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Ten things to know
Investing in the African electricity sector: Kenya – ten things to know
Investing in the African electricity sector: Kenya
01 | Why consider Kenya?
Kenya is the seventh most populous country in Africa,
with an estimated 44 million people and a 16 per cent
electrification rate. The total installed generating capacity in
Kenya is 1,429MW, but the peak load is projected to grow to
about 2,500MW by 2015 and 15,000MW by 2030. To meet
this demand, Kenya’s Vision 2030 requires that installed
capacity increases gradually to 15,000MW by 2030.
Kenya has one of the most well-established power sectors
in Sub-Saharan Africa. A small but successful independent
power project (IPP) procurement programme has been
running since the mid-1990s, when Kenya Power and
Lighting Company (KPLC) started to procure power
from IPPs.
Today, the most significant development in Kenya’s power
sector is its geothermal procurement programme. Kenya
is Africa’s largest producer of geothermal power and is
continuing to invest heavily in this sector. Geothermal
energy currently accounts for 13.2 per cent (approximately
180MW) of Kenya’s total installed capacity and unexploited
geothermal resources are estimated to be between 7,000MW
to 10,000MW in the Rift Valley province alone. The
Government of the Republic of Kenya (Government) has set
an objective to reduce the country’s dependence on fossil
fuels and also hydropower, which is vulnerable to drought,
by exploiting the country’s geothermal resources. The
Government aims to increase the total electricity generating
capacity from geothermal resources to 5,000MW by 2030.
In November 2012, Kenya Electricity Generating Company
(KenGen) initiated a procurement process for a series of
geothermal power projects on a public private partnership
(PPP) basis. KenGen plans to develop up to 560MW of
geothermal power in the Olkaria field in four phases of
140MW each, on a PPP basis.
Geothermal Development Corporation (GDC) has been
exploring in the dormant Menengai crater, 200 kilometres
southwest of Nairobi. A 400MW plant is expected to be
completed by 2016, and GDC estimates that there is enough
potential geothermal capacity for a total 1,600MW.
GDC has also studied the Bogoria-Silali block in the
Central Rift Valley and estimates its potential at 3,000MW.
It has already announced plans to develop 2,000MW at that
location by 2023.
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02 | What is the structure of Kenya’s power sector?
The power sector in Kenya has been undergoing restructuring
and reform since the mid-1990s, culminating with the Energy
Act 2006.
Under the Energy Act, the Ministry of Energy is responsible
for formulation of policies through which it provides
an enabling environment to all operators and other
stakeholders in the energy sector.
As a result of the Energy Act, the Energy Regulatory
Commission (ERC) was established in 2007 as an
autonomous, independent energy sector regulator with
powers to formulate licensing procedures, issue licenses
and permits, make recommendations on regulation (to be
implemented by the Minister of Energy), formulate, enforce
and review environmental, health, safety and quality
codes and standards, set, review and adjust electricity
tariffs, approve power purchase and network service
contracts, investigate complaints between parties, protect
stakeholders interests and prepare an indicative national
energy plan. On recent IPPs, the ERC has also issued a
comfort letter to assist with the requirements of project
finance lenders.
KenGen is the leading electrical power generation company
in Kenya, supplying the country with about 80 per cent
of its electricity. KenGen is a publicly listed company and
is majority-owned by the Government. KenGen provides
electricity from numerous energy resources, such as
hydropower, wind, geothermal and thermal. KenGen owns
and operates the Olkaria I and II geothermal power plants.
KPLC is a publicly listed company that transmits,
distributes and retails electricity to customers throughout
Kenya. KPLC is also responsible for ensuring that there
is adequate line capacity to maintain power supply and
quality over the Kenyan electricity network, covering
approximately 41,486 kilometres.
Kenya Electricity Transmission Company (KETRACO) is the
Kenyan national grid operator and its main business is to
plan, design, build, operate and maintain new electricity
transmission lines and associated substations.
Investing in the African electricity sector: Kenya – ten things to know
GDC is a 100 per cent state owned special purpose
company set up to fast-track the development of geothermal
resources. Part of its mandate is to enhance geothermal
exploration in Kenya. GDC has a 10-year US$2.6 billion
exploration plan which will involve drilling 566 wells and
locating 2,336MW of geothermal energy. These potential
energy reserves have been located in 14 “high-potential”
areas and estimates of their value are around US$30 billion.
