N A T I ON A L COU N CI L F OR

L A W REPORT I N G
L IBRA RY
SP E C I A L I SSU E

Kenya Gazette Supp lement No. 147 (Acts No. 9)

R E PU B L I C O F K E N Y A

K E N YA G A Z E T TE S U P P L E M E N T

A CTS, 2023

NAI ROBI , 1st September , 2023

CO N T EN T

A ct —
Pa g e

The Climate Change (A mendment) A ct , 2023 225

NATIONAL COUNCIL FOR

LAW REPORTING

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L I B R A RY A R C H IV E

PR I N T E D A N D PU B L I SH E D B Y T H E G O V E R N M EN T PR I N T E R , N A I RO B I
225

THE CLIMATE CHANGE (AM ENDM ENT) ACT , 2023

N o . 9 of 2023

Date of Assent: 1st September , 2023

Date of Commencement: 15th September, 2023
A N A CT of Par liament to amend the Climate Change
Act , 2016, and for connected pur poses
ENACTED by the Parliament of Kenya, as follows—
1. This Act may be cited as the Climate Change
Sho r t t i t le .

(A mendment) A ct , 2023.
A m end m ent o f
2. The Climate Change Act, 2016, in this Act sect io n 2 o f N o .
referred to as the “principal Act” , is amended in section 2 1 1 o f 20 16 .

by inserting the following new definitions in proper

alphabetical sequence—
“aggregate earnings” means the total of all income i n a
carbon project without adj ustment for inflation, taxation o r
types of double counting;
“carbon budget” means the approved quantity of
greenhouse gas emission that is acceptable over a specified
time and shall be informed by the National Greenhouse G as
Inventory and guide on emission reduction allocation f o r
Nationally Determined Contributions or any other use
consistent with the Conference of the Parties serving at th e
meeting of the Parties to the Paris Agreement guidance,
rules, modalities and procedures;
“ carbon credits” means a credit created when the
equivalent of one metric tonne of carbon dioxide is
prevented fr om entering the atmosphere and is equal t o o n e
tonne of carbon dioxide or the equivalent amount of a
different greenhouse gas reduced, sequestered, or avoided;
“ carbon market” means a mechani sm that enables and
allows public and private entities to transfer and t r a n sa c t
emission reduction units, mitigation outcomes or off sets
generated through carbon initiatives, products, programmes
and proj ects subject to compliance of national and
international l aw s;
“carbon proj ects” means interventions including
programs, proj ects, and products designed to remove,
reduce, sequester or avoid carbon emissions;
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No. 9 Climate Change (Amendment) 20 23

‘c ar bo n o f f set” m ean s a red uc ti o n o r r em o v al o f

emissions of carbon dioxide or other greenhouse gases
made in order to compensate with equivalent number o f
emissions for emissions made elsewhere;
c ar b o n stan d ar ds’ means a complete set of
established rules, procedures, and methodologies that guide
on the generation and issuance of certified carbon credits;
“community” means a consciously distinct and
organized group of users of community land who are
citizens of Kenya and share any of the following
att r i b u tes —

(a) conunon ancestry ;

(b) similar culture or unique mode of livelihood;
(c) socio-economic or other simi lar common interest;
(d) geographical space;
(e) ecological space; or
(f) ethnicity,
“ corresponding adj ustment” means the deduction of
verified emission reductions by the Host Party and ad d i t i o n
of the corresponding amount of verified emission
reductions by the Receiving Party , whereas such reductions
will not count against the Host Party’s Nationally
D eterm ined Contributions and shal l count tow ards the
acquiring Party ’s Nationally Determined Contributions;
“ Designated National Authority” means the entity or
organization granted the responsibility to authorize a n d
approve participation in proj ects under the Paris Agreement
on Climate Change;
“ Internationally Transferred Mitigation Outcomes”
means real , additional and verifi ed reduction in greenhouse
gas emissions or removal of greenhouse gases from the
atmosphere, measured in tC0 2eq and representing one
tC0 2eq per methodologies approved under the Paris
Agreement Rules and generated by a specifi c mitigation
activity from 2021 onwards;
“ intern ationally recognized entity” means any entity
that is accredi ted under an establ i shed set of rules as

properly constituted to oversee a carbon market;

