Annulment of ERC regulations

August 10, 2018

Owners of large residential and commercial buildings who have not installed solar water heaters have been spared possible imprisonment or fines of Kenya Shillings 1 million after Parliament annulled the Energy (Solar Water Heating) Regulations 2012 (Regulations) effected by the Energy Regulatory Commission (the Commission).

The Committee on Delegated Legislation recommended to the National Assembly that the said Regulations be annulled in their entirety on grounds that they breach Section 13 of the Statutory Instrument Act which requires the Energy Act 2006, to give express authority to the Commission to impose fines and prescribe imprisonment through regulations, and currently the Commission has not received such statutory authority.

Further, the Committee argued that the Kenya Shillings 1 million fine imposed by the Regulations contravened Section 24 (5) of the Statutory Instrument Act which limits fines payable under the Act to a maximum of Kenya Shillings 20,000 or a prison term not exceeding 6 months in default. Finally, the Committee contends that the Regulations infringe on the fundamental rights of the public of access to affordable housing.

While this is a reprieve for tenants, occupiers and homeowners who do not have to grapple with infrastructure and compliance costs for the time being, it goes without saying that the annulment of the Regulations is no good news for the renewable energy sector in the country. The regulator must now take
significant efforts and concrete steps to entrench a conducive legal environment for the enhancement and development of renewable energy projects in the country. Such measures would certainly open up the
window for continuous and unimpeded investment in the renewable energy sub-sector, which currently has contributed little to the entire energy value chain in Kenya .

MMC Africa Law shall always do its best to inform you of important developments in relation to the law and how such developments may impact on you. We trust that you will find this alert informative and useful.

Important Legal Notice: The contents of this alert are intended for general use only and should not be relied upon without

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