Whilst the GDC has this mandate of “exploration”, it also
tenders contracts for IPPs, such as a recent expression of
interest regarding the development of a power plant to
process 400MW of reserves in the Menengai field and an
open tender for an 800MW geothermal plant at BogoriaSilai. GDC will harness steam discovered and this will be
sold on to IPPs who will construct power plants to process it.
03 | Does the Government participate in IPPs?
The Government has not, to date, taken equity in Kenya’s
IPPs. However, as part of its PPP geothermal procurement
programme, KenGen (which is 70 per cent owned by the
Government) contemplates a joint venture structure as
one of two options to attract private sector investment in
its geothermal projects. KenGen’s expression of interest
document indicates that the private investor would be the
majority shareholder.
In relation to geothermal power projects, the Ministry of
Energy’s geo-exploration department formulates fiscal,
legal and regulatory frameworks and policies, including
setting the feed-in tariff for geothermal projects, and
conducts geological mapping, acquisition, analysis and
exploratory drilling. Licences for exploration and drilling
in relation to geothermal IPPs would have to be negotiated
and obtained through the Ministry.
The Government has performed a vital role in Kenya’s
thermal IPPs to date, issuing letters of support to project
companies and their lenders to facilitate the financing
of projects using World Bank support. This has enabled
IPPs to be financed using International Development
Association (IDA) partial risk guarantees, in conjunction
with Multilateral Investment Guarantee Agency (MIGA)
political risk cover.
04 | How are tariffs established?
Pursuant to section 45 of the Energy Act, tariff structures in
Kenya are set in accordance with the principles prescribed
by the ERC. It is a requirement that such tariffs be set in
a just and reasonable manner. As such, in performing
this function, the ERC encourages inter alia the views of
stakeholders, including KPLC.
Electricity tariffs are treated in slightly different ways,
depending on whether the tariff is in respect of the supply
of electricity by KPLC to its end users, or whether it is in
respect of the bulk supply of power from IPPs to licensed
offtakers (predominantly KPLC).
Tariffs applicable to the supply of power by KPLC
to end users
The ERC is mandated to publish a schedule of electricity
supply tariffs in a Gazette Notice, which sets out the tariffs,
charges, prices and rates to be charged by KPLC to end
users of electrical energy. The Gazette Notice also specifies
the date from which such tariffs will take effect.
In computing the fixed electricity tariff, the ERC has
established formulae for different categories of electricity
consumption, being domestic consumers; non-domestic
consumers; small commercial consumers; commercial and
industrial consumers; interruptible off-peak supplies; and
street lighting.
Tariffs applicable to the bulk supply of power by IPPs
to licensed offtakers
The tariffs at which IPPs are permitted to sell power to
licensed offtakers (which is most commonly KPLC) are
established in one of two ways. For small scale renewable
energy projects, including wind, biomass, small hydros,
geothermal, biogas, solar and municipal waste to energy
projects, with an installed capacity of less than 10MW, a
feed-in-tariff applies.
Feed-in-tariffs were established by the Ministry of Energy
Feed-in-Tariff Policy on Wind, Biomass, Small-Hydro,
Geothermal, Biogas and Solar Resource Generated
Electricity (the FiT Policy), issued by the Ministry of Energy
in March 2008 and revised on two occasions, in January
and December 2012.
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Investing in the African electricity sector: Kenya – ten things to know
Under the FiT Policy, the offtaker is required to guarantee
priority purchase, transmission and distribution of all
electricity supplied by small renewable energy projects,
with an installed capacity of up to 10MW, for a certain
period of time. However, the purchase, transmission and
distribution of electricity produced by renewable energy
projects with an installed capacity exceeding 10MW is
subject to the terms of each negotiated power purchase
agreement (PPA).
The FiT Policy provides a technology-specific methodology
of designing and establishing tariffs which takes into
account the following factors:
• the investment costs for the plant (including the costs
of feasibility studies, site development, construction
costs, and the costs of connecting to the transmission
system, including transmission lines, substations and
associated equipment)
• the operation and maintenance costs
• fuel costs, where applicable
• financing costs (including interest during construction)
and a fair return on capital invested (the availability
of debt finance will be taken into account when
establishing such costs)
• the design life of the power plant.
