users in accordance with licenses and permits issued to it by the EPRA. The retail tariffs charged for the supply of electricity are also approved by the EPRA.[21]
Electricity Market Dynamics
Institutional and Market Structures
The Energy Act 2019 establishes the structure of competitive wholesale market in Kenya where IPPs generate and supply electricity under PPAs that allow them pass through risks to the single buyer. The single buyer delivers electricity to end users under regulated prices that are cost reflective.[22]
Key Stakeholders and Regulatory Agencies
Below are the key stakeholders and agencies of Kenya’s Electricity sector:
Ministry of Energy and Petroleum (MoEP)
MoEP has the overriding function of generating policies for the growth and effective operation of Kenya’s energy sector. The core functions of the ministry Order[23] include the management and development of the National Energy policy, development of thermal power, supervision of the Rural Electrification Programme, promotion of energy security and conservation, development of hydropower and geothermal sources and promotion of renewable energy.
Energy and Petroleum Regulatory Authority (EPRA)
This was formerly called the Energy Regulatory Commission (ERC). It was recently changed to the EPRA by the newly enacted Energy Act of 2019 and all rights and duties of the ERC subsist. The EPRA has wide regulatory, monitoring, assessment, coordination, licensing, certification, inspection, audit, investigative and enforcement functions touching on energy and petroleum in Kenya. It is responsible for the economic and technical regulation of the electric power sub-sector.[24]
Independent Power Producers (IPPs)
These are private companies that are allowed to generate power and supply in bulk to KPLC.
Kenyan Energy Generation Company (KenGen)
KenGen is the principal company in Kenya specifically established for the generation of electricity. It produces electricity from hydro, geothermal, thermal and wind sources and it accounts for 60% of the overall electricity generated in Kenya. It is owned by the Government and has 30% of its shares owned by the public.
Kenya Power and Lightning Company (KPLC)
Popularly referred to as Kenya Power, the KPLC is a state-owned entity that is vested with the responsibility of transmission, distribution, and retail sales of electricity. It purchases power from KenGen and the Independent Power Producers (IPPs) through PPAs for further transmission and distribution to end-users.
Kenya Electricity Transmission Company (KETRACO)
KETRACO is a government utility that designs, constructs, plans, operates and maintains the high voltage electricity grid. In January 2022 , KETRACO was designated as the System Operator with the responsibility of giving directions necessary for the stability of network operations, optimal scheduling and dispatch of electrical energy, keeping records of the quantity and quality of electrical energy supply; and coordinating with system operators of the countries whose electric power systems are interconnected with the Kenyan system, to ensure overall efficient operations.[25]
Geothermal Development Company (GDC)
The GDC assesses geothermal resources through exploration, appraisal and steam production. It develops steam fields and sells geothermal steam to KenGen and IPPs for electricity generation.
Kenya Bureau of Standards (KEBS)
The KEBS is mandated, inter alia, to provide standardization in industry and commerce, and to assist the government or any other local authority to prepare and frame any specifications and codes of practice. KEBS is vested with key roles which include- endorsing the country’s quality infrastructure for facilitation of trade, supporting Kenya industries, and sustaining production systems.
National Environment Management Authority (NEMA)
The Authority ensures and maintains clean and healthy environment for the Kenyan people. NEMA provides environmental guidelines that individuals and corporations particularly those engaging in activities involving natural resources are required to follow for sustainability.
Rural Electrification and Renewable Energy Corporation (REREC)
The REREC took over the functions of the Rural Electrification Authority (REA) in 2019. The corporation is vested with the responsibility of performing such functions and exercising such powers relating to the oversight and management of rural electrification programme.[26]
Nuclear Power and Energy Agency (NUPEA)
This Agency is tasked to promote the operations of nuclear electricity by implementing the nuclear energy programme and undertaking research and dissemination of activities relating to the nuclear sub-sector.[27]
Kenya Renewable Energy Association (KEREA)
KEREA is an independent association that has the objective of fostering growth and development of renewable energy in Kenya. It was formed to perform the key roles of promoting the interests of members of the renewable energy industry and creating a forum for disseminating information on renewable energy development.
LEGAL, POLICY, REGULATORY AND CONTRACTUAL FRAMEWORK
Laws, Policies and Regulations: The electricity sector is majorly governed and guided by the following laws, policies, and regulations, classified into policies, primary and secondary legislation.