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2023 Climate Change (Amendment) No. 9

'mitigation outcomes” means redactions in

greenhouse gas emissions with global warming potential
equivalent to one tonne of carbon dioxide that has b een
measured and verifi ed in accordance with the Standards;
“ National Carbon Regi stry” means the Carbon
Regi stry establi shed ond^ section 23G;
“ nature-based solutions” means actions that protect,
sustainably manage, or restore natural ecosystems, th at
address societal challenges such as climate change, h u m an
health, food and water security, and disaster risk r ed u ctio n
eff ectively and ad^ vely, simultaneously providing
human well-being and biodiversity benefi ts;
“non-market app oaches” means approaches that aim
at promoting mitigation and adaptation ambition,
enhancing public and private sector participation in th e
implementation of nationally determi ned contributions; an d
enabling opportuni ties for coordination across instruments
and relevant institutional arrangements;
“ Paris Agreemra it” means the Paris Agreement on
Climate Change adopted by the Conference of the Parties a t
its 2r * session in Paris in 2015;
“pro j ect proponent m ean s an entity legally
responsible for carrying out a specifi c proj ect;
“recognized credible intern ational body” means any
entity that is tasked with accreditation of an internationally
recognized entity ;
“ R ed uced E m i ssi o n s f ro m D ef o rest ati on an d F or est
Degradation” means acti vities in the forest sector th at
reduce greenhouse gas emissions from deforestation an d
forest degradation, as well as the sustainable management
of f or ests an d the co n ser v ati o n an d enh an cem ent o f f o re st
carbon stocks at nati onal and sub national level s;
“ share of i»x)ceeds” means levies from activities under
the Pari s A greement that are used to cover admini strative
expenses as well as assisting developing country Parties
th at ar e v u l n er ab l e to th e ad v er se ef f ect s o f cl i m ate change
to meet the costs of adaptation;
“ stakeholder” means a person, business, community or
organization that has an interest in or is affected by the
activities of carbon proj ects and the results those act i o n s
produce;
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No. 9 Climate Change (Amendment) 2023

“ State Part y” means a Country that has ratified the

Pari s A greement on Climate Change;
“ technology” means technologies used to reduce
greenhouse gases and to adapt to the adverse impacts o f
cl imate change;
“ tonnes of carbon dioxide equivalent (tC0 2eq)”
m ean s an am o u n t o f carb o n d i o x i d e em i ssi o n m easu red i n
metric tonnes would cause the same integrated radiative
forcing or temperature change, over a given time horizon,
as an emitted amount of a greenhouse gas or a mi xture o f
greenhouse gases;
“ voluntary carbon market” means a market where
private investors, governments, non-governmental
organizations, and businesses voluntarily buy and sell
carbon credits that represent cert ified emissions removals
or reductions of greenhouse gases in the atmosphere; an d
“ whitelist” means a non-binding, non-exhaustive
periodic list of activities or technologies that can d el i v er
mitigation outcomes as provided for in the Nationally
Determined Contributions and that are preferred by th e
Government of Kenya for Art icle 6.2 bilateral cooperation.
A m end m en t of
3. Section 3 of the principal A ct i s amended in sect io n 3 o f N o .
subsection (2) by — 11 o f 20 16 .

(a) insert ing the following new paragraph

immediately after paragraph (g) —
(ga) provide guidance in the development and
implementation of carbon markets and non-
market approaches in compliance with
international obl igations;
(b) insert ing the words “ including carbon market and
non-market approaches” immediately after the
words “climate change responses” appearing in
paragraph (h).
A m end m ent o f
4. Section 6 of the principal Act is amended by sec ti o n 6 o f N o .
insert ing the following new paragraph immediately after 11 o f 20 16 .

paragraph (f) —
(fa) provide guidance and policy direction on
carbon markets to the national and county
governments, the public and other
stakehol ders;
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2023 Climate Change (Amendment) N o. 9

A m end m ent o f
5. Section 7 of the pri ncipal A ct is amended— sec t io n 7 o f N o .
1 1 o f 20 16 .