Further regulations have been proposed in respect of
electricity tariffs, which were published for public comment
in February 2013. It is anticipated that these regulations
will introduce positive reforms by improving the existing
tariff setting mechanism.
For thermal power projects and renewable energy projects
with an installed capacity of more than 10MW, tariffs are set
by agreement between the IPP and the licensed offtaker. The
tariffs are set out in the relevant PPA, which must, in turn,
be approved by the ERC. When reviewing and approving
tariffs for large scale grid-connected renewable energy
projects, the ERC will customarily have regard to the cost
components described above in relation to the FiT Policy.
Whilst the basis for setting tariffs on KenGen’s 560MW
geothermal procurement programme is not yet finalised,
it is understood that they will be set by the procurement
competition (ie, the successful bidders will be determined,
among other things, on the basis of the tariffs offered).
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05 | Is regulatory reform ongoing?
The electricity sector in Kenya has gradually developed
from a monopolistic system to a relatively open/competitive
system. In the past, generation, transmission and
distribution of electricity were the exclusive responsibilities
of KPLC. Today, generation of electricity has been liberalised,
with several licensed IPPs now in operation, and the
transmission function of KPLC is now vested in KETRACO.
The reforms set in motion by Sessional Paper No. 4 on
Energy, led to the enactment of the Energy Act as the main
statutory instrument in the energy sector. The enabling
provisions of the Energy Act are designed to create an
environment in which further positive reforms will be
achieved. For example, it is anticipated that the proposed
regulations in respect of electricity tariffs, published in
February 2013, will further stimulate reform in, and the
development of, the electricity sector.
Considering the key role that land rights play in the energy
sector, it is anticipated that recent reforms in Kenya’s land
laws will have a knock-on effect on the energy sector.
The Land Act (No. 6 of 2012), the Land Registration Act
(No. 3 of 2012) and the National Land Commission Act
(No. 5 of 2012) came into force on 2 May 2012. These Acts
have introduced a new land law regime, by repealing all
the previous substantive and procedural land laws. When
read together with the Constitution of Kenya, a regulatory
nexus has been established between land rights and
environmental management and conservation obligations.
All energy related activities (eg, electricity generation,
transmission and distribution) must be carried out
in a sustainable, environmentally acceptable manner.
Further, in addition to existing regulatory institutions,
the National Land Commission has been established to
oversee compliance with these new land laws.
The potential for renewable energy sources to play a
significant role within Kenya’s electricity sector has
attracted significant support from various multilateral
agencies, which results in additional pressure for reforms.
It is considered that over reliance on hydro power and the
importation of crude oil and petroleum products will, if not
mitigated, constrain economic growth in Kenya. As such,
the future of Kenya’s electricity subsector will be shaped
by a number of positive reform initiatives, all of which are
aimed at improving the sustainability of the electricity
subsector and the energy sector as a whole.
Investing in the African electricity sector: Kenya – ten things to know
06 | What is the typical risk allocation for IPPs
in Kenya?
KPLC has a well established form of PPA that has been
developed on its IPPs in Kenya to date. KPLC has entered
into PPAs with a number of IPP’s generating power from
heavy fuel oil, wind and geothermal sources.
KPLC pays for plant capacity that is made available and
electrical energy delivered by the generator (including
during commissioning). Start-up charges are also payable
where the number of requested starts (as opposed to starts
following a forced outage) exceeds an allowance specified
in the PPA. For thermal PPAs (most of which use liquid fuel),
fuel charges are payable to the generator on the basis of the
theoretical fuel demand of the plant. The fuel price paid by
the generator is passed through to KPLC under the PPA.
The calculation of capacity payments is based on the
tested capacity of the plant and then adjusted for actual
availability. Unusually for an emerging market PPA, KPLC
is not required to pay for capacity to the extent that KPLC
is unable to utilise the capacity as a result of outages in
the transmission system caused by force majeure events.
Adjustments to the capacity charge are also made for under
generation (ie, a failure of the generator to deliver the level
of power required by dispatch instructions).
