Statutes

These are laws passed by the Kenyan Parliament aimed at regulating the extractives sector in Kenya.

This section contains laws that regulate the oil & gas, mining & crosscutting sector in Kenya. This also includes other laws that govern specific aspects in extractives such as environment and land.

Oil and gas related

Statute Date Law Came Into Force Overview and Application Enforcing Body Link

Petroleum (Exploration and Production) Act Cap 308 No. 19 of 1985

Commenced on the 16th of November 1985

An Act of Parliament whose purpose is to  regulate the negotiation and conclusion by the Government of petroleum agreements relating to the exploration for, development, production and transportation of, petroleum and for connected purposes.

In as much as it requires a multi-agency approach, which now includes the Parliament in its ratification of agreements, the other key organ is The Cabinet Secretary who negotiates petroleum agreements with potential contractors.

Link

Petroleum Development Fund Act CAP 426 C

Commenced on the  31st May, 1991

An Act of Parliament whose purpose is to provide for the establishment of a Petroleum Development Fund and the imposition of a petroleum development levy.

The enforcing agency is the Kenya Revenue Authority. The Commissioner General of the Kenya Revenue Authority is charged with ensuring compliance with the law and the rules and regulations.

Link

Mining Related

Statute Date Law Came Into Force Overview and Application Enforcing Body Link

The Mining Act No. 12 of 2016

Commenced on the 27th May 2016

It is an Act of Parliament that gives effect to Articles 60, 62 (1) (f), 66 (2), 69 and 71 of the Constitution in so far as they apply to minerals.

It makes provisions for prospecting, mining, processing, refining, treatment, transport and any dealings in minerals and connected purposes.

It legalizes artisanal mining and provides a national-county-community benefit sharing formulae.

The Act requires a multi-agency approach. However, key organs charged with enforcing the law are, but not limited to:

  1. The Cabinet Secretary
  2. National Mining Corporation
  3. The Mineral Rights Board
  4. Artisanal Mining Committee
  5. NEMA

Link

Gold Mines Development Loans ACT CAP 311

Commenced on the 22nd April, 1952

An Act of Parliament to provide for the granting of financial assistance for the underground development of gold mines in Kenya

Gold Mines Development Loans Board is charged with the mandate of granting of loans for purposes of development into the gold mining sector

link

Crosscutting Related

Statute Date Law Came Into Force Overview and Application Enforcing Body Link

The Constitution of Kenya, 2010

Promulgated on the 27th of August 2010.

In essence, the Constitution is to be read and enforced as a whole. For extractive sector purposes:

  • The Preamble enshrines the principle of respect of the environment as our heritage, and determination to sustain it for the benefit of future generations.
  • Article 60 of the Constitution of Kenya, 2010 sets out the principles of land policy
  • Article 62 (1) (f) provides that all minerals and mineral oils form part of public land and shall vest and be held by the national government in trust for the people of Kenya.
  • Article 66 (2) requires parliament to enact legislation to ensure that investments in property benefit local communities and their economies.
  • Article 69 sets out the obligations of the state with regards to public participation and the environment, in particular, the use of the environment in a sustainable manner, and Article 71 requires Parliament to enact legislation to ensure that investments in property benefit local communities and their economies.

The Constitution requires an individualistic and multi-agency approach. This means that it creates the arms of government and gives them their own distinct mandates and requires citizens' participation in enforcing its guiding principles.

Link.

Environmental Management and Co-Ordination (Amendment) ACT No. 5 of 2015

Commenced on the 14th January, 2000. Later amended on the 2015 and assented to on the 27th May of the same year.

It is an Act of Parliament whose purpose is to provide for the establishment of an appropriate legal and institutional framework for the management of the environment. The amendment focus on the redefinition of the coastal zones, wetlands, natural resources, among others, and does away with bodies not recognized by the new constitution.  The overall goal of the amendments is to align the new law with the Constitution 2010.

Being an establishing Statute, its main objective is establishing independent agencies, herein being;

  1. The National Environment Council
  2. National Environment Management Authority

Link

National Land Commission ACT CAP 5D

Commenced on the  2nd May, 2012

An Act of Parliament to make further provision as to the functions and powers of the National Land Commission, qualifications and procedures for appointments to the Commission; to give effect to the objects and principles of devolved government in land management and administration. The Constitution, having declared that all minerals fall under public land, therefore leaves the management of such public land on the National Land Commission.