(a) in subsection (2) by —

(i) deleting paragraph (c);
(ii) deleting the words “ nomi nated by the body
representing the largest number of institutions
in the pri vate sector” appeari ng in paragraph
(f );
(iii) deleting the words “ nominated by the ipost
representative registered national umbrella
association of civil societies working on
climate change” appeari ng in paragraph (g);
(i v) inserting the following new paragraph
immediately after paragraph (g)-
(ga) a representative of the youth;
(v) deleting the words “ nomi nated by the
Commi ssion for University Education”
appearing in paragraph (i);
(b) by deleting subsection (7);
(c) in subsection ( 12) by deleting the words “ Except
as provided in subsection (7)” .
A m en d m ent o f
6. Section 8 of the pri ncipal A ct i s amended in sec t i o n 8 o f N o .
subsection (2) by — 1 1 o f 20 16 .

(a) deleting the word “ biannually ap p ean n g in

paragraph (e) and substituting therefor the word
“ annually” ;
(b) inserting the following new paragraphs
immediately after paragraph (e) —
(f) advise the Council on the carbon budget for
trading, based on K enya’ s international
obligations;
(g) approve international transfers of mitigation
o utc o m es an d em i ssi o n red u ct i o n b ased o n
advice from the Cl imate Change Directorate;
(h) approve measurement , reporting and
veri fication of greenhouse gas emissions;
(i ) authori ze the establi shment of the Reduced
E m i ssi o n s f rom D ef or est at i o n an d F o r est
2 30

N o. 9 Climate Change (Amendment ) 2023

Degradation Registry and other secto r

registries to feed into the National Carbon
Registry;
(c) i nserting to e following new subsections
inunediately aft er subsection <2) —
(2A) The Cabinet Secretary shall appoint die
Designated National A uthority for mark et
mechanisms and any other mechanisms deriving
fr om Art icle 6 of the Paris Agreement.
(2B) The Designated National Authority
appointed under subsection (2A) shall, in addition
to international obligations, maintain to e National
Carbon Registry established under section 23G .
7. Section 9 of to e principal Act is amended- A m en d m ent o f
sec ti on 9 o f N o .
1 1 o f 20 16 .

(a) in subsection (2) by deleting the words “ and shall

report to the Cabinet Secretary
>» >

(b) in subsection (3) by deleting the word “ Director”

and substituting therefor the word “ Secretary” ;
(c) in subsection (4) by deleting the word “ Director”
and substituting therefor the word “ Secretary” ;
(d) in subsection (5) by deleting the word “ Director”
and substituting therefor the word “ Secretary” ;
(e) in subsection (6) by deleting the word “ Director”
and substituting therefor the word “ Secretary” .
8. Section 10 of the principal Act is amended- A m end m ent o f
sect i on 10 o f N o .
11 o f 20 16 .

(a) in subsection ( 1) by deleting the word “ Director”

and substituting therefor the word “ Secretary” ;
(b) in subsection (2) by deleting the word “ Director”
and substituting therefor the word “ Secretary” .
9. Section 13 of the principal Act is amended— A m end m ent o f
sect i o n 13 o f N o .
I I o f 20 16 .

(a) in subsection (3) by—

(i) deleting the word “ county” appearing in
paragraph (a) and substituting therefor the
word “ country” ;
(ii) inserting the following new paragraphs
immediately after paragraph (n)-
23 1

20 23 Climate Change (Amendment) N o. 9

(o) to guide on the description of annual

carbon budget for each of the years that
make up the fi ve-year cycle;
(p) to identify past, current and proj ected
sector-based greenhouse gases emission
profi le;
(q) to set out proposed carbon credit proj ect
pipeline based on the white li st;
(r) to review and reconunend the level of
compl iM ce with international climate
com mi tments;
l(;s) to specifi cally identify , where appropri ate,
priority actions to explore carbon trading;
(b) in subsection (5) by deleting paragraph (f) and
substituting therefor the following new paragraph-
(f) national and international laws and policies
rel ating to climate change and carbon markets.
10. Section 15 of the principal A ct is amended in A m en dm en t o f
sec t i o n 15 o f N o .
subsection (3) by deleting the word “ Council” and I I o f 20 16 .

substituting therefor the words “ Cabinet Secretary” .