Policies and Plans
National Energy Policy 2018: The Kenyan Ministry of Energy formulated the national energy policy of Kenya in October 2018. The policy has the objectives of ensuring sustainable, adequate, affordable, competitive, secure, and reliable supply of energy at the least cost aimed at meeting national objectives, while protecting and conserving the environment.[28]
Kenya National Climate Change Response Strategy 2018: The purpose of this Strategy is to create a climate-change resilient Kenya through strengthening and focusing their actions on climate change adaptation and mitigation of greenhouse gases.[29]
Kenya National Electrification Strategy (KNES) 2018: In collaboration with the World Bank, the KNES was launched in 2018 to provide a roadmap to achieving universal access to electricity for all Kenyans by 2022[30].
Draft Kenya Energy Sector Whitepaper 2022: The Ministry of Energy published the Draft Kenya Energy Sector White Paper (White Paper) which is intended to guide policies and actions in Kenya’s energy sector, in July 2022. The White Paper sets out the government’s ambitious goals which include increasing power generation capacity from the current 3 GW to 100 GW by 2040. It also recommends reforms such as allocating large commercial consumers to KPLC and small domestic consumers to the Rural Electrification and Renewable Energy Corporation (REREC) and moving energy generation to clean energy sources only[31].
Primary Legislation
Environmental Management and Coordination Act 1999: As the name of the Act implies, the EMCA is responsible for setting out laws for the overall management and sustainability of the environment and its inhabitants. It makes mandatory an application for an Environmental Impact Assessment license before commencing and executing a project.[32]
Energy Act 2019 : The Energy Act 2019[33] was enacted on the 14th of March 2019 to repeal the Energy Act of 2006. Among other things, the Energy Act consolidates all laws relating to energy in Kenya, properly delineates the functions of the national levels of government in relation to energy, provides for the exploitation of renewable energy sources and regulates midstream and downstream petroleum and coal activities. It also established new energy entities and expands their mandate for proper execution of their duties.
Petroleum Act 2019: The petroleum Act[34] came into force in 2019 and repealed the Petroleum (Exploration and Production) Act. It provides laws and regulations for activities particularly in the upstream petroleum industry.
Standards Act 2019: This is an Act of Parliament to promote the standardisation of the specification of commodities and codes of practice by establishing the Kenya Bureau of Standards to oversee its enforcement.[35]
Secondary Legislation
Electric Power (Electrical Installation Work) Rules 2006: This sets out the requirements for the licensing of electricians and electrical contractors. The licensing is administered and approved by the Electrician’ and Electrical Contractors’ Licensing Panel set up in 2006.[36]
Kenya Electricity Grid Code 2008: This is the primary technical document of the Electricity Supply Industry (ESI) of Kenya. It consists of technical regulations with respect to generation, transmission, distribution, and supply of electrical energy. It is essentially a consolidation of existing standards and practices in the Kenyan ESI and is intended to provide a transparent regulatory framework.[37]
Draft Energy (Net Metering) Regulations 2022: The Energy and Petroleum Regulatory Authority (EPRA) published the Draft Energy (Net Metering) Regulations, 2022; intended to support the introduction of a net-metering regime in Kenya. The Regulations seek to enable electricity prosumers to dispose excess energy to the national grid and earn credits through net metering[38].
Incentives and Fiscal Policies
The electricity sector in Kenya provides several incentives for foreign and local investors participating in the sector.
| Legislation/Policy/Incentive | Particulars |
| Electricity expense rebate | In addition to the normal electricity tariffs, Kenya allows a 30% electricity expense rebate against taxable profits of manufacturers. However, to claim this rebate, there should be an annual increase in electricity demand, capital investment and sales revenue. The Kenya Investment Authority (KIA) was established to promote and facilitate investment by assisting investors in obtaining the licenses necessary to invest and by providing other assistance and incentives[39] |
| Corporate, income tax and VAT | Corporate tax, income tax and VAT are required to be paid in addition to a 0.1% fee attached to the Environmental Impact Assessment report required for infrastructure projects. [40] |
| Incentives | Foreign investors are treated equally as local investors in the country. To benefit from certain government incentives, foreign investors must invest a minimum of $100, 000.
Other incentives for renewable energy include”[41]
|
Contract Structures
Below are the key contracts used in the trading arrangements in the electricity sector of Kenya:
- Power Purchase Agreements: These are agreements between generating companies or IPPs and the KPLC. A PPA is typically for a duration of 20-25 years.
