Parliament has repealed the law that imposed a Sh1 million fine or one-year jail term for real estate developers and home owners who fail to install solar water heating systems in their buildings.
MPs said the penalties, introduced under regulations empowering the Energy Regulatory Commission (ERC) to vet buildings for compliance with the solar heating rules, would increase costs for landlords and tenants and undermine access to affordable housing.
National Assembly’s Committee on Delegated Legislation threw out the ERC rules on grounds that the Sh1 million fine contravenes the section of the Statutory Instruments Act (SI Act) that limits fines payable under the Act to a maximum of Sh20,000 or a prison term not exceeding six months in default.
Parliamentarians said the rules were also in contravention of the law that prevents imposition of a fine, imprisonment or other penalty without express authority provided for in the enabling legislation.
The National Assembly’s Committee on Energy said the enabling legislation, the Energy Act 2006, does not grant authority to levy fines through the regulations.
“The committee recommends that pursuant to Standing Order 210 (4)(b) and Section 15(1) of the SI Act, the Energy (Solar Water Heating) Regulations 2012 be annulled in entirety for the aforementioned reasons,” Gladys Shollei, who chairs the committee, says in a report that was tabled in Parliament on Thursday.
The ERC in 2012 gazetted the regulations requiring that premises with hot water demand exceeding 100 litres per day install solar water heating systems to cater for at least 60 per cent of the demand.
The regulations required owners of new buildings to comply at the time of publishing of the notice while existing buildings had a grace period of five years to do so. The grace period expired in May 2017.
Mrs Shollei said Parliament had acted because the regulations are meant to affect a considerable number of households, especially in urban areas and cities along with a number of institutions and are likely to impose significant costs on the community or a part of the community.
The committee argued that the implementation of the regulations would be punitive to both land lords, tenants and persons occupying own their premises as the installations are not a priority compared to other basic life requirements and ought not to be implemented at the cost of the public who are already overburdened with taxes.
“The additional cost of the solar water heaters impacts negatively on access to affordable housing,” the MPs said.
In March, the ERC announced that its inspectors had started carrying out random checks following the lapse of the September 25, 2017 deadline for installation of solar systems.
The notice affected domestic houses with at least three bedrooms, colleges and boarding schools with 20 or more students and hotels, hostels and lodges with at least four beds.
Restaurants that serve at least 20 meals a day and laundries that handle more than 20kg of clothes were also included.
The regulations prohibit Kenya Power from connecting electricity to any of the property owners that fail to install solar panels.