11. Section 16 of the principal A ct is amended in A m end m en t o f
sec ti o n 16 o f N o .
subsection (2) by deleting the word “ Council” and 1 1 o f 20 16 .

substituting therefor the words “Cabinet Secretary” .

12. The principal A ct is amended by inserting the I n ser t io n o f new
Par t to N o . 1 1 o f
following new Part immediately aft er Part IV — 20 16 .

PA R T I V A - R E G U L A T I O N O F C A R B O N
M A RK ETS
C arb o n m ar k ets .
23A . The policy direction on carbon
markets provided pursuant to section 6(f a) ,
shall apply to all carbon markets and
prescribe—
(a) carbon reduction credits that aim to
red u ce em i ssi o n s f rom cu r ren t
sources through proj ects;
(b) removal or sequestration credits
th at tak e c arb o n d i o x i d e o u t o f th e
atmosphere and either use or store it
vi a af f orestation , ref ore station .
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No. 9 Climate Change (Amendment) 20 23

n atu re-b ased so l u tio n s o r

technology-based removal ; and

(c) technologies and proj ects on the
w hitel i st ;
(d) emi ssion credits not taken into
account , including—
(i) previously used emission
credi ts;
(ii) emi ssion reductions that have
b een ach i ev ed i n v i o l at i o n o f
human rights and without free
prior informed consent;
(iii) emi ssion reductions that have
had significant negative social
or environmental impact;
(iv)emi ssion reductions that were
achieved before the T' January,
20 13; and
(v) emission reductions that were
registered before the 1st
January , 20 13.
(2) The Cabinet Secretary shall
prescribe additional requirements on the
regulation of carbon markets.
T r ade i n c ar t>o n 2 3 B . T h e tr ad e i n c ar b o n m ar k et sh al l
m ar k et s.
e n su r e t h at -

(a) transactions in carbon trading as

c ar r ied o ut u n d er thi s A c t ai m
towards a reduction of greenhouse
gas emissions as per the prescribed
carbon standards;

(b) mitigation outcomes reported under

the requirements of this Act shall be
acco u n ted f o r i n to n nes o f c ar b o n
dioxide equivalent;
(c) carbon offset proj ects emissions are
kept out of the atmosphere for a
reasonable length of time in
233

2023 Climate Change (Amendment) No. 9

accordance w ith the relevant carbon

standards; and
(d) emission reductions are carefully
recorded and documented for every
offset scheme, utilizing appropriate
accounting terms, corresponding
adj ustments, and location of offset
as required by the United Nations
Framew ork Convention on C l im ate
Change and other standard bodies.
Parti cipation
i n c arb o n
23C. (1) The participation in an
m ar k ets . initiative authorizing trade in carbon credits
sh al l b e-

(a) as a result of a bilateral or

multilateral trading agreement;
(b) as a result of trading with a private
entity ; or
(c) in a voluntary carbon market .
(2) The Cabinet Secretary may-
fa) enter into a bilateral or multilateral
agreement with another State Party
to trade carbon f or em i ssion
reductions and removal s;
(b) with the approval of the Cabinet,
enter into an agreement with a
private entity to of fset carbon
emi ssions;
(c) with the approval of the Cabinet,
enter into any agreement to trade in
a carbon m arket establ i shed or
overseen by an internationally
recognized entity that is approved
by a recognized credible
international body .
(3) An agreement entered into under
th i s Par t sh al l ai m to —

(a) promote the mitigation of

greenhouse gas emissions while
fostering sustainable development;
and
2 34

N o. 9 Climate Change (Amendment) 20 2 3

(b) incentivi se an d f aci l i tate

participation in the mitigation of
greenhouse gas emissions by
authorized public and private
en t i ti es .