The generator bears the construction risk associated with
the project. As the sole remedy for delays in completion of
construction, the generator is required to pay liquidated
damages to KPLC. Ultimately, if commercial operations are
not achieved by a longstop date established in the PPA,
KPLC may terminate the PPA. Where the start of commercial
operations is delayed as a result of a breach of the PPA
by KPLC, a failure by KPLC to provide the connection to
the transmission system or to provide sufficient load and
dispatch for plant testing, KPLC is obliged to make payment
of capacity charges on the basis of capacity that is deemed
to be available, calculated using the contracted capacity of
the plant. These deemed capacity charges are set off against
capacity charges payable by KPLC at the end of the PPA
term, so as to prevent an over-recovery of capital costs by
the generator. However, the generator has no right to claim
such revenues where the start of commercial operations
is delayed by reason of a force majeure event affecting the
transmission system.
Until now, change in law and change in tax risks have
essentially been borne by the Government under a letter
of support issued by the Ministry of Finance in respect
of each project. In the first instance, the generator is
permitted to seek approval from ERC to amend the tariff
to cover increased costs arising from changes in law or
changes in tax. Where such changes are not permitted,
or where they do not result in full compensation being
paid to the generator, the generator may seek redress
from the Government under the letter of support. Where
the Government fails to resolve the change in law/tax or
provide adequate compensation, the generator may elect
either to require the Government to acquire the plant,
or extend the term of the PPA as a way of increasing its
revenues, in order to cover increased costs arising from
changes in law/tax.
The measure of compensation payable by the Government
for the acquisition of the plant in these circumstances is
sufficient to cover project costs (including financing costs,
fees and interest) and to provide an element of return on
equity to the project sponsors.
Other political risks, such as expropriation, war or acts of
foreign enemy and riot, insurrection or civil commotion
occurring in Kenya, are also treated in the same way. In all
cases, the Government has up to 180 days to try to eliminate
the event before the generator is permitted to issue a notice
to the Government, requiring it to acquire the plant. As
to whether the Government will continue to provide such
support letters in the future remains to be seen.
It is, however, clear that the Government will not provide
sponsors or lenders with any form of guarantee.
The form of build-own-operate-transfer agreement to be
used by KenGen on its new PPP geothermal procurement
programme is, as yet, unknown. However, given the
successful track record of KPLC in implementing projects
using its form of PPA and the fact that it has been approved
by the ERC for use on numerous projects in the past, it
seems unlikely that KenGen would depart radically from
KPLC’s risk allocation. Obviously certain modifications
would be required to introduce a “transfer” component at
the end of the term.
KenGen’s invitation to interested parties to pre-qualify
for participation in its 560MW geothermal programme
describes two alternative contracting structures. The first
is a joint venture structure, under which the successful
bidders will enter into a joint venture with KenGen for
the development and financing of the project. The joint
venture company will sell power to KPLC, with steam being
supplied to it by KenGen. KenGen’s desired shareholding
is not yet clear, but it is understood that KenGen expects to
take a minority interest in the joint venture company.
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Investing in the African electricity sector: Kenya – ten things to know
The second structure is an energy conversion arrangement,
under which KenGen will toll steam through a plant that
has been developed and financed by the successful bidder,
and KenGen will offtake power which it will then sell to
KPLC under a PPA.
In both cases, KenGen has stated that it will develop
production and/or reinjection wells and guarantee the
steam supply for the duration of the project.
In an attempt to reduce costs incurred by small renewable
energy producers, the FiT Policy also provides a standardised
form of PPA for grid connected renewable generators with an
installed capacity of up to 10MW.
07 | What governmental approval is required
for PPAs?
All PPAs are required to be approved by the ERC prior to
their execution, in accordance with the provisions of the
Energy Act. The application for approval must be submitted
in such form as may be prescribed in regulations made by
the Minister for Energy.
In considering an application the ERC is required to
ensure inter alia the reasonableness of the rates and
tariffs prescribed under the PPA and the satisfaction of the
minimum criteria as set out in the Energy Act, as well as
to consider any other issues which may have a bearing on
the operations of the undertakings. In particular, the ERC
will have regard to the proof of land acquisition, access or
usage rights, grid connection plan and a full technical and
economic feasibility study.
Before the PPA is approved by the ERC or a power project
commences, the project must also be approved by the
National Environmental Management Authority of
Kenya (NEMA), which will issue an Environment Impact
Assessment (EIA) Licence, setting out the conditions
attached to such licence and relating to the project. The
purpose of this licence is to ensure and monitor an operator’s
performance with respect to environmental protection.
