June 2013 (LNs 86-117)

117-Constitution of Kenya (Protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013

117-Constitution of Kenya (Protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013

28th June, 2013

LEGAL NOTICE NO. 117

THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

PART I – PRELIMINARY

Citation.
1. These rules may be cited as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

Interpretation.
2. In these rules, unless the context requires otherwise—

“Constitution” means the Constitution of Kenya;

“costs” means lawyers’ fees and other disbursements of the parties but does not include court fees;

“Court of Appeal” means the Court of Appeal of Kenya established by Article 164 of the Constitution;

“document” includes––

(a) any publication, or any matter written, expressed, or inscribed on any substance by means of letters, figures or marks, or by more than one of those means, that is intended to be used or may be used for the purpose of recording that matter; and

(b) electronic files;

“friend of the court” is an independent and impartial expert on an issue which is the subject matter of proceedings but is not party to the case and serves to benefit the court with their expertise;

“Court” means the High Court of Kenya and includes a subordinate Court contemplated under Article 23(2) of the Constitution;

“informal documentation” includes any legible document in any language that is simple, does not conform to any particular form or rules of grammar and conveys information;

“interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation;

“person” includes an individual, organisation, company, association or any other body of persons whether incorporated or unincorporated;

“petitioner” means any person who institutes proceedings or cross petitions under these rules and for the purposes of a cross petition includes a cross petitioner;

“Registrar” includes assistant and deputy registrar in any particular court;

“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom;

“service” means delivery of an order, summons, or other legal papers to the person required to respond to them; and

“Supreme Court” means the Supreme Court of Kenya established by Article 163 of the Constitution.

Scope and objectives.
3. (1) These rules shall apply to all proceedings made under Article 22 of the Constitution.

(2) The overriding objective of these rules is to facilitate access to justice for all persons as required under Article 48 of the Constitution.

(3) These rules shall be interpreted in accordance with Article 259(1) of the Constitution and shall be applied with a view to advancing and realising the—

(a) rights and fundamental freedoms enshrined in the Bill of Rights; and

(b) values and principles in the Constitution.

(4) The Court in exercise of its jurisdiction under these rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases.

(5)  For the purpose of furthering the overriding objective, the Court shall handle all matters presented before it to achieve the—

(a) just determination of the proceedings;

(b) efficient use of the available and administrative resources;

(c) timely disposal of proceedings at a cost affordable by the respective parties; and

(d) use of appropriate technology.

(6) A party to proceedings commenced under these rules, or an advocate for such party is under a duty to assist the Court to further the overriding objective of these rules and in that regard to—

(a) participate in the processes of the Court; and

(b) comply with the directions and orders of the Court.

(7) The Court shall pursue access to justice for all persons including the—

(a)   poor;

(b)   illiterate;

(c)   uninformed;

(d)   unrepresented; and

(e)   persons with disabilities

(8)  Nothing in these rules shall limit or otherwise affect the inherent power   of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

PART II—PROCEDURE FOR INSTITUTING COURT PROCEEDINGS

Contravention of rights or fundamental freedoms.
4. (1) Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.

(2) In addition to a person acting in their own interest, court proceedings under sub rule (1) may be instituted by—

(i) a person acting on behalf of another person who cannot act in their own name;

(ii) a person acting as a member of, or in the interest of, a group or class of persons;

(iii) a person acting in the public interest; or

(iv) an association acting in the interest of one or more of its members.

Addition, joinder, substitution and striking out of parties.
5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—

(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what   extent, may be determined as between all parties.

(b)  A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.

(c)  Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.

(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—

(i) order that the name of any party improperly joined, be struck out; and

(ii)  that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.

(e)  Where a respondent is added or substituted, the petition shall unless  the court otherwise directs, be amended in such a manner as may be  necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.

Friend of the Court.
6. The following procedure shall apply with respect to a friend of the court—

(a) The Court may allow any person with expertise in a particular issue which is before the Court to appear as a friend of the Court.

(b) Leave to appear as a friend of the Court may be granted to any person on application orally or in writing.

(c) The Court may on its own motion request a person with expertise to appear as a friend of the Court in proceedings before it.

Interested party.
7. (1) A person, with leave of the Court, may make an oral or written application to be joined as an interested party.

(2) A court may on its own motion join any interested party to the proceedings before it.

Place of filing.
8. (1) Every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place.

(2) Despite sub rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party.

Notice of institution of the petition.
9. (1) The Court may direct that notice of institution of petition be posted on the Court notice board or be published in the Gazette, a daily newspaper with national circulation or the Judiciary’s website.

(2) The notice referred to in sub rule (1) shall—

(a) contain a brief summary of the case, reference to the provisions of the Constitution violated or infringed and the relief sought; and

(b) be approved by the Registrar.

Form of petition.
10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.

(2) The petition shall disclose the following—

(a)   the petitioner’s name and address;

(b)   the facts relied upon;

(c)   the constitutional provision violated;

(d)   the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;

(e)  details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;

(f)  the petition shall be signed by the petitioner or the advocate of the petitioner; and

(g) the relief sought by the petitioner.

(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation,   infringement or threat to a right or fundamental freedom.

(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.

Documents to be annexed to affidavit or petition.
11. (1) The petition filed under these rules may be supported by an affidavit.

(2) If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit.

Registrar to assist in filing of petitions.
12. The Registrar shall cause a prescribed form to be available in the Registry to assist petitioners who bring oral applications to have them reduced in writing.

Petition filed under certificate of urgency.
13. A petition filed under certificate of urgency may be placed before a Judge for appropriate orders or directions.

Service of petition.
14. (1) The petitioner shall serve the respondent with the petition, documents and relevant annexures within 15 days of filing or such time as the court may direct.

(2) Proof of service shall be the affidavit of service set out in Form B in the Schedule with such variations as may be necessary.

Reply to a petition.
15. (1) The Attorney-General or any other State organ shall within  fourteen days of service of a petition respond by way of a replying affidavit  and if any document is relied upon, it shall  be annexed to the replying affidavit.

(2)  (a)  A respondent not in the category of sub rule (1) shall within seven days file a memorandum of appearance and either a—

(i) replying affidavit; or

(ii) statement setting out the grounds relied upon to oppose the petition.

(b) After filing either of the documents referred to in sub rule (2) (a), a respondent may respond by way of a replying affidavit or provide any other written document as a response to the petition within fourteen days.

(3)  The respondent may file a cross-petition which shall disclose the matter set out in rule 10(2).

Failure to respond within stipulated time.
16. (1) If the respondent does not respond within the time stipulated in rule 15, the Court may hear and determine the petition in the respondent’s absence.

(2) The Court may set aside an order made under sub-rule (1) on its own motion or upon the application of the respondent or a party affected by the order.

Consolidation.
17. The Court may on its own motion or on application by any party consolidate several petitions on such terms as it may deem just.

Amendment of pleadings.
18. A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.

Formal applications.
19. A formal application under these rules shall be by Notice of Motion set out in Form D in the schedule and may be supported by an affidavit.

PART III —HEARING AND DETERMINATION OF COURT PROCEEDINGS

Hearing of the petition.
20. (1) The hearing of the petition shall, unless the Court otherwise directs, be by way of—

(a)   affidavits;

(b)   written submissions; or

(c)   oral evidence.

(2)   The Court may limit the time for oral submissions by the parties.

(3)   The Court may upon application or on its own motion direct that the petition or part thereof be heard by oral evidence.

(4)   The Court may on its own motion, examine any witness or call and examine or recall any witness if the Court is of the opinion that the evidence is likely to assist the court to arrive at a decision.

(5) A person summoned as a witness by the court may be cross examined by the parties to the petition.

Evaluating petition for directions and allocating hearing dates.
21. (1) In giving directions  on the hearing  of the case, a Judge may  require  that  parties  file  and  serve  written  submissions  within fourteen days of such directions or such other time as the Judge may direct.

(2) A party who wishes to file further information at any stage of the proceedings may do so with the leave of the Court.

(3)  The Court may frame the issues for determination at the hearing and give such directions as are necessary for the expeditious hearing of the case.

Written submissions.
22. (1) Each party may file written submissions.

(2) Subject to such directions as may be issued by the court, written submissions shall contain the following—

(a) a brief statement of facts with reference to exhibits, if any, attached to the petition;

(b)  issues arising for determination; and

(c)  a concise statement of argument on each issue incorporating the relevant authorities referred to together with the full citation of each authority.

(3) Copies of the authorities to be relied on shall be attached to the written submissions.

Conservatory or interim orders.
23. (1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.

(2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court.

(3) The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court.

Application under rule 21.
24. (1)  An  application  under  rule  23may  be  made  by  way  of notice of motion or by informal documentation.

(2) Where an oral application is made under rule 23, the Court shall reduce it in writing.

Setting aside, varying or discharge.
25. An order issued under rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.

Costs.
26. (1) The award of costs is at the discretion of the Court.

(2) In exercising its discretion to award costs, the Court shall take appropriate  measures  to  ensure  that  every  person  has  access  to  the Court to determine their rights and fundamental freedoms.

Withdrawal or discontinuance.
27. (1) The petitioner may—

(a)  on notice to the court and to the respondent, apply to withdraw the petition; or

(b) with the leave of the court, discontinue the proceedings.

(2) The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision.

(3)  Despite sub rule (2), the Court may, for reasons to be recorded, proceed  with the hearing of a case petition in spite of the wish of the petitioner to withdraw or discontinue the proceedings.

Acquiescence.
28. If the respondent does not dispute the facts in the petition whether wholly or in part, the Court shall, after hearing the parties, make such orders as it may deem fit.

Settlement by consent.
29. The parties may, with leave of the Court, record an amicable settlement reached by the parties in partial or final determination of the case.

Extension of time.
30. The Court may extend time limited by these rules, or by any decision of the Court.

Use of alternative dispute resolution.
31. The Court may refer a matter for hearing and determination by alternative dispute resolution mechanism.

Stay pending appeal.
32. (1) An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed.

(2) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling and the court may issue such orders as it deems fit and just.

(3) A formal application for stay may be filed within 14 days of the decision appealed from or within such time as the court may direct.

Court Fees
33. There shall be paid in respect of all proceedings  under these Rules the same court fees as are payable in respect of civil proceedings in the High Court in so far as the same are applicable.

Waiver of court fees.
34. (1) A person who wishes to be exempted from paying court fees may apply to the Registrar.

(2) An application under sub-rule (1) may be made by informal documentation.

(3) The reasons for the Registrar’s decision shall be recorded.

Practice Directions.
35. The Chief Justice may issue practice directions for the better carrying out of these rules.