(4) The Cabinet Secretary shall , in the

national reporting mechanism to the United
N ati ons Framew ork Convention on Cl im ate
Change, include any emission reduction
resulting f rom agreements entered into
u nd er th i s sec ti o n .
E n v i r o n m en tal
impact 23D. (1) Every carbon trading proj ect
a s se s s m e m . authorized under this Act shall be required
N o . 8 of 199 9 .
to undergo an environmental and social
impact assessment in accordance with the
E n v ir o n m en tal M anagement an d
Coordination A ct , 1999.
(2) Notwithstanding subsection (1),
reducing emissions from deforestation and
forest degradation and the role of
conservation, sustainable management of
f orests and enhancem ent of f orest carbon
stocks in developing countries proj ects shall
be required to undergo a Reduced Emissions
fr om Deforestation and Forest Degradation
safeguard standards assessment .
23E^ (1) A proj ect undertaken pursuant
Pr ov i si o n o f
so c i al and
en v ir on m en tal to this Act shd l specify the anticipated
benef i ts .
environm ental , econom i c or soci al benefi ts
of the proj ect.
(2) For purposes of subsection (1), the
b enefi t s sh al l i n c l u d e —

(a) removal of greenhouse gases fr om

the atmosphere and avoidance of
emission of greenhouse gases in
order to meet Kenya’s international
obligations;
(b) incentives that promote offset
proj ects;
(c) increase of carbon abatement in a
m an n er th at is co n si sten t w i th
235

20 2 3 Climate Change (Amendment) No. 9

protection of Kenya’s natural

environment ;
(d) improved resilience to the effects of
climate change; or
(e) achievement of K enya’s
greenhouse gases emissions targets.
(3) Every land-based proj ect
undertaken pursuant to thi s A ct shall be
implemented through a community
development agreement which shall outline
the relationships and obligations of the
proponents of the proj ect in public and
community land where the proj ect is under
development .
(4) The National Government and the
respective county government where the
proj ect is situated shall oversee and monitor
the negotiation of the community
development agreement with proj ect
proponents and the stakeholders.
(5) A community development
agreement shall include provisions on the
following—
(a) the stakeholders of the proj ect
including the proj ect proponents,
the impacted communities, the
N ati o n al G o v er n m en t an d th e
county government where the
proj ect is being undertaken;
(b) the annual soci al contribution of the
aggregate earnings of the previous
year to the community, to be
managed and disbursed for the
benefit of the community;
Pr ov i ded th at —

(i) in land-based proj ects, the

co n tr i b u ti o n sh al l b e at l east
forty per centum of the
aggregate earnings; and
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No. 9 Climate Change (Amendment) 2 0 23

(ii) in non-l and-based proj ects,

th e co n tr i b u ti o n sh al l b e at
least twenty-fi ve per centum
of the aggregate earn ings;
(c) the manner of engagement with
local stakeholders, especially the
impacted communities;
(d) the sharing of the benefi ts from the
c ar b o n m ark et s an d c ar bo n cr ed i t s
between the proj ect proponents and
the impacted conununities;
(e) the proposed socio-economic
development around community
priorities; and
(f) the manner of the review or
amendment of the agreement ,
which shall be at least every fi ve
y ear s .
(6) A community development
agreement entered into pursuant to this
sect i o n sh al l b e r ec or d ed i n th e N ati o n al
Carbon Registry .
(7) Every carbon proj ect undertaken
pursuant to this Act shall take into
consideration and aim to improve the
environmental , economic, social and cultural
wellbeing of the community around the
proj ect .
(8) The national government and the
respective county government where the
proj ect is situated shall enforce the
community rights negotiated under a
conununity development agreement
negotiated under section 23E.
(9) The Cabinet Secretary may
prescribe additional requirements relating to
the formul ation of the community
development agreement .
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2023 Climate Change (Amendment) No. 9