- Network Service Contracts: These are contracts stipulating the terms for the transmission and usage of grid infrastructure.
- Electricity Supply Contracts: These are contracts for the sale of electrical energy, transmission or distribution services, between and among licensees, and between licensees and large retail consumers. Electricity supply contracts can be standardized (mainly short-term and traded in an organised way) or not standardized (long-term and agreed bilaterally.) Standardised contracts are more likely to be traded on an exchange or a regulated marketplace. They can be simple contracts traded in the spot market. Standardised contracts are used in the market to balance energy and control reserves. Contracts that are not standardised can have a longer duration.[42]
Licensing and Permit Process: To participate in the operation of generation, exportation, importation, transmission, distribution, and retail supply of electricity in Kenya, the Energy Act 2019 provides that a license application must first be made by the licensee to the EPRA. However, the person seeking to participate in any of the listed operations will not require a license for electrical energy generated for personal use or for a capacity not exceeding one (1) megawatt.
| In the process of determining such license application, the EPRA will consider: the impact of the operation on the community; the need to protect the environment in accordance with the Environmental Management and Coordination Act (EMCA); the land use and location of the operation; the economic and financial benefits of such operation; the economic and energy policies in place; the fact that the contractual rights, privileges, liabilities and obligations of an existing licensee are not affected; the cost of the operation; the ability of the applicant to operate with due care; and the technical and financial capacity of the applicant[43]. |
Land Acquisition and Ownership Rights
| The Energy Act of 2019 promotes investment into energy through its provision that mandates the National and County Governments to facilitate the acquisition of land to carry out infrastructure projects relating to energy in accordance with the law. In essence land (public community or private) can be used to develop any energy infrastructure project in so far as prior consent has been sought and obtained to survey the land either from the landowner or the relevant person or government agency responsible for the management of the land. Where sufficient efforts have been made by a license holder to acquire land legally and reasonably but to no avail, the Cabinet Secretary may apply to the government agency responsible for the management of the subject land to acquire it compulsorily.[44] |
COMMERCIAL FRAMEWORK
Pricing: Electricity prices for electricity generation are regulated by the EPRA in Kenya. All electricity prices are determined to ensure that investors earn a reasonable return on their investments. Specifically, for transmission prices, they are determined according to the power plant’s distance from the main grid. [45]
Tariffs: The Energy Act, 2019 empowers the EPRA to set, review and adjust electric power tariffs and tariff structures and investigate tariff charges, irrespective of whether a specific application has been made for a tariff adjustment.[46]The average tariff is about $0.16/kWh, with large firms paying $0.12 and SMEs $0.22 kWh due to their significant contribution to economic development in Kenya.[47]
| Customer class | Tariff rates (kWh) |
| Domestic | $0.15 |
| Commercial | $0.15 |
| Commercial/Industrial | $0.10 |
| Streetlights | $0.75 |
Investment Benchmarks: ATC&C losses/system losses, metering, billing, and collection are established benchmarks for investment in Kenya. In Kenya, the Technical and Commercial losses (System losses) are recorded to be at 21%, however there is currently ongoing a strategic medium-term Loss Reduction Initiative Programme geared at reducing the Technical and Commercial losses in electricity transmission and distribution.[48] Furthermore, Kenya has installed in total, 15, 736 smart meters for both large and small power consumers. This is inadequate as there is still a national electrification deficiency in the country[49], therefore, it is important to have an investment initiative that can help improve the process of metering and billing/collection process.[50]
Financing Framework: Access to domestic and local financing is limited in Kenya. There is a recurring demand for debt financing to support electricity installation and metering activities. International organizations are the primary financiers of bankable power projects in the country, while some participants have engaged in self-financing and savings as a source of funding for respective projects.[51]
To overcome the cost barrier of adopting solar technology, Kenya has introduced inventive financing solutions. The country has witnessed the growth of pay-as-you-go (PAYG) models and mobile money platforms, which enable customers to pay for solar products in manageable installments, thus making the products more accessible.[52]
PROJECTS AND TENDERS
Procurement is carried out by the Supply Chain Management department of the EPRA, and it is guided by the Public Procurement Act of 2005 and the Public Procurement Regulations of 2006. The EPRA advertises tenders requesting suppliers who may be interested to supply various categories of goods or services to participate. Suppliers who submit an expression of interest are evaluated based on the criteria in the tender document and those who qualify are included in the EPRA list of suppliers over the period stated in the document.[53]
INVESTMENT CLIMATE
Investment Laws and Foreign Participation: The EPRA is empowered by the Energy Act to protect the interests of consumers, investors, and other stakeholders. This is done through the observance of the principles of fair competition in the energy sector.[54]The Kenyan Investment Promotion Act (KIPA) of 2004[55] was enacted by an Act of Parliament to promote and facilitate investment by assisting investors in obtaining the licences necessary to invest and by providing support and incentives for other related purposes. The Act provides that an applicant would be entitled to an investment certificate if:
| ● The application is complete and satisfies the applicable requirements under this Act.