Review.
36. The Chief Justice may review these rules from time to time.       

SCHEDULE

FORM A                                                                                                          (r. 10(1))

IN THE HIGH COURT OF KENYA AT.............................

PETITION NO. ...... OF .....................20.....

IN THE MATTER OF Article 22(1)

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE (insert article)

.............................................................................

BETWEEN

A.B. (insert names of parties)...................................... PETITIONER

AND

C.D. (insert names of parties) .........................................RESPONDENT

TO:

The High Court of Kenya

The Petition of A.B (insert names of Petitioner) of (insert address of Petitioner) ...........in the Republic of Kenya is as follows-............................................................. (the allegations upon which the Petitioner(s) rely must be concisely set out, in consecutively numbered paragraphs and should address the following:

(a) the facts of the case,

(b) nature of the injury caused or likely to be caused to Petitioner or public in public interest suits,

(c) details regarding any civil, criminal or other litigation involving the Petitioner which could have a legal nexus with the issue raised in the suit) ………….............……………..

Your Petitioner(s) therefore pray(s) that..............................................................................
(set out exact order(s) sought)..............................................................................................

Or that such other order(s) as this Honourable Court shall deem just.

DATED at .................. this .................day of ......................20......

Signed............................... Petitioner/Advocate for the Petitioner

DRAWN & FILED BY:

TO BE SERVED UPON:

FORM B                                                                                                          (r. 14(2))

AFFIDAVIT OF SERVICE
(Title)

I...........................................................................of........................................... an adult of sound mind/advocate/a police officer/a process server of the court make oath and say as follows:

(1) On ..................................................., 20 .................at..................... (time) I served the petition/replying affidavit/document in this case on.................. (name) at.................... (place) by tendering a copy thereof to him/her and requiring a signature on the original. He/She signed/refused to sign the petition/replying affidavit/document. H /She was personally known to me/was identified to me by................................and admitted that he/she was the respondent/petitioner.

(2) Not being able to find the respondent/petitioner on..................................., 20...............at.............................. (time) I served the petition/replying affidavit/document on.......................................... (name) an adult member of the family of the respondent/petitioner who is residing with him/her.

(3) Not being able to find the respondent/petitioner or any person on whom service could be made, on...................................................... , 20 ...........at ....................(time), I affixed a copy of the petition/replying affidavit/document to the outer door of................................................being the house in which he/she ordinarily resides/carries on business/personally works for gain. I was accompanied by ...............................................................who identified the house to me.

(4) (Otherwise specify the manner in which the petition/replying affidavit/document was served).

SWORN by the said ............................................this............................................................ day........................................of......................................, 20.......................

Before me..........................................................................................

A Commissioner of Oaths/Magistrate.

FORM C                                                                                                     (r. 22(3)

SUBSTITUTED SERVICE BY ADVERTISEMENT

To:.......................................................................................................................

of.........................................................................................................................

Take notice that a petition has been filed in the .................Court at .................in Civil Suit No. ...........of 20 ............, in which you are named as respondent. Service of the petition on you has been ordered by means of this advertisement. A copy of the petition may be obtained from the court at..........

(insert postal address of registry).

And further take notice that, unless you enter an appearance within ................ days, the case will be heard in your absence.

FORM D

Title

(as in the Petition)

NOTICE OF MOTION

TAKE NOTICE THAT that this Honorable Court Shall be moved on the...................................day of............................................ 20 at 9:00 o'clock in the forenoon or as soon thereafter as the applicant/counsel for the applicant may be heard on an application FOR ORDERS: -

(a)

(b)

WHICH APPLICATION is made on the following grounds: -

(i)...........................................................................................................................

(ii)..........................................................................................................................

(iii).........................................................................................................................

AND WHICH APPLICATION is supported by the annexed affidavit of and by such other grounds, reasons and arguments as shall be adduced at the hearing hereof.

DATED at ........................................ this day of ...........................................20.................

 
APPLICANT/ADVOCATES FOR THE APPLICANTS

Drawn and filed by:

To be served upon:

“If any person served does not appear at the time and place abovementioned such orders shall be made and proceedings taken as the court deems just and expedient”.

Dated 25th day of June, 2013.

WILLY MUTUNGA,
Chief Justice.

116-Capital Markets Real Estate Investment Trusts Collective Investment Schemes Regulations, 2013

116-Capital Markets Real Estate Investment Trusts Collective Investment Schemes Regulations, 2013

Please click here to download Legal Notice

115-Capital Markets (Corporate Governance)(Market Intermediaries)(Amendment) Regulations, 2013

115-Capital Markets (Corporate Governance)(Market Intermediaries)(Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 115

CAPITAL MARKETS ACT
(Cap. 485A)

IN EXERCISE of the powers conferred by section 12 (1) of the Capital Markets Act, the Cabinet Secretary to the National Treasury, makes the following Regulations;—

CAPITAL MARKETS (CORPORATE GOVERNANCE) (MARKET INTERMEDIARIES) (AMENDMENT) REGULATIONS, 2013

Citation.
1. This Regulations may be cited as the Capital Markets (Corporate Governance) (Market Intermediaries) (Amendment) Regulations, 2013.

Sub.Leg.
2. Regulation 3 of the Capital Markets (Corporate Governance) (Market Intermediaries) Regulations (hereinafter referred to as “the principal Regulations” is amended in paragraph (1)(b) by inserting the word “third” immediately after the word “one”.

3. Regulation 4 of the principal Regulations is amended by deleting paragraph (b) and substituting therefor the following new paragraph—

“(b) has undergone a relevant training on corporate governance:

Provided that a market intermediary shall ensure that any person appointed as a director undergoes corporate governance training within six months of appointment.”

4. Regulation 13 of the principal Regulations is amended in paragraph (2) (f) by deleting the word “with” appearing immediately after the word “compliance”.

5. Regulation 15 of the principal Regulations is amended by deleting paragraph (3) and substituting therefor the following new paragraph—

“(3) The shareholders of a market intermediary shall ensure that the market intermediary applies to the Authority for approval of any acquisition or transfer if the acquisition or transfer results to a person being entitled to exercise control of over five per cent or more of the share capital of that intermediary.”

6. Regulation 17 of the principal Regulations is amended in paragraph (1) (f) by deleting the words “by presenting relevant board papers”.

7. Regulation 20 of the principal Regulations is amended in paragraph (4) by deleting the expression “16(2)” and substituting therefor the expression “17(2).”

8. Regulation 36 of the principal Regulations is amended in paragraph (1) by—

(a) deleting the word, “these”; and

(b) inserting the expressions “13, 15(5), 18, 21,22,23,24 (6) and 30” immediately after the word, “regulations”.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

114-Public Procurement Preference and Reservations (Amendment) Regulations, 2013

114-Public Procurement Preference and Reservations (Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 114

THE PUBLIC PROCUREMENT AND DISPOSAL ACT
(No. 3 of 2005)

IN EXERCISE of the powers conferred by section 140 of the Public Procurement and Disposal Act, the Cabinet Secretary to the National Treasury makes the following Regulations:—

THE PUBLIC PROCUREMENT AND DISPOSAL (PREFERENCE AND RESERVATIONS) (AMENDMENT) REGULATIONS, 2013

Citation.
1. These Regulations may be cited as the Public Procurement and Disposal (Amendment) Regulations, 2013.

LN. 58/2011.
2. Regulation 2 of the Public Procurement and Disposal (Preference and Reservations) Regulations, 2011, in these Regulations referred to as “the principal Regulations”, is amended by inserting the following new definitions in proper alphabetical sequence-

"furniture" includes screens, fixed bench couches, garden furniture, wardrobes and light furniture;

3. The principal Regulations are amended by deleting regulation 6and substituting therefor the following new regulation –

6. (1) Small or micro enterprise or a disadvantaged group wishing to participate in public procurement shall apply for registration with the National Treasury or the respective county treasury with which they operate and are located in the form set out in the First Schedule to these Regulations.

(2) All lists of registered enterprises from the national and county levels shall be submitted to the Authority for consolidation and publication.

4. The principal Regulations are amended by deleting regulation 12 and substituting therefor the following new regulation—

12. For purposes of section 39(4) (d) of the Act, public entities shall grant exclusive preference to local contractors offering–

(a) motor vehicles, plant and equipment that are assembled in Kenya;

(b) construction material and other material used in the transmission and conduction of electricity of which such material is made in Kenya;

(c) furniture, textiles, foodstuffs and other goods made or locally available in Kenya.

5. The principal Regulations are amended by deleting regulation 13 and substituting therefor the following new regulation –

13. For the purposes of section 39(8) (a) (ii) of the Act, the threshold below which exclusive preference shall be given to citizen contractors, shall be the sum of –

(a) one billion shillings for procurements in respect of road works, construction materials and other materials used in transmission and conduction of electricity of which the material is made in Kenya;

(b) five hundred million shillings for procurements in respect of other works;

(c) one hundred million shillings for procurements in respect of goods; and

(d) fifty million shillings for procurements in respect of services.

6. The principal Regulations are amended by deleting regulation 19 and substituting therefor the following new regulation –

19. (1) For the purpose of ensuring maximum participation of citizen contractors, disadvantaged groups, small and micro- enterprises in public procurement, procuring entities may unbundle goods works and services in practicable quantities pursuant to section 31(7) of the Act.

(2) For greater certainty, a procuring entity in unbundling procurements in paragraph (1), may be lot goods, works or services in quantities that are affordable to specific target groups participating in public procurement proceedings.

7. The principal Regulations are amended by inserting the following new Regulations immediately after regulation 30—

Budgetary Reservations.
31. (1) A procuring entity shall allocate at least thirty percent of its procurement spend for the purposes procuring goods, works and services from micro and small enterprises owned by youth, women and persons with disability.

(2) For the purpose of implementing paragraph (1), a procuring entity shall implement the requirement through its budgets, procurement plans, tender notices, contract awards and submit quarterly reports to the Authority.

Qualification for preference and reservations schemes.
32. For the purpose of benefiting from preference and reservations schemes, an enterprise owned by youth, women or persons with disabilities shall be a legal entity that—

(a) is registered with the relevant government body; and

(b) has at least seventy percent membership of youth, women or persons with disabilities and the leadership shall be one hundred percent youth, women and persons with disability, respectively

Facilitation for financing of local purchase or service orders.
33. A procuring entity shall facilitate financing of enterprises owned by youth, women or persons with disabilities that have been awarded contracts, by authenticating their notifications of tender awards and local purchase or service orders and subsequently entering into an agreement with the relevant financing institution with conditions that shall include paying the contracted enterprise through their account opened with the financier.

