Water Rights and Borehole Ownership in Kenya: Legal Guide

Understanding Water Rights in Kenya

Water is a vital resource, and in Kenya, its ownership and use are governed by a complex legal framework. The concept of water rights refers to the legal entitlements to use water from a particular source, whether surface water (rivers, lakes) or groundwater (boreholes, wells). Understanding these rights is essential for anyone planning to drill a borehole or abstract water for any purpose.

In Kenya, water is a public resource. The Constitution of Kenya 2010 (Article 62) states that all water resources are held in trust by the national government for the benefit of the people. This means that no individual or entity has absolute ownership of water; rather, they have the right to use it, subject to regulation and licensing.

The primary legislation governing water rights is the Water Act 2016, which repealed the earlier Water Act of 2002. The Act establishes the Water Resources Authority (WRA) as the lead agency for water resources management, including the issuance of permits for water abstraction. It also integrates environmental considerations and devolves some functions to county governments.

This guide will help you navigate the legal landscape, clarify your rights as a borehole owner, and ensure you comply with all relevant laws.

The Legal Framework: Constitution and Water Act 2016

The legal basis for water rights in Kenya is found in two key documents: the Constitution of Kenya 2010 and the Water Act 2016.

Constitution of Kenya 2010

• Article 62 — Declares that all water resources are held in trust by the national government.
• Article 43 — Guarantees the right to clean and safe water in adequate quantities (the right to water).
• Article 69 — Obligates the state to ensure sustainable exploitation, utilisation, management, and conservation of water resources.
• Schedule 4 — Distributes functions between national and county governments, with water resources management being a national function, while water services (supply and sanitation) are county functions.

Water Act 2016

The Water Act 2016 operationalises the constitutional provisions and establishes a comprehensive regulatory framework. Key provisions include:

• Section 25 — Prohibits any person from abstracting water without a permit from the WRA, except for domestic use from a well or borehole with a capacity of less than 5 m³/day (this exemption is rarely applicable for boreholes).
• Section 26 — Sets out the requirements for permit applications, including hydrogeological assessments and environmental considerations.
• Section 28 — Empowers the WRA to impose conditions on permits, including abstraction limits, flow meters, and reporting obligations.
• Section 34 — Provides for the transfer of water rights (with WRA approval).
• Section 76 — Establishes penalties for offences, including fines and imprisonment.

In addition to the Water Act, other laws may apply, such as the Environmental Management and Coordination Act (EMCA, 1999) for environmental impact assessments, and county government bylaws for local regulations.

Groundwater vs Surface Water: Different Rules

While both groundwater and surface water are public resources, the legal framework distinguishes between them in terms of management and ownership.

For borehole owners, the key takeaway is that groundwater is heavily regulated, and you cannot abstract water from a borehole without a valid permit. The permit is your legal right to use the groundwater.

Land Ownership vs Water Rights

A common misconception is that owning land automatically gives you the right to the water beneath it. This is not the case in Kenya. The law clearly separates land ownership from water rights.

Under the Water Act 2016, water is a public resource. The fact that you own land does not grant you any automatic right to abstract groundwater. Instead, you must apply for a water abstraction permit from the WRA, just like any other person.

This principle is reinforced by the Constitution, which vests all water resources in the national government as a public trust. The government holds the water in trust for the people and is responsible for its sustainable management and allocation.

However, landowners do have preference in the allocation of water from beneath their land, provided they meet the requirements for a permit. In practice, this means that if you own land, you are more likely to be granted a permit for domestic or agricultural use, provided the resource is available and the application is properly submitted.

Borehole Ownership: Who Owns the Borehole?

While you cannot own the water, you can own the borehole infrastructure—the physical structure, casing, pump, and equipment. The borehole is considered a fixture on your land, and as the landowner, you have ownership of the borehole structure.

However, ownership of the borehole does not give you the right to abstract water without a permit. The permit is separate from the physical borehole. You could own a borehole but not have a valid permit, which would make the abstraction illegal.

When a borehole is transferred as part of a property sale, the water abstraction permit does not automatically transfer. The new owner must apply to the WRA to transfer the permit into their name, or apply for a new permit. This is an important consideration in property transactions.

Additionally, if the borehole is abandoned or falls into disuse, the WRA may require its proper sealing to prevent contamination of the aquifer. The borehole owner is responsible for the costs of sealing.

Water Abstraction Permits: Your Legal Licence

The water abstraction permit is the legal document that grants you the right to abstract a specified volume of water from a borehole. It is issued by the Water Resources Authority (WRA) and is subject to conditions.