National Land Commission

link

Water Act CAP 372 of 2001 revised in 2012

Dates of commencement of the Act vary from section to section. They are: 18th March, 2003: Sections 1 to 6, 19 to 24, 46 to 48, 51 to 78, 80 to 83, 90 to 111, 113 to 114, 29th August, 2003: Sections 7 to 18, 25 to 45, 49 to 50, 79, 84 to 89, 112.

An Act of Parliament to provide for the management, conservation, use and control of water resources. It also provides for the acquisition and regulation of rights to use water; the regulation and management of water supply and sewerage services. The importance of water to extractives and the environment cannot be over emphasized. Section 177 of the Mining Act specifically states that provisions of the Act and rights or entitlement conferred under a mineral right shall not exempt a person from compliance with the provisions of the Water Act, 2002 concerning the right to the use of water from any water resource.

The enforcing agency is The State, being the relevant Cabinet Secretary, the Water Resources Management Authority whose functions, among others are to develop principles, guidelines and procedures for the allocation of water resources.

Link

Labor Relations ACT CAP 233

Commenced on the 26th October, 2007

An Act of Parliament to consolidate the law relating to trade unions and trade disputes, to provide for the registration, regulation, management and democratization of trade unions and employers organizations or federations, to promote sound labor relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development. This is one very important law to the extractives industry because of the nature of work engagements of laborers in the extractives industry.

Enforcement of such a law is ensured by independent labor unions. The enforcement of such a law lies with the Cabinet secretary for Labor and the Labor relations court as the adjudicating body.

link

Foreign Investments Protection Act CAP 518

Commenced on the 15th December, 1964

An Act of Parliament to give protection to approved foreign investments. Kenya has entered into a number of bilateral investment treaties (BITs) that entitle investors to full protection and security of investment, no less favorable treatment than the State’s own investors, protection against unreasonable and discriminatory treatment, and in some cases, offer fair compensation in the even that investments are nationalized. This law domesticates these treaties and thus offers security to investors who may choose to invest in the extractives industry.

This law is enforced by the Cabinet Secretary for Finance, who also ensures that Certificates to the Foreign Investors are granted and are in order.

link

Income Tax Act CAP 470

Commenced 1st January, 1974

An Act of Parliament to make provision for the charge, assessment and collection of income tax; for the ascertainment of the income to be charged.  In it, corporate tax is prescribed. It details the determination of taxable income and rates of taxation.  The normal rates are 30% for resident companies and 37.5% for nonresident companies. Operators are expected to be companies for purposes of business operations and thus are required to pay income tax.

The Commissioner-General of the Kenya Revenue Authority is invested with the jurisdiction to enforce the tax code.

link

Companies Act NO. 17 of 2015

Commenced on the 15th September, 2015

An Act of Parliament to consolidate and reform the law relating to the incorporation, registration, operation, management and regulation of companies. The law is important as it guides on the creation of business entities which include operators in the extractives industry.

This law prescribes multi-agency approach in its enforcement. However, the key enforcement body is the Attorney General’s office.

Link

The Community Land (No. 27 of 2016)

Commenced on the 21st September 2016

AN ACT of Parliament to give effect to Article 63 (5)of 2016. the Constitution; to provide for the recognition, protection and registration of community land rights; management and administration of community land; to provide for the role of county governments in relation to unregistered community land and for connected purposes

The Community Land Management Committee

Link

Natural Resources (Classes of Transactions Subject to Ratification) [Act No. 41 of 2016]

 Commenced on the 4th October, 2016.

It is an Act purposed to give effect to Article 71 of the Constitution of Kenya, 2010 which provides that a transaction is subject to ratification by Parliament if it:

  1. Involves the grant of a right or concession by or on behalf of any person, including the national government, to another person for the exploitation of any natural resource in Kenya;
  2. Is entered into after the effective date (in accordance with Article 263 that is, 27th August 2010).

 

The National Parliament

Link

The Energy Act No 12 of 2006

Commenced on the 7th of July 2007

An Act of Parliament whose purpose is to amend and consolidate the law relating to energy (which includes oil, gas and coal), to provide for the establishment, powers and functions of the Energy Regulatory Commission and the Rural Electrification Authority. Part IV of the Act provides for licensing of Petroleum Business and prescription of offences while Part V provides for renewable energy, energy efficiency and conservation.

The Act establishes key agencies such as the Energy Regulatory Commission and the Rural Electrification Authority whose mandate is to ensure enforcement and compliance with the law.

Link

Our database is continuously updated

if you are aware of publicly available information that is not included, we would be grateful to be notified at info@extractives-baraza.com

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