Prompt payments for performed contracts.
34. (1) For the purpose of ensuring sustained growth for enterprises owned by youth, women or persons with disabilities, procuring entities shall make prompt payments for all performed contracts through electronic media where possible and shall not delay beyond thirty days.

(2) Where delay is inevitable, a procuring entity shall make at least fifty percent part-payment and shall give a written explanation for the delay to the enterprises referred to in paragraph (1).

(3) Where delay of payments for works performed are likely to happen, a procuring entity may facilitate invoice discounting arrangements with a financial institution for the purpose of advancing credit to the affected enterprises stated in paragraph (1).

Sourcing supplies to citizen contractors by international tenderers.
35. For the purpose of ensuring sustainable promotion of local industry, a procuring entity shall have in its tender documents a mandatory requirement as a preliminary evaluation criteria for all foreign tenderers participating in international tenders to source at least forty percent of their supplies from citizen contractors prior to submitting a tender.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

113-Capital Markets (Securities) (Public Offers, Listing and Disclosures)(Amendment) Regulations, 2013

113-Capital Markets (Securities) (Public Offers, Listing and Disclosures)(Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 113

THE CAPITAL MARKETS ACT
(Cap. 485A)

IN EXERCISE of the powers conferred by section 12 of the Capital Markets Act, the Cabinet Secretary to the National Treasury makes the following Regulations:—

THE CAPITAL MARKETS (SECURITIES) (PUBLIC OFFERS, LISTING AND DISCLOSURES) (AMENDMENT) REGULATIONS, 2013

Short Title.
1. (1) These Regulations may be cited as the Capital Markets (Securities) (Public Offers, Listing and Disclosures) (Amendment) Regulations 2013.

Sub.Leg.
2. Regulation 2 of the Capital Markets (Securities) (Public Offers, Listing and Disclosure) Regulations (hereinafter referred to as “the principal Regulations”) is amended by inserting the following new definitions in proper alphabetical sequence-

“East African Partner State regulator” means the regulator in an East African Community member state charged with the supervision of the capital markets; and

“regional fixed income securities” means fixed income securities issued under regulation 7(1) (d).

3. The principal Regulations are amended by inserting the following new regulation immediately after Regulation 6A—

Book building.
6B. A person proposing to offer its securities to the public or a section of the public may use a book building process to determine the price for the offer of securities in accordance with the requirements set out in the Eighth Schedule to these Regulations.

4. Regulation 7 of the principal Regulations is amended in paragraph (1) by adding the following new subparagraph immediately after subparagraph (c)—

(d) with respect to regional fixed income securities to be issued within the East African Community, the issuer complies with the eligibility requirements as set out in Part B of the Second Schedule.

5. The Second Schedule to the principal Regulations is amended by—

(a) inserting the expression “Part A” immediately after the title “Second Schedule”; and

(b) inserting the following new Part immediately after the new Part A—

PART B
r.7 (1) (d)

I. REQUIREMENTS FOR ISSUANCE OF REGIONAL FIXED INCOME SECURITIES

ELIGIBILITY TO ISSUE

Eligibility to issue
An offer of fixed income securities approved for issue in more than one jurisdiction in East African Community shall be considered as a regional offer of fixed income securities and shall comply with the relevant regulations, rules or guidelines attaching to issuers of securities to the public in any jurisdiction in which the issue has been made.

Approval entity
The issuer shall elect a primary jurisdiction in which the issuer shall lodge the prospectus. The issuer shall simultaneously submit the prospectus to the regulators of other jurisdictions which the issuer proposes to raise capital for approval. The procedure for approval is as set out in item II of this Part.

ISSUER

Issuer
The issuer shall be an entity incorporated or registered as a foreign entity in all jurisdictions where the offer is to be made.

Incorporation status.
Where the issuer is not a company, then the issuer shall be duly established under a written law or recognized under an international treaty.

Share Capital
The minimum paid-up share capital shall be the local currency equivalent of United States of America dollars 850,000.

Net Assets.
The net assets shall be the local currency equivalent of United States of America dollars 1,700,000.

All sovereign borrowers, quasi-sovereign borrowers and treaty organizations are exempted from the share capital and net assets requirements.

Profitability
An issuer, other than a special purpose vehicle, shall be required to have reported profits in at least two of the previous three years preceding the offer.

Provided that—

the regulatory authorities shall retain the discretion to grant a waiver in circumstances where decline in profitability is not considered to be a consequence of the fundamentals of the company.

Exemption of SPVs
A special purpose vehicle without a track record may raise capital and such special purpose vehicle shall be subjected to disclosure requirements on performance projections, risk factors and mitigations and on the availability of financial information to assess any projections made.

An issuer that is an SPV shall be eligible for approval to make offers to institutional or sophisticated investors but not unrestricted offers to the public.

ISSUE

Issue size.
The minimum size of a regional fixed income security issue shall be the local currency equivalent of United States of America dollars 850,000.

Denomination of Offer and application of funds outside the jurisdiction where funds are raised.

An issuer may raise funds in any jurisdiction in the region without restriction on the jurisdiction where proceeds are to be used subject to disclosure of that fact in the information memorandum and subject to obtaining the necessary exemptions on exchange controls, if required.

An issuer shall determine the currency or currencies for the issue.

Credit Enhancement.
An issuer may secure credit enhancement:

Provided that where credit enhancement is to be provided, the following requirements shall apply-

—In the case of a guarantee:

-the guarantor shall be a bank, duly licensed non-bank financial institution, or recognized international financial institution;

-a letter of no objection shall be provided by the credit enhancer’s primary regulator (other than in the case of an international financial institution);

-the guarantor shall be required to have a valid credit rating.

The Authority may prescribe any conditions or information requirements applicable to any other form of credit enhancement.

Additional offers.Notwithstanding that an issuer has made a regional fixed income security offer, the issuer, may, at any time, raise an additional amount in any one or more jurisdictions in accordance with a further pricing supplement updating the disclosures in the regional information memorandum. In all events, where a green shoe option is available, it shall be made to all countries where the offer has been made available.

FINANCIAL DISCLOSURE REQUIREMENTS

Financial Statement Disclosure.
Where an issuer has a track record, the following financial statements complying with International Financial Reporting Standards for the three years preceding the offer shall be required-

-Audited accounts not more than six months old at the time of the offer;

-Where the audited accounts are more than six months old they shall be supported by management accounts.

-Management accounts shall be prepared to a date within one month of the date of the offer.

Financial Ratios
The financial ratios requirements applicable to national fixed income securities offers shall not be applicable to regional fixed income securities offers.

Cash flow projections.
An issuer shall provide proforma financial statements which cover a period of not less than three years from the date of issue or where the fixed income security has a shorter maturity period, the life of that fixed income security.

Disclaimer statement.
All prospectuses for regional offers of fixed income securities shall contain the following statement on the front page-

“As a matter of policy, the approving regulators assume no responsibility for the correctness of any statements or opinions made or reports contained in this prospectus. Approval of the issue or listing is not an indication of the merits of the issuer or of the securities”

Listing.
Listing shall be mandatory for all regional offers of securities which are to be offered to the public or a section of the public:

Provided that this requirement shall not apply to offers targeted at institutional, sophisticated or professional investors.

An issuer who is not eligible for listing may be approved to issue its securities to sophisticated, institutional or professional investors and the securities may be approved for trade on regulated Over the Counter (OTC) markets.

“An institutional”, “a sophisticated” or “a professional” investor means for the purposes of regional fixed income securities –

(a) any person licensed under any securities legislation applicable in the East African Community region;

(b) any authorized or a recognized scheme by any securities legislation applicable in the East African Community region;

(c) an individual, either alone or with any of his associates on a joint account, having proven liquid assets in excess of an amount as may be prescribed from time to time, or its equivalent in any foreign currency;

(d) any company or partnership having proven liquid assets in excess of an amount as may be prescribed from time to time, or its equivalent in any foreign currency.

Trading, clearing and settlement.
An issuer of regional fixed income securities shall comply with the requirements relating to trading, clearing and settlement on any exchange on which its securities are traded or in line with the rules for the relevant OTC market as well as those of any central depository through which its securities are cleared and settled.

Credit Ratings.
An issuer of regional fixed income securities shall maintain a valid credit rating for so long as the issue remains outstanding:

Provided that where an issuer has no track record or where the debt is to be funded from revenue from a specific project or designated cash flows, then the credit rating shall be in respect of the project or performance projections.

Only a credit rating agency with a publicly available Code of Conduct guiding its ratings practices and which is in compliance with International Organization for Securities Commissions (IOSCO) Code of Conduct Fundamentals for Credit Rating Agencies (CRA) shall be eligible to provide credit rating reports:

Provided further that a credit rating agency which complies with the IOSCO CRA code shall not be required to be registered in any East African Community jurisdiction to be eligible to provide credit rating reports.

All Information Memoranda for regional offers of fixed income securities shall include a cautionary statement with words to the effect that-

“A credit rating is not a recommendation to apply for the securities on offer or an assurance of performance of the offer or the issue and investors should exercise due diligence and use the rating only as one of the considerations in making their investment decision.”

Professional Parties.
An issuer of regional fixed income securities shall in respect of any issue of securities comply with the following requirements relating to professional parties.

Transaction Arranger, Sponsoring Stockbroker or Placing Agent:

Appoint a transaction arranger, placing agent or a sponsoring stockbroker who shall be a corporate body licensed to carry out such function by at least one East African Community Partner State regulator and has affiliates in all regional jurisdictions where the security will be issued.

Accountant’s report


Appoint a reporting accountant for the issue who shall be in compliance with all the requirements of their professional bodies. The reporting accountant shall be a firm registered in any East Africa Community country with affiliates in all East African Community countries.

Legal Opinion


Appoint a legal adviser who shall be in compliance with all the requirements of their professional bodies. The legal advisers shall be a firm registered in any East African Community country with affiliates in all East African Community countries.

Paying and Receiving Bank

Appoint paying and receiving banks which shall be banks licensed in the East African Community countries where funds are being raised. The issuer shall determine the number of receiving banks.

Continuous disclosure obligations.
An issuer of a regional fixed income security shall be required to comply with the continuous disclosure obligations applicable to offers of fixed income securities in all jurisdictions in which it has raised capital from the public.

Where the regional fixed income security is listed on one or more securities exchanges or is traded on any regulated market within the East African Community region, it shall comply with the continuous obligations imposed by that securities exchange or market.

The issuer is obliged to avail to investors in all jurisdictions in which the issuer has raised capital, all relevant information for proper appraisal of the financial position of the issuer in an effective and timely manner.

The matters subject to continuous reporting includes-

-updates on rating reports;

-interim financial reporting;

-audited financial reports.