After approval of a PPA by the ERC, the generator must also
apply for a generation licence to be issued in accordance
with the Energy Act and the Energy (Electricity Licensing)
Regulations 2012.
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08 | What protections do foreign investors receive?
The electricity sector in Kenya operates in a liberal market
regime and there are no specific protections, incentives or
privileges for foreign investors. In particular, and perhaps
by contrast to many similar jurisdictions, the repatriation of
funds from Kenya does not require any regulatory approval.
Further, there are currently no sector specific requirements
as to Kenyan participation in projects, or mandatory
employment limits or policies in the electricity subsector.
The issuance of work permits to foreign nationals is subject
to the general provisions of the Kenyan Citizenship and
Immigration Act. It is the Government’s policy that the
economy of Kenya should be manned by trained and
competent citizens. Permits are issued to foreign nationals
with skills not available at present in the Kenyan labour
market, only on the understanding that effective training
programmes are undertaken to produce trained citizens
within a specified period.
09 | What is the scope of a typical Kenyan
security package?
Kenyan law closely follows the principles of English law.
Accordingly, the security package for an IPP would not be
dissimilar to what one might expect in other common law
jurisdictions.
Kenyan law security interests available to lenders to power
projects include:
(a) an all asset fixed and floating debenture incorporating
an assignment, by way of security, of certain licences
and contract rights;
(b)a legal charge over the immovable property on which
the project is situated; and
(c) share charges over shares in the generator, as
appropriate.
This security package would be complemented by direct
agreements with KPLC in respect of the PPA, as well
as other project agreements such as the engineering,
procurement and construction contract and the operation
and maintenance agreement.
Investing in the African electricity sector: Kenya – ten things to know
Enforcement of local law security would typically occur
either through the share charges or by the appointment of
receivers and managers under the debenture. Kenyan law
does not require the filing of a suit for foreclosure in order
to exercise any of the foregoing rights. Enforcement of the
legal charge, by contrast, would occur through a statutory
power of sale, exercisable by the relevant chargee.
Acknowledgments of assignment from the relevant
contractual counterparties will also be required, allowing
the chargee to transfer the relevant rights to a third party.
Where possible, commitments from the ERC and KPLC are
obtained prior to financial close, to ensure that a transfer
of interests under the generation licence and PPA to a third
party is permitted on an enforcement of security by the
lenders. Naturally, the third party must be reputable and
capable of performing the obligations of the generator under
the generation licence and PPA. The transfer of a generation
licence to the lenders by way of security (or to any other
party duly nominated by the lenders, pursuant to the terms
of the financing agreements) will also be pre-approved.
10 | Dispute resolution
Kenyan courts will generally recognise a contractual choice
of law. Typically, IPP transactions in Kenya select English
law and Kenyan law as the governing law of the different
project agreements, though the PPA and government letter
of support will be governed by the laws of Kenya.
Subject to a few qualifications, Kenyan courts will recognise
judgments obtained in certain other jurisdictions, including
judgments obtained in England. Notably, there is no
reciprocal enforcement of judgments obtained in the courts
of any other European jurisdiction or the USA.
Kenya is a signatory to the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards 1958 and accordingly, foreign arbitral awards are,
subject to a few qualifications, enforceable by registration
in Kenya.
Prepared by Norton Rose Fulbright LLP in conjunction with
Walker Kontos Advocates.
Kenyan law recognises the concept of trusts. Accordingly,
where a transaction involves syndicated loans, it is possible
for security interests to be granted in favour of a security
trustee. A number of Kenyan trust corporations capable of
performing this function now exist, and it is not necessary
to look outside the jurisdiction for these services.
Finally, an important factor for consideration when
establishing the scope of a security package for an IPP
in Kenya is the cost associated with stamp duty. The
Kenyan Stamp Duty Act provides that no instrument that
is, under that Act, subject to stamp duty, can be adduced
in evidence in a Kenyan court unless it is duly stamped.
Stamp duty is levied at the rate of 0.1 per cent ad valorem
and accordingly, where possible, it is important to structure
securities so that stamp duty cost is minimised, to the
extent possible.
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