● The amount to be invested by a foreign investor is at least one hundred thousand United States of America dollars or the equivalent in any currency. ● The amount to be invested by a local investor is at least one million shillings or the equivalent in another currency; and ● The investment and the activity related to the investment are lawful and beneficial to Kenya.[56] |
The Kenyan Investment Authority (KIA)[57]is established to enforce the provisions of the KIPA. In addition, the KIA has an officer from the KPLC who assists registered investors to obtain power connection and other power-related issues.
Local Content: By virtue of the Energy Act 2019, any person, who is in the process of carrying out operations of generation, exportation, importation, distribution, and transmission of electricity, must comply with the local content requirements. An annual and long-term local content plan which corresponds with the work program must be prepared and submitted to the EPRA for approval. The local content plan should ensure that first consideration is given to goods and services manufactured and provided within Kenya where the goods meet the relevant specifications as prescribed by the Kenya Bureau of Standards and any other internationally accepted standards. The local content plan should also ensure that Kenyans are given first consideration regarding employment at all levels of the value chain and adequate provisions are made to train Kenyans on the job.[58]
CHALLENGES AND OPPORTUNITIES IN THE ELECTRICITY SECTOR
| Challenges | Opportunities | Recommendations |
| Lack of adequate finance | Private participation in the electricity sector is encouraged | More Collaborations and partnerships with international organizations and private bodies for funding should be encouraged by the Government of Kenya |
| Fragmented energy access market | The energy market in Kenya has potential for being cost-effective and transparent | The Government of Kenya should encourage access to the electricity market that is fair, non-discriminatory, and transparent |
| Lack of adequate infrastructure | Locally manufactured infrastructure to facilitate access to electricity | Promoting the use of locally manufactured infrastructure for electricity operations |
Recent Investments in Kenya
2019
● InfraCo Africa in partnership with Gigawatt Global has committed to developing 20MW solar plants in two regions of Kenya[59]
● The World Bank approved amount close to $180 million risk guarantee to KenGen[60]
● Voltalia SA to build 55 MW solar park in Kenya for I Atten EnergiasRenovables[61]
● CDC invested almost $66 million into solar plant in Malindi, Kenya[62]
● Diageo committed $230 million into projects targeted at renewable energy across 11 of its brewing sites in Africa of which 3 are in Kenya [63]
● European Investment Bank and Dutch development bank FMO provide financing for the construction and operation of two solar PV parks totaling 80 MW in Kenya[64]
2020
● The Government of the United Kingdom at the African Investment Summit 2020 pledged to invest over $65 million into RE projects in Africa including the solar farms in Kenya.[65]
2022
The Emerging Africa Infrastructure Fund (EAIF) will lend $35 million to the Kesses solar generation plant in Kenya[66].
2023
In mid-March, the government signed a deal with Fortescue Future Industries (Australia), a subsidiary of Fortescue Metals Group, to construct a 300MW geothermal plant in Naivasha. The plant will provide power for “green” fertilizer production and support food security with a low-carbon footprint. The proposed plant is one of three that aims to harness energy from the main source of Kenya’s geothermal energy in the nearby Olkaria region.[67]
In February, Globeleq (UK) signed a contract with Toyota Tsusho Corporation to construct a geothermal plant near Menengai, Nakuru, Kenya. The project, which will cost US$108m and generate 35 MW, is part of a larger green investment plan between the UK and Kenya. Funding for the project was secured in December 2022 from a variety of multilateral and bilateral sources. Construction is set to begin in 2023 and is expected to be completed by 2025. [68]
Additionally, two other geothermal IPPs are currently in development in Menengai, one by Ormat and another by local firm Sosian[69].