Penalties.
An issuer who fails to comply with the continuous disclosure obligations including failure to provide any required information to all investors simultaneously, is liable for breach of the continuous reporting obligations in any jurisdiction in which such omission occurs and the applicable sanctions shall apply.

Dispute resolution.
The law in force in the jurisdiction where a cause of action arises shall apply in case of a dispute between an investor and an intermediary or between an issuer and an intermediary. The information memorandum shall specify the applicable law and mode of dispute resolution where a dispute involves the issuer and an investor.

Payment of evaluation fees
Evaluation fees shall be paid at the time of application to the primary regulator. It shall be the duty of the primary regulator to transfer to the other regulators their share of the evaluation fees paid. In the event of a rejection, the issuer shall forfeit twenty five per cent of the evaluation fee paid.

II. INFORMATION MEMORANDUM APPROVAL PROCEDURE FOR ISSUANCE OF REGIONAL FIXED INCOME SECURITIES

1. The issuer shall submit, for approval, a draft information memorandum accompanied by an evaluation fee to all East African Partner State regulators in which it intends to raise capital indicating the jurisdiction that the issuer desires to be the primary approving jurisdiction (primary regulator).

2. Where an application has been lodged that is incomplete or unmeritorious ab initio as a regional fixed income security, the primary regulator shall have the discretion to reject the application in whole and inform the other regulators of such rejection and the reasons thereof. In the event of a rejection and the issuer wishes to proceed with the issuance, the issuer shall be required to lodge the application afresh in all jurisdictions and be liable to pay any application costs attaching thereto.

3. Each regulator shall apply the eligibility and disclosure requirements for issuance of regional fixed income securities for purposes of assessing the application.

4. In the event that any regulator seeks to interpret the applicability of any provision of the eligibility and disclosure requirements, that regulator shall officially communicate with all other regulators to determine the manner in which that matter will be addressed and the majority opinion shall prevail.

5. Where a regulator has communicated with the other regulators in accordance with paragraph4, the regulators consulted shall revert within five working days of the receipt of communication and the final position shall be communicated to the issuer within ten days and copied to all regulators.

6. The other regulators shall submit any comments on the information memorandum to the primary regulator for consolidation for communication to the issuer. Where the primary regulator proposes to exclude certain matters from communication to the issuer, it shall communicate its intention to the other regulators, which action shall be subject to the timelines for communication under paragraph 5.

7. The primary regulator shall, upon completion of its review, submit the same for consideration and approval by its relevant authority in accordance with its applicable procedures for approval of offers to the public:

Provided that the submission shall not be made later than five working days following the receipt of the complying document from the issuer.

8. In the event of an approval, the primary regulator shall issue a letter to all other regulators communicating its approval and confirming that the issue complies with the regional criteria.

9. In the event of the grant of an approval of the issue, the primary regulator shall provide a copy of the letter of approval and details of any conditions imposed on that approval to all the other regulators. This approval will not be communicated to the issuer pending circulation and determination by the other regulators.

10. Upon receipt of a copy of the approval letter from the primary regulator, every regulator which is in receipt of the information memorandum shall submit the final Information Memorandum together with the primary regulator’s approval letter to their respective authorities for consideration and determination:

Provided that such submission shall not be made later than five working days following the receipt of the primary regulators decision as per the approval timetable set out in item III of this Part.

11. In the event that approval is declined, the primary regulator shall provide a copy of the reasons for such decision to all other regulators for their consideration. The primary regulator shall specify where the approval has been withheld for reasons other than those in the criteria set down for regional issues. Where a rejection occurs for reasons other than failure to comply with the regional guidelines, the other regulators shall retain full statutory discretion to approve or reject the application placed before it notwithstanding any approval or rejection by the primary regulator.

12. For the purposes of coordination, the approving regulators shall engage with any listing exchange in their jurisdiction to ensure compliance by the issuer with any reporting and disclosure obligations issued by the regulator and the securities exchange.

13. In so far the issuer has raised capital in a particular jurisdiction, the relevant regulator shall be responsible for the supervision of that issuer in respect of that issue.

14. Where an imbalance in information disclosure occurs, the regulators shall coordinate any action with any relevant securities exchanges or trading platforms on which the securities in question are traded to mitigate the negative impacts of such information asymmetry on investors.

15. Any changes or interpretations made to this Schedule or the Approval Procedure shall be published by all the jurisdictions.

III. APPROVAL TIMETABLE

T: Complying application lodged with all the regulators.

T+ 10: All comments from regulators lodged with the primary regulator.

T+ 15: All areas for consultation for interpretation resolved.

T+ 20: All issues communicated to the issuer.

Y (date issuer reverts with complying documents) + 10: Primary regulator board determination (primary board may approve with conditions) and issues letter of comfort.

Y+ 15: All other regulator’s board determination (decisions may be conditional indicating matters to be addressed).

Y+ 17: Communication of regulator’s decision to issuer.

“day” means a business day. 6. The principal Regulations are amended by inserting the following new Schedule immediately after the Seventh Schedule—

EIGHTH SCHEDULE
(r.6B)

REQUIREMENTS FOR OFFER OF SECURITIES USING A BOOK BUILDING PROCESS

PART I

PRELIMINARY

1. “Book building” means a process undertaken by which a demand for the securities proposed to be issued by an issuer is elicited and built up and the price of such securities is assessed for the determination of the quantum of such securities to be issued.

“Book building portion” refers to the pool of securities that will be available for offer and allotment to the participating entities through the book-building process and which have been segregated from the securities to be offered at a fixed price.

“Book runner” refers to the primary coordinator of the book building process in debt and equity offers.

“Participating entity” means a professional investor as prescribed by the Authority.

“Regulations” means the Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002.

PART II—BOOK BUILDING PROCESS

Book building portion
2. The portion of securities offered to the public that are to be available for the book-building process shall be identified as the "book building portion” in the information memorandum.

Fixed price portion
3.The balance of securities constituting the offer to the public, excluding the book building portion, shall be separately identified as ' fixed price portion ' in the information memorandum.

Approval of the information memorandum
4. A complying information memorandum shall be lodged with and approved by the Authority prior to the opening of the book building process and shall disclose, in addition to all other requirements:

(1) the size of the issue and the amounts to be raised through the book building and fixed price portions;

(2) the criteria for bid consideration and selection in the book building process;

(3) the duration of the book building period;

(4) the method and process of bidding;

(5) the names and addresses of the book runner or syndicate members operating the bidding terminals for submitting bids.

Provided the information memorandum shall be approved pending inclusion of the price of the offer and the quantum of securities to be issued.

Appointment of the book runner
5. The book runner shall be nominated by the issuer from amongst persons who are qualified to act as transaction advisers and shall be identified as such in the information memorandum.

Circulation of information memorandum
6. The information memorandum approved by the Authority shall be circulated by the book runner to the participating entities inviting offers for the securities in respect of the book building portion.

Records of orders on book building portion
7. The book runner on receipt of the orders shall maintain a record of all the participating entities’ names and the number of securities ordered and the price at which the participating entity is offering to subscribe to securities under the book building process.

Determination of the offer price.
8. At the close of the book building period and following a review of the orders received in accordance with the criteria disclosed in the information memorandum, the book runner and the issuer shall determine the price at which the securities shall be offered to the public.

Price for the offer shall be the same.
9. The issue price for the book building portion and fixed price portion categories shall be the same.

Issuer to ensure adequate arrangements are made to secure payment.
10. The issuer and book runner shall ensure that adequate arrangements for funds are made by all participating entities to support any offers lodged during the book building process. The nature of the arrangement required of participating entities shall be disclosed in the information memorandum.

Allotment for the book building portion category.
11. The information memorandum shall indicate one date of allotment which shall be deemed date of allotment for the both the book building and fixed price portions.

Responsibility of the book runner.
12. The book runner shall have primary responsibility for the book building process.

Securities to be offered through book building.
13. An issuer may offer up to one hundred per cent of the offer securities through a book building process subject, where appropriate, to compliance with eligibility requirements relating to listing.

Indication of floor price or price band.
14. The information memorandum may prescribe a floor price or an indicative price band for the book building process and shall give the basis for the determination of the same.

Determination of the number of securities to be offered.
15. On establishment of the offer price, the quantum of securities to be offered shall be determined based on the issue size divided by the price which has been determined.

No participation incentives
16. No incentive, whether in cash or kind, shall be paid to investors to participate in the book building process or the offer of securities.

Communication of allocation to participating entities.
17. On determination of entitlements in the book building process the number of securities which each participating entity is to be allocated shall be communicated to the respective participating entity within 24 hours and a return on all allocations shall be made to the Authority within the same period.

Registration of the final information memorandum with the Registrar of Companies.
18. The information memorandum containing all disclosures required under these regulations including the price and the number of securities offered shall be registered with the Registrar of Companies.

PART III—ADDITIONAL DISCLOSURES

Additional disclosures.
19. The following additional disclosure requirements shall be made in the information memorandum:

(1) The particulars of syndicate members of the book runner where more than one book runner is appointed.

Provided that the rights, obligations and responsibilities of each shall be defined in a binding agreement.

(2) The following statement shall be given under the basis for issue price:

"The issue price has been determined by the issuer in consultation with the book runner, on the basis of assessment of demand from the participating entities for the offered securities by way of book-building."

(3) The following accounting ratios shall be given under the basis for issue price for each of the accounting periods for which the financial information is given where applicable:

(a) Earning per share, pre-issue, for the last five years, as adjusted for changes in capital.

(b) Price earning ratio (P/E), pre-issue and comparison thereof with industry P/E where available.

(c) Average return on net-worth in the last five years.

(d) Net-Asset value per share based on last balance sheet.

(4) The accounting ratios disclosed in the information memorandum shall be calculated after giving effect to the consequent increase of capital on account of compulsory conversions outstanding, as well as on the assumption that the options outstanding, if any, to subscribe for additional capital shall be exercised.

PART V—PROCEDURE FOR BIDDING

Procedure for bidding.
20. The method and process of lodging of offers during the book building process shall be subject to the following:

(1) Bidding during the book building period shall be open for at least 3 days.

(2) Bidding shall be conducted on an electronically linked transparent system of computer terminals.

Provided that the Authority may, in writing, authorize bidding to be conducted otherwise than on an electronic system on a case by case basis.

(3) The syndicate members shall ensure that at least one electronically linked computer terminal is available for purposes of bidding at all locations where bids may be submitted.

(4) All locations where bids may be lodged shall be specified in the information memorandum.

(5) Investors shall place their bids only through the syndicate members who shall be responsible for ensuring that bids are only accepted from participating entities.

