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- Is amended by 24th Annual Supplement
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LAWS OF 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 (section 11–62); Part IV (section 63–112); Part V (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 | commenced on 21 April 2017 by Legal Notice 59 of 2017. |
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), section 85(3); Part VIII, section 139(7) | not yet commenced. |
- [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]
Part I – PRELIMINARY
1. Short title
This Act may be cited as the Water Act.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—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
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
Part III – REGULATION OF THE MANAGEMENT AND USE OF WATER RESOURCES
Water Resources Authority
11. Establishment of the Authority
12. Functions of the Authority
The functions of the Authority are to—13. Powers of the Authority
14. 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—16. Powers of the Management Board
17. Chief Executive Officer
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
20. Classification of water resources and determination of quality objectives
21. National Monitoring and Information System
22. Protection of catchment areas
23. Conservation of ground water
Basin Areas
24. Basin areas
25. Establishment of a basin water resources committee
26. Basin water resources committee
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—28. Basin area water resources management strategy
29. Establishment and functions of water resource users associations
National Water Harvesting and Storage Authority
30. Establishment of the National Water Harvesting and Storage Authority
31. Water Harvesting and Storage Board
32. Powers and functions of the Water Storage Authority
33. Chief Executive officer
34. Removal of 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
Regulation of Water Rights and Works
36. Water permit
A permit is required for any of the following purposes—37. Exemptions
38. Unauthorized construction and use of works
39. Easement for works
40. Procedure for obtaining a permit
41. Conditions of permits
42. Charges for water use
43. Considerations for the issuance of permits
44. Issue of permits in exceptional cases
45. Permit to be linked to land or undertaking
46. Variation or permit
47. Power to require permit application or re-applications
48. Cancellation of a permit
49. Cancellation or variation of a permit for failure to observe terms and conditions
50. Variation of permit following a hydrographical survey
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
52. Abandonment of permitted activities
53. Surrender of permits
54. Register of permits
55. Appeals
Ground Water
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
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—59. Entry by licensee
60. Manner of entry
61. Powers of inspectors
62. Requirement to state name and address
Part IV – WATER SERVICES
General
63. Right to clean and safe water
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
Water Works Development Agencies
65. Establishment of water works development agencies
66. Boards of the water works development agencies
67. Criteria for water works development agencies
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—69. Handover of completed works
The Water Services Regulatory Board
70. Establishment of the Water Services Regulatory Board
71. Regulatory Board
72. Powers and functions of the Regulatory Board
73. Employees of the Regulatory Board
74. Licensing
75. Register of licensed water services providers
76. Revocation of licence
77. Establishment of water service providers
78. Responsibilities of the water services provider
79. Board of a water services provider
80. Member of the Board not to hold public office
A member of a board of directors of a water services provider shall not—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
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
85. Provision of water services
86. Procedure and requirements for obtaining a Iicence
87. Application for a licence subject to public consultation
88. Licence not to confer any rights of proprietorship to the licensee
89. Licence fees
90. Conditions of Licence
91. Duty to provide water services
92. Consumer complaints
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
94. Special provisions with respect to rural areas not commercially viable
95. Variation of terms or conditions of a licence
96. Areas of water service
97. Clustering of areas of water service provision
98. Variation of areas of service
99. Provision of water service outside the area of supply
100. Supply of bulk water
101. Default by a Licensee
102. Special regulatory regime
103. Transfer of functions of Iicensee
104. Agreements as to protection of sources of water, etc
105. Power of licensee to prohibit or restrict use of water
106. Duty to enforce Regulations on water services
107. Execution of works for protection of water
108. Control of trade effluent
109. Sewerage services levy
110. Compulsory acquisition of land
111. Regulatory Board to establish Information System
112. Annual report
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
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—115. Board of Trustees of the Fund
116. Functions of the Board of Trustees
117. Monies of the fund
118. Staff of the Fund
Part VI – DISPUTE RESOLUTION
119. Establishment of the water tribunal
120. Staff of the Water Tribunal
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
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—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.128. Annual estimates
129. Accounts and audit
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
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
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
136. Permit or licence to be evidence of power or function
The production of—137. Protection from liability
No matter or thing done or omitted by—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
140. Special powers in case of shortage of water
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
143. Obstruction or pollution of watercourse or water resource
144. Remedy of defaults
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.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 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
149. Transfer of functions, assets, liability and staff from National Water Conservation and Pipeline Corporation to National Water Harvesting and Storage Authority
150. Transfer of functions, assets, liabilities and staff from the Water Services Regulatory Board to the Regulatory Board
151. Transfer of functions, assets, liabilities and staff from the Water Services Trust Fund to the Water Sector Trust Fund
152. Transfer of functions, assets, liabilities and staff from water services boards to water works development agencies
153. Transfer of functions, assets, liabilities, obligations, agreements and other arrangements to county or cross-county water service providers**
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
156. Repeals, Savings and Transitional Provisions
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—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)—159. [Spent]
History of this document
31 December 2022 this version
Revised by
24th Annual Supplement
07 December 2022
Commenced by
Water Act—Commencement of Section 155
03 May 2019
04 May 2017
28 April 2017
Amended by
Water Act Revocation
21 April 2017
Amended by
Water Act Revocation
Commenced by
Water Act Commencement
23 September 2016
13 September 2016
Assented to
Cited documents 7
Act 7
1. | Land Act | 3525 citations |
2. | Companies Act | 1554 citations |
3. | County Governments Act | 1492 citations |
4. | Environmental Management and Co-ordination Act | 1097 citations |
5. | Public Finance Management Act | 678 citations |
6. | Mining Act | 155 citations |
7. | Public Audit Act | 116 citations |
Documents citing this one 249
Judgment 135
Gazette 105
Bench Bulletin 3
1. | Bench Bulletin - Issue 35 | |
2. | Bench Bulletin - Issue 37 | |
3. | Bench Bulletin - Issue 54 |
Act 2
1. | Limitation of Actions Act | 3160 citations |
2. | Irrigation Act | 22 citations |
Bill 2
1. | The Irrigation (Amendment) Bill, 2021 | |
2. | The Statute Law (Miscellaneous Amendments) Bill, 2022 |
Legal Notice 2
1. | The Stamp Duty Regulations | |
2. | The Water Services Regulations |