REFORM INITIATIVES
The ongoing reforms and initiatives in the power sector of Kenya are:
In 2019, Kenya established EPRA and the REREC to take over ERC and REA, respectively. Also, the NPEA was established for operations geared at utilising nuclear power as an energy source. Furthermore, the Ministry of Petroleum and Mining signed a Head of Terms agreement for a 60, 000 – 80, 000 barrels per day oil processing facility. Thereafter the long-anticipated Lake Turkana Wind Farm, the largest wind power project in Africa came online. In addition, Kenya signed a Memorandum of Understanding with Windlab and Japan’s Eurus Energy in 2019 for the development and construction of the first large-scale hybrid solar PV and wind battery storage plants in Africa.[70]
Other ongoing reforms and initiatives include:
- KPLC on 12thMarch, 2021 launched a 33/11kV substation in Mtondia, Kilifi County to improve the quality of power supply in the area and cater for a growing customer base. The new substation comprises four distribution lines (feeders) that will enhance the stability of power supply within Kilifi County. Additionally, it will boost the capacity of the existing Kilifi substation and offer alternative supply to customers in this area to minimise outages.[71]
- KPLC has rolled out a smart metering project that will benefit 55,000 customers in the Small and Medium Enterprise sector across the country. The World Bank funded project is part of the Kenya Electricity Modernisation Project and is slated to be completed by 30th June, 2021. The smart meters are part of an Advanced Metering Infrastructure that facilitates two-way communication between the company and the customer. In case of any outage, the smart meters can communicate directly with the company’s National Contact Centre which facilitates immediate resolution and enhances efficiency as the Kenya Power teams are alerted promptly. Additionally, the smart meter also sends a notification to the customer via SMS[72]
- In October 2020, KPLC partnered with the National Government Administration Officers (NGAO) to enhance public awareness on the danger of unsafe use or accidental contact with electricity. Through the partnership, the Company is also aiming to educate the public on how to prevent electrical accidents and inform them of the channels for reporting accidents and unsafe events/occurrences in a timely manner.[73]
- In January 2022, KETRACO was designated as the national System Operator for Kenya’s electricity grid. It should be noted that this role was previously undertaken by KPLC.[74]
- In January 2022, Kenya accelerated reforms in the energy sector to lower the cost of power and invest more in renewable energy in a bid to spur economic development. Many Kenyans can attest to a significant drop in their electricity bills. Key emphasis here is that while they targeted a 15 percent reduction in power costs, the low tier customers are enjoying a reduction of up to 23 percent. Furthermore, the government is in talks with independent power producers (IPP), to further lower the cost of power[75].
- Climate Change (Amendment) Bill, which seeks to amend the current Climate Change Act No.11 of 2016 to provide a legislative framework for Kenya’s participation in domestic and international carbon markets in pursuance of Kenya’s obligations under the Paris Agreement. The proposed Climate Change Amendment Bill will establish a National Carbon Registry and provide the guiding principles governing trade in the carbon market. The Carbon Trading Bill, if enacted, will be applicable to the following carbon resources: rangelands, forests, biodiversity and genetic resources, soil, public land, private land, community land, surface, and groundwater, in addition to renewable energy including wind, solar and geothermal.
DISPUTE RESOLUTION AND JUDICIAL STRUCTURES
The Energy and Petroleum Tribunal was established by the Act for hearing and settling disputes relating to the energy and petroleum sector in accordance with the Act or any other relevant written law in Kenya.[76] It consists of seven (7) members, and it does not have jurisdiction in criminal matters. The Tribunal has original jurisdiction in matters between licensees on one hand and licensees and third parties on the other hand. It has appellate jurisdiction over decisions of the EPRA and any licensing authority. In addition, the Tribunal has the power to grant equitable reliefs, injunctions, penalties, damages, specific performance among other things.[77] It should be noted that no procedural formality is required in the proceedings of the Tribunal; however, rules of natural justice and evidence are applied.[78]
DISCLAIMER
This document titled the “Legal and Regulatory Brief” of the referenced country is not expected to form the basis of, or be construed as standard legal advice; nor should any of its contents and representations be strictly relied upon for any activities. Electricity Lawyer (EL) will not be liable for decisions whatsoever that are made based on the contents of the document.
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[1] The Glossary of Terms referenced in this brief can be found in our Glossary of Industry Terms.