(6) The investors shall have the right to revise their bids in line with the procedure to be prescribed in the information memorandum.

Provided that where the Authority has authorized bidding to be conducted otherwise than on an electronic facility, investors shall not have rights to revise their bids.

(7) Bidding form—

(a) There shall be a standard bidding form to ensure uniformity in bidding and accuracy of information.

(b) The bidding form shall contain information about the investor, the price and the number of securities that the investor wishes to bid for.

(c) All bidding forms shall be serially numbered.

(d) The bidding form shall be dated and time stamped prior to being issued in duplicate and signed by the investor and countersigned by the syndicate member, with one form retained by the investor and the other by the book runner or the syndicate member.

(8) At the end of each day of the bidding period the demand shall be displayed graphically on the computer terminals for the information of the syndicate members as well as the investors and a record maintained by the book runner.

PART VI—ALLOCATION AND ALLOTMENT PROCEDURE

Allocation in case of under subscription.
21. In case of an under subscription in any category, the undersubscribed portion may be allocated to the bidders in the other categories in accordance with the allocation policy disclosed in the information memorandum.

Allocation criteria to be disclosed.
22. The allocation of securities to investors under the book building portion shall be determined by the issuer and the book runner in accordance with criteria explicitly set out in the information memorandum.

Period of fixed price offer.
23. Following the book building process—

(1) The offer period for the fixed price portion, shall open within 5 working days from the date of closure of bidding; and

(2) The fixed price offer shall remain open for a period of at least 10 working days.

Investors eligible to make application in fixed price offer
24. The investors who have participated in the book building process shall not be barred from participating in the fixed price portion of the offer.

PART VII—MAINTENANCE OF BOOKS AND RECORDS

Separate collection accounts
25. The issuer shall open two different accounts for collection of application moneys, one for the book building portion and the other for the fixed price portion category.

Book runner to maintain the result of the allocation process
26. A final book of demand showing the result of the allocation process shall be maintained by the book runner.

Records to be maintained
27. The book runner, any syndicate member, participating entities and other intermediaries involved in the book building process shall maintain adequate records on the book building process.

Authority’s power to inspect records
28. The Authority shall have the power to inspect the records, books and documents relating to the book building process.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

112-Capital Markets Licensing Requirements (General) (Amendment) Regulations, 2013

112-Capital Markets Licensing Requirements (General) (Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 112

THE CAPITAL MARKETS ACT
(Cap. 485A)

IN EXERCISE of the powers conferred by section 12 (1) of the Capital Markets Act, the Cabinet Secretary to the National Treasury makes the following Regulations:—

THE CAPITAL MARKETS (LICENSING REQUIREMENTS) (GENERAL) (AMENDMENT) REGULATIONS, 2013

Citation.
1. These Regulations may be cited as the Capital Markets (Licensing Requirements) (General) (Amendments) Regulations, 2013.

Sub. Leg
2. Regulation 2 of the Capital Markets (Licensing Requirements) (General) Regulations (hereinafter referred to as “the principal Regulations”) is amended by inserting the following new definition in proper alphabetical sequence—

"liquid capital" in relation to a licensed entity, means the amount which the liquid assets of a licensed entity exceed its liabilities, as may be prescribed by the Authority;

3. Regulation 16of the principal Regulations is amended by deleting paragraphs (3), (4) and (5) and substituting therefor the following new paragraph-

“(3) A stock broker shall maintain a liquid capital of thirty million shillings or eight per cent of its total liabilities, whichever is higher.”

4. Regulation 17 of the principal Regulations is amended-

(a) in paragraph (2), by deleting subparagraph (b); and

(b) by deleting subparagraphs (4), (5) and (6) and substituting therefor the following new paragraph—

“(4) A dealer shall maintain a liquid capital of thirty million shillings or eight per cent of its total liabilities, whichever is higher.”

5. Regulation 30 of the principal Regulations is amended by deleting paragraphs (4), (5) and (6) and substituting therefor the following new paragraph-

“(4) An investment adviser shall maintain a liquid capital of one million shillings or eight percent of its total liabilities, whichever is higher, and a fund manager shall maintain a liquid capital of five million shillings or eight percent of its total liabilities, whichever is higher.”

6. Regulation 44 of the principal Regulations is amended by deleting subparagraphs (3), (4) and (5) and substituting therefor the following new subparagraph—

“(4) An investment bank shall maintain a liquid capital of thirty million or eight per cent of its total liabilities, whichever is higher.”

7. Regulation 45 of the principal Regulations is amended by—

(a) deleting paragraph (2) and substituting therefor the following new paragraph—

“(2) An applicant shall be—

(a) a bank licensed under the Banking Act [Cap.488];

(b) an investment bank or a fund manager;

(c) an insurance company licensed under the Insurance Act [Cap.487]; or

(d) any other person who meets the requirements of this Part and approved by the Authority,

and who shall demonstrate effective capacity and expertise in dealing in securities.”

(b) inserting the following new paragraph immediately after the new paragraph (2)—

“(3) An applicant under paragraph (2) shall demonstrate effective capacity and expertise in dealing in securities.”

(c) renumbering paragraph (3) as (4).

8. Regulation 46 of the principal Regulations is amended by—

(a) deleting paragraph (d)(iii);

(b) inserting the following new paragraphs (c) and (d) immediately after paragraph (b)—

“(c) evidence of the minimum paid up share capital prescribed by the Authority;

(d) evidence of the minimum financial resources and financial capability prescribed by the Authority;”

(c) renumbering paragraphs (c) and (d) as (e) and (f), respectively.

9. The principal Regulations are amended by deleting regulation 47.

10. Regulation 48of the principal Regulations is amended—

(a) by deleting paragraph (1) and substituting therefor the following new paragraph—

“(1) An authorized securities dealer shall be—

(a) restricted to dealing in fixed income securities whether listed on an approved exchange or not;

(b) entitled to trade on behalf of others as well as on their own account in such segment; and

(c) required to implement necessary operational, trading and settlement procedures and systems necessary to minimize settlement and counter party risk and manage conflicts of interest.

(b) by adding the following new paragraph immediately after paragraph (2)—

(3) An authorized securities dealer shall comply with the provisions on client accounts, conduct of business, prohibited dealings and associations and investment requirements and appointment of custodian relating to stockbrokers, stockbroking agents, dealers, investment advisers and fund managers and payment of transaction and investor compensation fees relating to stockbrokers and dealers as set out in these Regulations, where applicable.

11. Regulation 49 of the principal Regulations is amended by inserting the words “in addition to the requirements specified under regulation 48(3)” immediately before the word “every”.

12. The principal Regulations are amended by deleting regulation 50 and substituting therefor the following new regulation–

Report of dealing transactions.
50. (1) Every authorised securities dealer shall, in respect of all its transactions in securities, whether or not such securities are traded on an approved exchange, submit to the Authority-

(a) monthly reports and accounts within fifteen days of the end of each calendar month;

(b) quarterly reports and accounts within fifteen days of the end of each calendar quarter;

(c) half yearly reports and accounts within thirty days of the end of each half year;

(d) audited annual accounts within three months following the end of the authorized securities dealer financial year; and

(d) a financial statement complying with the disclosures prescribed under the Fourth Schedule of these Regulations.

(2) The Authority may require such other form of financial statement as it may from time to time specify.

(3) The reports referred to in paragraph (1) shall include particulars on the—

(a) type of securities;

(b) total value of securities traded in terms of sales and purchases during the relevant period; and

(c) average yield of the total value of securities traded during the relevant period.

13. Regulation 57 of the principal Regulations is amended by adding the following new paragraph immediately after paragraph (d)—

(e) transfer not resulting in any change in beneficial ownership otherwise than for purposes of regulation 57(c), (d) or section 31(1A)(ii) of the Act.

14. Regulation 58 of the principal Regulations is amended by inserting the following proviso immediately after the sentence—

“Provided that a private transfer under regulation 57(a) shall be subject to the prevailing prescribed brokerage commission.”

15. The Principal Regulations are amended by deleting regulation 59 and substituting therefor the following new regulation—

Application for approval of a private transfer.
59. (1) Where it is intended to effect a private transaction of a listed security under regulation 57 (a),

(b) and (e), a stockbroker representing the proposed transferee shall assess, endorse and submit a written application with the required information and supporting documents—

(a) in the case of certificated securities, to the securities exchange where the security is listed, and

(b) in the case of immobilized securities, to the central depository at which the security is immobilized, stating reasons why the proposed transaction is eligible to be transferred in a private transaction.

(2) Where an application is made under regulation 57(a) or (b), the securities exchange or a central depository, as the case maybe, shall notify the stockbroker within seven days of receiving the application whether the securities exchange or the central depository objects to the private transaction or not, after examining and satisfying itself that the proposed transfer is eligible for consideration as a private transaction in accordance with these Regulations.

(3) The securities exchange or a central depository, as the case maybe, shall, upon determination of any application made under regulation 57(a) or (b), approve and simultaneously notify the Authority that the application complies with regulation 57 (a) or (b).

(4) The securities exchange or the central depository shall, upon receipt of an application made under regulation 57(e), forward the application together with its recommendations to the Authority for approval.

(5) The securities exchange and the central depository shall jointly submit to the Authority, guidelines for approval in respect of the processing requirements of a private transfer under regulation 57(a) and (b).

(6) The guidelines stipulated under subparagraph (5) 3 shall apply to all stockbrokers.

16.The Second Schedule of the principal Regulations is amended in Part III—

(a) by inserting the following new paragraph immediately after paragraph (d)—

(dd) Issuer of regional fixed income securities-each East African Partner State regulator approving the issue shall receive an equal share of the evaluation fee of 0.1% of the value of the offer subject to a maximum of the local currency equivalent to United States of America dollars 200,000 and a minimum of the local currency equivalent to United States of America dollars 20,000.

(b) in paragraph (i)—

(i) by deleting subparagraph (i) and substituting therefor the following new subparagraph—

(i) transfer in settlement of an estate of a deceased person or a transfer not resulting in a change in beneficial ownership otherwise than for purposes of (ii) and (iii) below.

 

KSh. 1,500 per

application (including

an application relating

to a portfolio of

securities), provided that

where the total value of

securities in the

application is below

KSh. 10,000, no fee

shall be payable.

 

ii) by adding the following new proviso immediately after subparagraph (ii)—

“Subject to a maximum of KSh. 100,000”.

17. The Fifth Schedule of the principal Regulations is amended by inserting the following new item immediately after item 3—

4. Private Transfer Fees

Regulation 57 (a)

fees levied at 2.1% of

the value of

transaction (being

prescribed brokerage

commission) where

transaction value is

below Kshs. 100, 000

(subject to a

maximum of 1.5%)

and shared as

follows-

 

BROKERS &

INVESTMENT

BANKS.