Share of proceeds
an d c an cel l at i o n
23F . The national and county
r a te s . govern ments shall , in compliance with
intern ational obligation, undertake best
practices regarding the share of proceeds
and cancellation rates for overall global
mitigation.
Carbon Regi stry .
23G . ( 1) There i s establi shed a registry
to be k no w n as th e N ati o n al C arb o n
Regi stry .
(2) The Designated National A uthority
appointed under section 8(2A ) shal l be the
custodian of the Regi stry .
(3) The Regi stry established under this
section shall include registers on the
following—
(a) the carbon credit proj ects and
programmes implemented to
reduce greenhouse gas emi ssions
in Kenya;
(b) the Reduced Emissions from
D ef o restati o n an d F o rest
Degradation Carbon;
(c) authori sations granted for
participation in any initiative,
proj ect or programme under thi s
A ct ;
(d) the carbon budget and the
greenhouse gas reduction units;
(e) the amount of carbon credits
issued or transferred by K enya;
(f) the amount of carbon credits i ssued
to emission reduction proj ects and
programs recognized by Kenya
f rom a national greenhouse gas
regi stry account;
(g) the transfer of carbon credits and
any carbon credits issued or
recognized by Kenya from a
national greenhouse gas regi stry
acco u n t ;
238

No. 9 Cl imate Change (Amendment) 2023

(h) a re cord of corresponding

adj ustments where applicable, with
respect to carbon cres ts;
(i) the cancellation of carbon credits
and any other carbon credits issued
or recognized by Kenya fr om a
national greenhouse gases registry
account ; and

(j) any other carbon cre dits issued or

recognized by the Kenya fr om a
national greenhouse gases registry
ac c o u n t .

(4) The National Carbon Regi stry shall

be accessible to the public.
Dispute
r eso l u t i on .
23H. (1) Any dispute arising under a
land-based proj ect shall be subj ected to the
dispute resolution mechanism set out in the
Community Development Agre ement in the
fir st instance and be resolved within thirty
days from the date the dispute is lodged.
(2) Any dispute that is not land based
and is not subj ected to a community
development agreement shall be resolved
through Alternative Dispute Resolution in
th e f i r st i n st an ce .

(3) W here the di spute under

subsections ( 1) and (2) i s not resolved
within thirty days of submission, the dispute
sh al l be r ef er red to th e N ati o n al
E n v i r o n m en tal T r i b u n al .
F ees .
231. The Designated National
Authority shall charge such fees as may be
prescribed by the Cabinet Secretary in
regulations for the proper administration of
th e A ct .

13. Section 24 of the principal Act is amended by A m end m en t o f

sect i o n 24 of N o .
deleting subsection (3). 11 of 20 16 .

14. Section 33 of the principal Act is amended by A m en d m en t o f

sec ti o n 3 3 of N o .
inserting the following new subsection inunediately af ter 1 1 of 20 16 .
subsection ( 1) —
(1A) A person who—
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2023 Climate Change (Amendment) N o. 9

(a) willingly conducts unauthori zed trade in carbon

credit ;
(b) knowingly gives false or misleading information
with respect to environmental or financial gains
from the carbon market investment;
(c) manipulates carbon credit measurements in order
to claim addition measurements;
(d) engages in money laundering through carbon
trading;
(e) knowingly sells carbon credits to unauthori zed
entities; or
(f) fail s to maintain carbon records,
commits an offence and is liable, on conviction, to a

fine not exceeding fi ve hundred million shillings or to

impri sonment for a peri od not exceeding ten years or to

bo th .

15. Section 35 of the pri ncipal Act is amended by— A m en dm ent o f

sec ti o n 3 5 o f N o .
(a) renumberi ng the existing provision as subsection 11 o f 20 16 .

( 1); and
(b) inserting the following new subsection
immediately after subsection (1)—
(2) Sections 2, 3, 5 7, 10 and 15 of this Act, shall n o t
apply, to entities that have existing carbon proj ects f o r a
peri od of one year.
16. Section 36 of the pri ncipal Act is amended in A m end m ent o f
sect i o n 36 o f N o .
subsection (2) by inserting Ae following new paragraphs 1 1 o f 20 16 .
immediately after paragraph (b)—
(ba) the regulation of carbon markets;
(bb) the regulation of carbon trading;
(be) the regulation of carbon registri es; and
(bd) the regulation of non-market approaches;
17. The Schedule to the pri ncipal Act is amended by A m end m en t o f
Sc hed u le to N o .
deleting the word “sixty” appeari ng in paragraph 1 (2) (e) 1 1 o f 20 16 .
and substituting therefor the words “ twenty-eight” .