Key elements of a water abstraction permit:

• Permit holder — The individual or entity authorised to abstract water.
• Source — The specific borehole or water source.
• Abstraction volume — The maximum volume allowed per day, month, or year.
• Purpose — The intended use (domestic, agricultural, commercial, industrial).
• Conditions — Requirements such as installing a flow meter, submitting annual returns, and complying with water quality standards.
• Duration — Typically valid for 5 years, renewable.

To obtain a permit, you must submit an application to the WRA, accompanied by a hydrogeological report, a site plan, and proof of land ownership or consent from the landowner. The WRA may also require an environmental impact assessment (EIA) for larger projects.

Transfer and Sale of Water Rights

Water rights (abstraction permits) are generally transferable, but only with the approval of the WRA. The transfer of a permit may occur in several situations:

• Property sale — When a property with a borehole is sold, the permit does not automatically transfer. The new owner must apply to the WRA for the transfer of the permit, or apply for a new one.
• Change of use — If the intended use changes (e.g., from domestic to commercial), a new permit or an amendment is required.
• Lease or rental — If a borehole is leased to another party, the permit holder remains responsible, but the WRA must be notified.

The WRA will assess the proposed transfer and ensure that it does not harm the resource or other users. There may be fees associated with the transfer.

It is also possible to trade water rights in some circumstances, but this is subject to strict regulation and is generally limited to commercial operations. The Water Act 2016 allows for water trading, but the mechanisms are still being developed. For most borehole owners, trading is not relevant.

Disputes and Enforcement

Disputes over water rights can arise between users, between a user and the regulator, or between different levels of government. Common types of disputes include:

• Competing abstractions — Two boreholes abstracting from the same aquifer, causing one to dry up or reduce yield.
• Permit violations — A user exceeding their permitted abstraction or abstracting without a permit.
• Pollution — Contamination of groundwater affecting downstream users.
• Land access — Disputes over access to a borehole or the right to drill through adjacent land.

The WRA has the primary responsibility for enforcement of the Water Act. It can issue orders, impose fines, and in serious cases, revoke permits. County governments may also have enforcement powers under their by-laws.

If a dispute arises, the first step is usually to engage the WRA to mediate. If mediation fails, the dispute may be referred to the Water Tribunal, a specialised body established under the Water Act to hear water-related disputes. Further appeals can be made to the High Court.

Key Takeaways for Borehole Owners

To summarise, here are the most important legal points for borehole owners in Kenya:

• Water is a public resource — You cannot own water; you can only obtain a permit to use it.
• Permit required — A water abstraction permit from the WRA is required for all boreholes except those used exclusively for domestic purposes with abstraction less than 5 m³/day (rare).
• Land ownership does not grant water rights — You must apply for a permit, even on your own land.
• Permit conditions must be followed — Adhere to abstraction limits, install a flow meter, and submit annual returns.
• Transfer of ownership — When selling property with a borehole, ensure the permit is transferred or the new owner obtains a new one.
• Compliance is essential — Non-compliance can lead to fines, imprisonment, and sealing of the borehole.
• Seek professional help — Navigating the legal and regulatory landscape can be complex. Engage a reputable company like WaterLink Limited to handle all compliance aspects.

By understanding and complying with water rights and regulations, you can enjoy the benefits of your borehole without legal complications.

How WaterLink Limited Secures Your Legal Rights

WaterLink Limited has over 30 years of experience helping clients navigate the legal and regulatory landscape of borehole drilling in Kenya. Our comprehensive service ensures that your water rights are fully protected:

• Expert legal guidance — We have a dedicated compliance team that understands the Water Act 2016, NEMA regulations, and county bylaws.
• Permit application support — We handle the entire process: hydrogeological surveys, document preparation, submission to WRA, and follow-up.
• EIA management — If your project requires an environmental impact assessment, we coordinate with accredited experts to prepare and submit the required reports.
• County liaison — We engage with county governments on your behalf to obtain any necessary drilling permits and approvals.
• Borehole registration — After completion, we ensure your borehole is properly registered with the WRA, as required by law.
• Ongoing compliance — We offer annual maintenance packages that include flow meter checks, annual return preparation, and permit renewal assistance.
• Dispute resolution — In the unlikely event of a dispute, we can provide expert advice and representation.

With WaterLink Limited, you can have peace of mind that your water rights are secure and your borehole is built on a solid legal foundation.