NSE

CDSC

 

Certified Securities

55%

45%

NIL

 

Immobilized Securities

55%

NIL

45%

 

 

 

 

 

Regulation 57(b) or (e) Kshs. 1,500 per

application

(including an

application relating to a portfolio of

securities), (provided

that where the total

value of securities in

the application is

below Kshs. 10,000,

no fee shall be

payable) and shared

as follows-

Certified Securities

55%

45%

NIL

Regulation 57 (c)…… Transfer arising out of the re-organisation of the share capital of a listed

company that does not result in change of beneficial interest in such share capital…………0.1%

(percentage of the nominal value of the shares) and payable to the Authority.

 

 

 

 

 

 

 

 

 

Regulation 57 (c) or (d)……Any other transfer that results in change of beneficial interest in the

shares capital of a listed company, including any transfer under a take-over scheme, merger or

acquisition, approved by the Authority at 0.5% (percentage of the market value of the shares) and

payable to the Authority

 

 

 

 

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

111-Insurance Appeals Tribunal Rules, 2013

111-Insurance Appeals Tribunal Rules, 2013

18th June, 2013

LEGAL NOTICE NO. 111

THE INSURANCE ACT
(Cap. 487)

IN EXERCISE of the powers conferred by section 169 (6) of the Insurance Act, the Cabinet Secretary to the National Treasury makes the following Rules:—

THE INSURANCE (INSURANCE APPEALS TRIBUNAL) RULES, 2013

Citation.
1. These Rules may be cited as the Insurance (Insurance Appeals Tribunal) Rules, 2013.

Interpretation
2. In these Regulations, unless the context otherwise requires—

“appeal” means an appeal to the Tribunal;

“appellant” means the person entering an appeal, the advocate or duly authorized agent of that person;

“Chairman” means the Chairman of the Tribunal appointed as such under section 169(2) of the Act;

“Company” means the Kenya Reinsurance Corporation Limited;

“member” means a person appointed as a member of the Tribunal under section 169(2) of the Act;

“memorandum” means a memorandum of appeal presented under rule10 of these Rules;

“Secretary” means the Secretary to the Tribunal appointed under rule 6 (1) of these Rules;

“Tribunal” means the Insurance Appeals Tribunal established under rule 4.

Saving of the Inherent Power of the Tribunal.
3. Nothing contained in these Rules shall limit or otherwise affect the power of the Tribunal to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Tribunal.

Establishment of the Tribunal and Tenure of Office.
4. (1) There shall be established a Tribunal to be known as the Insurance Appeals Tribunal for the purpose of hearing appeals under the Act.

(2) The Chairman and members of the Tribunal appointed under section 169(2) of the Act shall hold office for a term of three years but shall be eligible for re-appointment for one further term of three years.

(3) A person shall not be qualified to be appointed as the Chairman or a member of the Tribunal or if already appointed shall become disqualified if—

(a) he is a director, officer, employee or shareholder, whether directly or indirectly, of an insurer, broker, Medical Insurance Provider, insurance agent or any other member of the insurance industry;

(b) has been adjudicated bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit;

(c) has previously been involved in the management of an insurer that has collapsed.

(4) A member of the Tribunal may at any time resign his office by notice in writing addressed to the Cabinet Secretary.

(5) The Cabinet Secretary may cancel the appointment of the Chairman or a member of the Tribunal on the ground of his infirmity, incapacity or misbehaviour, or if a member is absent from three consecutive meetings of the Tribunal without leave of the Tribunal.

(6) Subject to these Rules, the Tribunal may act notwithstanding a vacancy in its membership, and the presence or participation of a person not entitled to be present or participate in the proceedings of the Tribunal as a member shall not invalidate the proceedings.

Powers of the Chairman.
5. (1) The Chairman shall have the power to give directions for—

(a) furnishing of further particulars and supplementary statements;

(b) filing and exchange of documents;

(c) framing of issues; and

(d) other directions as are necessary to enable the parties to prepare for the hearing or to assist  the Tribunal to determine any issue.

(2) The Chairman, in matters before the Tribunal, shall have the same powers as vested in the Registrar of the High Court and shall exercise the power, mutatis mutandis, in accordance with the Civil Procedure Rules.

Tribunal Secretary.
6. (1) The Cabinet Secretary shall appoint a person with relevant experience and competency in law, insurance, actuarial science, finance or economics as a Secretary to the Tribunal.

(2) Subject to the Rules of confidentiality, the Secretary shall, in matters relating to appeals to the Tribunal and procedure therefore, comply with any general and special directions lawfully given by the Chairman.

(3) The Secretary shall, by notice in the Gazette, publish his address for the presentation of service of documents for the purposes of these Rules, and shall in the same manner publish any change in that address.

Presentation of appeals.
7. (1) Every appeal under section 146 of the Act by an insurer aggrieved by a refusal of the Company under that section shall be entered by presentation of a memorandum of appeal, together with such number of copies as may be necessary, to the Secretary.

(2) Every appeal under section 173 of the Act by a person aggrieved by a decision of the Commissioner under that section, shall be entered by presentation of a memorandum of appeal, together with such number of copies as may be necessary, to the Secretary.

Fees.
8. The fees prescribed by the Minister under section 169 (6) (a) shall be as set out in the Schedule to these Rules.

Forms.
9. In exercising its functions, the Tribunal shall have power to prescribe the forms and any other documents as it may deem necessary.

Memorandum of Appeal.
10. A memorandum of Appeal shall be signed by the appellant and shall set forth concisely under distinct heads, numbered consecutively, the grounds of appeal without any argument or narrative.

Memorandum to be accompanied by appellant’s Statement and fees.
11. (1) Each copy of a memorandum shall be accompanied by a statement signed by the appellant setting out precisely all the facts on which the appeal is based and referring specifically to any documentary or other evidence which it is proposed to adduce at the hearing of an appeal, and there shall be annexed to the statement of facts a copy of the decisions appealed against and any other document referred to upon which the appellant proposes to rely on as evidence at the hearing of the appeal.

(2) The fee for presentation of a memorandum shall accompany the memorandum and shall be paid in favour of the Principal Secretary to the Treasury.

Service of Memorandum on Commissioner.
12. Within three working days after the presentation of a Memorandum, the Secretary shall transmit to the Commissioner or the Company, as the case may be, a copy of the Memorandum, the statement of facts and any other documents annexed thereto.

Commissioner’s dealing with Memorandum.
13. (1) Where the Commissioner or the Company does not accept any of the facts of the appellant, the Commissioner or the Company, as the case may be, shall file with the Secretary a statement of facts within fifteen days after service thereof under rule 12, together with such number of copies as may be necessary and the provisions of rule 11 shall mutatis mutandis apply to that statement of facts.

(2) At the time of filing a statement of facts under paragraph (1), the Commissioner or the Company, as the case may be, shall serve a copy thereof together with copies of any documents annexed thereto, upon the appellant or any other interested party.

(3) If the Commissioner or the Company, as the case may be, does not desire to file a statement of facts under this rule, the Commissioner or the Company shall forthwith give written notice to that effect to the Secretary and to the appellant, and in that case the Commissioner or the Company shall be deemed at the hearing of the appeal to have accepted the facts set out in the statement of facts of the appellant.

Notice to Chairman of Memorandum and Hearing Notice.
14. (1) The Secretary shall forthwith after receipt of the Memorandum notify the Chairman of the receipt.

(2) The Chairman shall, after the Commissioner or the Company, as the case may be, has filed a statement of facts or has notified the Secretary that he or the Company does not intend to do so, fix a time, date and place for the meeting of the Tribunal for the purpose of hearing the appeal.

(3) The Secretary shall cause such notice of the time, date and place of the meeting to be served on the appellant and the Commissioner or the Company, as the case may be.

(4) The Secretary shall cause to be supplied to each member of the Tribunal a copy of the notice of hearing and of all documents received by him from the parties to the appeal.

(5) Unless the parties to the appeal otherwise agree, each party shall be entitled to not less than seven days’ notice of the time, date and place fixed for the hearing of the appeal.

Interim relief and Interlocutory application.
15. (1) The appellant may make application to the Secretary that the Tribunal suspends operation of a decision of the Company or Commissioner which is subject of appeal.

(2) The Tribunal may determine the application on the basis of written presentation if the parties to the proceedings in the Tribunal agree in writing or it may direct the parties or any interested party to appear before it.

(3) The Tribunal shall notify the parties and the interested parties of its determination giving a statement of its reasons.

(4) All interlocutory applications made to the Tribunal shall be in such form as may be directed by the Tribunal, signed by the applicant, his advocate or a duly authorised agent, supported by an affidavit.

(5) A party served with an application as directed by the Tribunal, may file a Replying Affidavit or Grounds of Opposition.

(6) The Tribunal shall have the power to hear any party who desires to be heard despite failure to file Replying Affidavit or Grounds of Opposition.

Amendment of Memorandum of Appeal.
16. (1) An appellant may file with the Secretary a notice of amendment of the Memorandum at any time before the hearing.

(2) Leave to amend the Memorandum—

(a) shall not be granted unless the Commissioner or the Company, as the case may be, has been afforded an opportunity to make representation on the proposed amendment;

(b) may be granted on such terms, including terms as to costs as the Tribunal thinks fit.

(3) Where the Memorandum of Appeal is amended, the Secretary shall immediately notify any party or interested party to the appeal.

(4) The Commissioner or the Company or any other interested party may amend any response where the Memorandum of Appeal has been amended within such time as may be directed by the Tribunal.

Procedure at hearing of appeal.
17. At the hearing of an appeal the following procedure shall be observed—

(a) the Commissioner or the Company, as the case may be, shall be entitled to be present or to be represented;

(b) the appellant shall state the grounds of his appeal and may support it by any relevant evidence:

Provided that, except with the consent of the Tribunal and upon such terms as it may determine, the appellant may not at the hearing rely on any grounds of appeal other than a ground stated in the Memorandum and may not adduce any evidence of facts or documents unless those facts have been referred to in, and copies of those documents have been annexed to, the statement of facts of the appellant;

(c) at the conclusion of the statement and evidence on behalf of the appellant the Commissioner or the Company, as the case may be, shall be entitled to make such submissions, supported by such relevant evidence, as may be necessary to support his case, and the provisions of the proviso to subparagraph (b) shall apply mutatis mutandis to evidence of facts and documents to be adduced by the Commissioner or by the Company.

(d) the appellant shall be entitled to reply but may not raise any new issues or arguments in the reply;

(e) the Chairman or any member of the Tribunal shall be entitled at any stage of the hearing to ask such questions of the appellant or the Commissioner or the Company, as the case may be, or any witness examined at the hearing as he considers necessary to the determination of the appeal;

(f) a witness called and examined by either party may be cross examined by the other party to the appeal and, if so cross examined, may be re-examined;

(g) a witness called and examined by the Tribunal may be cross examined by either party to the appeal;

(h) the Tribunal may adjourn the hearing of the appeal for the production of further evidence or for other good cause, as it considers necessary, on such terms as it may determine;

(i) the decision of the Tribunal shall be by a majority;

(j) the proceedings of the hearing shall be maintained and the decision of the Tribunal recorded therein.

(2) The Tribunal may, for good and sufficient cause, and in particular where necessary or expedient in circumstances where publicity would prejudice the interests of justice, exclude from its proceedings persons other than the parties thereto and their legal representatives.

(3) In matters of procedure not governed by these Rules or the Act, the Tribunal may determine its own procedure.

Admissibility of documents.
18. Except where the Tribunal in any particular case otherwise directs or where any party to the appeal objects, copies of documents shall be admissible in evidence:

Provided that the Tribunal may at any time direct that the original shall be produced notwithstanding that a copy has already been admitted in evidence.

Setting aside judgement, order or award.
19. A judgement, order or award made ex-parte under these Rules may, on application, be set aside on such terms as may be just.

Withdrawal of appeal or opposition.
20. (1) The appellant may withdraw an appeal, and the Commissioner or Company may withdraw its opposition to an appeal, at any time before the hearing by giving notice in writing to the Secretary and the Secretary shall transmit the notice to the other party.

(2) At the hearing, the appellant may give notice to the Tribunal that it desires to withdraw the appeal in which case such appeal shall be deemed dismissed and thereupon the Tribunal shall bring the hearing to a close with such orders as may be just and accordingly notify parties to the appeal.

(3) At the hearing, the Commissioner or Company may give notice that it desires to withdraw its opposition to the appeal and thereupon continue with the proceedings without the opposition.

Costs.
21. The costs of an appeal shall be costs in the discretion of the Tribunal and shall be taxed by the Registrar of the High Court in the same manner as the bills of costs in the High Court.

Appeal to the High Court.
22. (1) Any party to the proceedings of the Tribunal who is dissatisfied with the decision of the Tribunal, if it involves a question of law, shall appeal to the High Court within one month from the date the decision is conveyed to him and the decision following such appeal shall be final.

(2) The Chief Justice may make Rules governing the making of appeals arising from the decision of the Tribunal and providing for the fees to be paid, the scale of costs of any such appeal, and the procedure to be followed therein, and until such Rules are made, and subject thereto, the provisions of the Civil Procedure Act shall apply as if the matter appealed against were a decree of a subordinate court exercising original jurisdiction.

Registers.
23. The Tribunal shall cause to be kept and maintained a register on all disputes or appeals referred to the Tribunal containing the following particulars-

(a) the names of the parties;

(b) the appeal number;

(c) date of filing the appeal;

(d) the relief sought; and

(e) the final determination or order and the date thereof.

Registries.
24. (1) The principal registry of the Tribunal shall be at Nairobi.

(2) The Tribunal may establish such other sub-registries at such other places as and when it deems necessary.

Savings Provisions.
25. (1) All the proceedings pending before the Tribunal immediately before the commencement of these Rules may be continued and concluded as if they had been commenced under or by virtue of these Rules.

(2) Every decree, order or award of the Tribunal which immediately before the commencement of these Rules had not been executed or enforced shall be executed or enforced in the same manner as if it were a decree or order of the Tribunal made in accordance with these Rules.

Revocation of L.N.542/1988.
26. The Insurance (Insurance Appeals Tribunal) Rules of 1988 are revoked.

SCHEDULE (r.8)

Filing fees: KSh.

(a) Filing of Memorandum of Appeal ..................... 10,000

(b) Filing of Defence ........................... 1,000

(c) Filing of interlocutory applications ........................ 1,000

(d) Presentation of Statements of Facts .................. 500

(e) Filing of Affidavit ............................... 500

(f) Certification of Documents (per page) .......................... 300

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

110-Customs and Excise Excisable Goods Management System Regulations, 2013

110-Customs and Excise Excisable Goods Management System Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 110

THE CUSTOMS AND EXCISE ACT
(Cap. 472)

IN EXERCISE of the powers conferred by section 234 of the Customs and Excise Act, the Cabinet Secretary to the National Treasury makes the following Regulations:—

THE CUSTOMS AND EXCISE (EXCISABLE GOODS MANAGEMENT SYSTEM) REGULATIONS, 2013

Citation.
1 These Regulations may be cited as the Customs and Excise (Excisable goods Management System) Regulations, 2013.

Interpretation
2. In these Regulations, unless the context otherwise requires—

“authorised officer” means an officer authorised by the Commissioner to perform any act under these Regulations;

“compounded spirit” means spirit ready for consumption as a beverage and put up for retail;

“contractor” means a person appointed by the Commissioner to supply, install, and maintain the System;

“Excisable goods management system” in these Regulations referred to as “the System” includes excise stamps, track and trace system, production accounting system and related software and hardware;

“importer” means a person registered as an importer by the Commissioner to import excisable goods specified under these Regulations;

“Manufacturer” means a manufacturer licensed to manufacture goods specified in these Regulations;

“package” means packet, bottle or similar retail unit of excisable goods specified in these Regulations;

“printer” means a person appointed by the Commissioner to print and supply excise stamps; and

Excisable goods to be affixed with excise stamps.
3. Every package of excisable goods, except motor vehicle, manufactured in or imported into Kenya shall be affixed with an excise stamp of a type and in a manner specified by the Commissioner.

Features of the excise stamp.
4. Every excise stamp required to be affixed under regulation 3 shall be of such specifications as-

(a) to deter counterfeiting;

(b) to facilitate tracking of the stamps and excisable goods along the supply chain;

(c) to enable accounting for the production of excisable goods manufactured or imported; and

(d) to facilitate any persons in the supply chain to authenticate the stamps and excisable goods.

Excise stamps fee.
5. (1) Manufacturers and Importers shall purchase excise stamps from the Commissioner at a prescribed fee.

(2) The fee prescribed by the Commissioner under paragraph (1), shall not exceed the cost of the stamps and the maintenance costs of the System.

(3) The revenue from the sale of excise stamps shall be retained by the Commissioner for financing the System.

Registration.
6. (1) The Commissioner shall register importers of any excisable goods specified under these Regulations subject to such conditions as he may deem necessary.

(2) A person shall not manufacture or import excisable goods for which an excise stamp is required to be affixed in accordance with these Regulations, unless that person is licenced or registered by the Commissioner.

Application for excise stamps
7. (1) A manufacturer or importer shall apply to the Commissioner for excise stamps in the prescribed format.

(2) An application made under subparagraph (1) shall be submitted to the Commissioner at least ninety days prior to the manufacture or importation of the goods.

(3) A manufacturer or importer shall pay for excise stamps upon approval by the Commissioner.

(4) In case of imports, the Commissioner may require evidence of importation before delivery of excise stamps.

(5) Despite subparagraph (4), the Commissioner may, subject to such conditions as he may specify, allow delivery of excise stamps to a person before importation.

Forecast of Consumption.
8. (1) The Commissioner may require a manufacturer or importer to provide, at least 120 days before the beginning of every financial year, a forecast of quantities of excise stamps which the manufacturers and importer intend to use in the subsequent year.

(2) A manufacturer or importer shall bear the cost of the excise stamps procured under the forecast and not used.

Appointments.
9. (1) Subject to the law regulating public procurement, the Commissioner shall appoint a suitable person to –

(a) print and deliver excise stamps;

(b) develop and install the System; and

(c) install any other related systems.

(2) A person appointed under paragraph (1) shall not print any excise stamps required under these Regulations unless requested by Commissioner.

Delivery of excise stamps.
10. (1) The Commissioner may, where necessary and subject to such conditions as he may impose, require the printer to deliver excise stamps directly to a manufacturer, or importer.

(2) The printer shall notify the Commissioner of the quantity and type of the excise stamps supplied under paragraph (1) within such period as the Commissioner may require.

Place and time of affixing excise stamps.
11. (1) Excise stamps shall be affixed on excisable goods –

(a) in case of locally manufactured goods, in the production facility immediately after packaging;

(b) in the case of imported goods, in a place approved by the Commissioner within seven days upon clearance from Customs for home use;

(c) in any other case, at a place appointed by the Commissioner.

12. Despite paragraph (1) (b), the Commissioner may allow excise stamps on imported excisable goods to be affixed in the production facility in the exporting country subject to such conditions as the Commissioner may specify.

Return or transfer of excise stamps.
13. (1) Manufacturers or importers shall return unused excise stamps to the Commissioner when—

(a) they stop manufacturing;

(b) there are defects in the excise stamp sheets or reels;

(c) they fail to import;

(d) the excise stamps are declared out of use by the Commissioner;

(e) the Cabinet Secretary for finance exclude the products from the requirements of these Regulations;

(2) Except for the stamps returned under paragraph 1(a) and (b), the Commissioner shall refund, within sixty days, the fees paid on the returned excise stamps.

Allowance for wastage and damages.
14. (1) Damaged excise stamps shall be preserved for verification by an authorised officer.

(2) Where a manufacturer or importer cannot account for the excise stamps issued to him by the Commissioner, the Commissioner shall compute excise duty and other taxes on the unaccounted excise stamps based on the highest excise rate of excise duty, value and volume of excisable goods manufactured or imported by the person.

(3) In computing excise duty on account of the unaccounted excise stamps, the Commissioner shall allow a wastage and damages not exceeding one percent of the issued stamps.

Transfer of excise stamps.
15. (1) A manufacturer or importer may, with prior approval of the Commissioner, transfer excise stamps in stock to another manufacturing unit owned by the same manufacturer or importer.

(2) The Commissioner shall prescribe the procedure and condition for transfer and accounting of excise stamps under this paragraph.

(3) A manufacturer or importer who transfers excise stamps without prior approval of the commissioner commits an offence.

Installation of the System.
16. A manufacturer or importer of excisable goods specified in these Regulations shall facilitate the installation of the System in their production or import facilities in accordance with the provisions of these Regulations.

Composition the System.
17. The System installed under regulation 16 shall be composed of —

(a) excise stamps authentication and validation equipment;

(b) devices for identification and association of each package with individual excise stamp;

(c) production accounting equipment; and

(d) devices for the control, registration, recording and transmission of data on the quantities of excisable goods to the Commissioner.

Marking of product packages.
18. (1) The Commissioner may require that the excisable goods be marked by the System on each package and in a visible place, as appropriate for the type of package, by a process of printing with indelible security ink, with codes that enable authentication, production accounting and track and trace of excisable goods.

Integration.
19. The installation, integration, preventive and corrective maintenance procedures of all the equipment comprising the System at the manufacturers or importers’ premises shall be done by an authorised contractor under the supervision of an authorised officer.

Development and supervision.
20. The Commissioner shall be responsible for –

(a) defining the functional, security and fiscal control requirements to be observed by the contractor in developing the System;

(b) supervising and monitoring the process of installing the System.

Installation of equipment and devices.
21. (1) The System shall be installed on all production lines at the manufacturers or importers premises corresponding to each packaging machine and labelling machine;

(2) The System for management of imports shall be installed in a manner prescribed by the Commissioner.

Notice of installation.
22. (1) The manufacturers and importers shall be notified in writing by Commissioner at least thirty days in advance regarding –

(a) requirements for the equipment to facilitate use of System;

(b) the adaptive features required, on each production line;

(c) the connectivity features and operating environment for the installation and operation of computers and other equipment comprising the system;

(d) the starting date of installation of the System.

(3) Manufacturers or importers shall be responsible for the cost of excise stamps applicators, adjustments and adaptations of their equipment and premises necessary to install the System on each production line.

(4) Where a manufacturer or importer is required to carry out adjustments or provide information required by the Commissioner for the installation of System, the manufacturer or importer shall carry out the adjustments or provide the information at least seven days before the starting date for installation of the System.

Manufacturer and importer to avail production lines.
23. During the installation of the System, the manufacturer or importer shall make production lines available in operating conditions.

Sealing of equipment and devices.
24. (1) After conclusion of the installation on each production line, the contractor shall list in a specific format the pieces of equipment making up the System, one copy of which shall be delivered to the manufacturer and the other to the Commissioner.

(2) The authorised officer shall secure System, in the presence of the contractor and manufacturer, by using security seals.

Manufacturer and importer to report inoperative production lines.
25. (1) The manufacturer or importer shall report inoperative production lines, within twenty-four hours of occurrence to the Commissioner who shall secure the lines using a security seal and register the action in the System.

(2) The production lines referred paragraph (1) shall not resume operation except with the authority of the Commissioner.

Security of equipment.
26. (1) A manufacturer or importer shall be responsible for conservation and security of the System installed in their premises.

(2) Manufacturer or importer shall report any operating failure or tamper of the security seals within twenty-four hours.

Effective date for use of System.
27. The Commissioner shall, through a public notice in at least two daily newspapers with national circulation, declare the date when the System shall come into effect.

Preventive and corrective maintenance of System.
28. (1) The preventive and corrective maintenance of the System shall be performed by the contractor, under supervision of authorized officer.

(2) The contractor shall provide to the Commissioner the list of technicians authorised to carry out installation and maintenance of the System.

Advance reports on new brands etc.
29. Manufacturer or importer shall—

(a) declare to Commissioner packages and labels of brands manufactured or imported including those for export and duty free;

(b) declare to the Commissioner, at least thirty days in advance the start of production of new brands of goods or any change in the graphic art of existing ones, together with the corresponding packages and labels;

(c) apply at least thirty days to the Commissioner for installation or removal of the System, as the case may be, in the occurrence of the following events—

(i) reactivation of inoperative production lines;

(ii) deactivation of production lines;

(iii) maintenance and reallocation of production lines;

(iv) installation of new production lines; and

(v) acquisition or sale of industrial machinery and equipment.

Marking of duty free products and packages.
30. (1) All packages of duty free or export excisable goods specified in these Regulations shall bear distinct markings to enable track and trace.

(2) The material wrapping the package for wholesale purposes shall be printed—

(a) in the case of exports, the country of final destination; or

(b) in case of excisable goods for consumption in Kenya, “FOR USE IN KENYA”;

(c) in case of excisable goods for sale to Duty-free shops, or Diplomatic shops, “DUTY FREE”; and

(d) in the case of excisable goods for consumption by Kenya Defence Forces, “KENYA DEFENCE FORCES”.

Exemption from excise stamps.
31. (1) Excisable goods—

(a) manufactured for export, Kenya Defence Forces or delivered to a duty free shop;

(b) imported or purchased from a duty free shop by privileged persons and institution listed in the Third Schedule to the Act;

(c) with approval of the Commissioner of Customs, imported into Kenya as samples or by international mail, with no commercial value, shall be exempted from the requirement of excise stamps.

Verification of stamps.
32. A manufacturer, importer, distributor, retailer or any other person involved in the supply chain of excisable goods, shall verify and authenticate the stamps and excisable goods before admitting them in their premises or in any way handle the goods.

Prohibition and offences.
33. (1) A person shall not—

(a) import any excisable goods on which an excise stamp should be affixed without being registered with the Commissioner in accordance with these Regulations;

(b) fail to maintain excise stamp register or records as the Commissioner may prescribe;

(c) fail to affix an excise stamp on the package of excisable goods in such secure manner as the Commissioner may prescribe;

(d) print over or deface an excise stamp affixed on a package;

(e) knowingly submits a return that is incorrect;

(f) fail to furnish any information that the Commissioner may require;

(g) be in possession of excisable goods on which the excise stamps have not been affixed and which are not exempted under these Regulations;

(h) attempt to acquire or acquire an excise stamp without authority from the Commissioner;

(i) counterfeit, or print, make or in any way create an excise stamp without the authority of the Commissioner;

(j) be found in possession of an excise stamp printed, made or in any way acquired without the authority of the Commissioner;

(k) be found in possession of, convey, distribute, sell, offer for sale or by way of trade expose excisable goods without affixing excise stamps in accordance with these Regulations.

(2) A person who contravenes the provisions of paragraph (1) commits an offence and is be liable upon conviction to a fine not less than one hundred thousand shillings and not more than one million five hundred thousand shillings or to imprisonment for a term not exceeding three years or, to both.

General penalty.
34. A person who commits an offence under these Regulations for which no specific penalty is provided is liable, on conviction, to a fine not less than one hundred thousand shillings and not more than one million five hundred thousand shillings or to imprisonment for a term not exceeding three years or, to both.

Seizure of stamps, equipment and goods.
35. The Commissioner shall seize excise stamps, equipment and goods where—

(a) excise stamps are—

(i) counterfeited;

(ii) subject to return and manufacture or importer fails to do so; or

(iii) found in the possession of persons other than to whom they have been supplied.

(b) the equipment or plant is used in the manufacture of counterfeit excise stamps;

(c) the goods—

(i) bear counterfeited excise stamps;

(ii) bear excise stamps affixed in a manner not consistent with guidelines prescribed by the Commissioner;

(iii) do not bear excise stamps as required in accordance with these Regulations.

Disposal of forfeited excise stamps and seized goods.
36. Any excisable goods, stamps and equipment which are seized under these Regulations shall be disposed in a manner that the Commissioner considers fit.

Revocation of LN. 84 of 2008.
37. The Customs and Excise (Excise Duty Stamps) Regulations, 2008 are revoked.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

109-Public Procurement (Amendment) Regulations, 2013

109-Public Procurement (Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 109

THE PUBLIC PROCUREMENT AND DISPOSAL ACT, 2005
(No. 3 of 2005)

IN EXERCISE of the powers conferred by Section 140 of the Public Procurement and Disposal Act, the Cabinet Secretary for Treasury makes the following Regulations:—

THE PUBLIC PROCUREMENT AND DISPOSAL (AMENDMENT) REGULATIONS, 2013

Citation.
1. These Regulations may be cited as the Public Procurement and Disposal (Amendment) Regulations, 2013.

2. The Public Procurement and Disposal Regulations, 2006 and Public Procurement and Disposal (Amendments) Regulations, 2009 in these regulations referred to as “the principal Regulations”, are amended by inserting the following new regulations immediately after regulation 94—

Reporting on public contract awards
96. In order fulfil the requirements of section 46(1) of the Act, every procuring entity shall on quarterly basis submit to the Authority information of all public contract awards as directed by the Authority.

6. Regulation 8 (3) (a) of the principal regulations is amended by deleting and substituting therefore the following new paragraph—

(a) maintain and update bi-annually standing lists of registered tenderers required by the procuring entity through a pre-qualification process and submit the results to the Authority for consolidation within fourteen days from date of notification.

4. Regulation 10(2) (d) of the principal Regulations is amended by deleting and substituting therefore the following new paragraph—

(d) approve the commencement of the procurement process after the annual procurement plan is approved by the accounting officer, and where applicable by the board of directors or a similar body and upon satisfaction that sufficient funds to meet the obligations of the resulting contract are reflected in its budgetary estimates, or the evidence of the availability of such sufficient funds before making an award is provided.

5. Regulation 12 of the principal regulations is amended by adding the following sub-regulation—

(11) The role of the observers shall be –

(c) to observe whether the procurement proceedings have been carried out in accordance with Section 2 of the Act and prepare a report;

(d) the report prepared under sub-regulation (a) shall simultaneously be submitted to the accounting officer and the Authority within fourteen days from date of notification of award.

Evaluation, Negotiations, Inspection and Acceptance Committee
6. Regulation 16 of the principal regulations is amended by deleting and substituting therefor the following new paragraph –

(1) For each procurement, the procuring entity shall establish an Evaluation, Inspection and Acceptance & Negotiations Committee for the purposes of carrying out the evaluation of the tenders or proposals or negotiations or inspection and acceptance of goods, works or services.

(2) A committee established under paragraph (1) shall consist of a chairman and at least three other members all appointed by the accounting officer or the head of the procuring entity upon recommendation by the procurement unit.

(3) No person shall be appointed under paragraph (2) if such person is a member of the tender committee of the procuring entity.

(4) In tender evaluations, the committee established under subparagraph (1) shall be responsible for—

(d) the technical evaluation of the tenders or proposals received in strict adherence to the compliance and evaluation criteria set out in the tender documents;

(e) committee established under paragraph (1) performing the evaluation with all due diligence and within a period of fifteen days after the opening of the tenders;

(f) the financial evaluation of the tenders or proposals received in strict adherence to the compliance and evaluation criteria set out in the tender documents or request for proposals; and

(g) performing the tender evaluation with all due diligence.

(5) Each member of the committee shall evaluate independently from the other members prior to sharing his or her analysis, questions and evaluation including his or her rating with the other members of the committee.

(6) Under no circumstances may any member of the committee enter into direct communication with any of the tenderers participating in a tender or proposal that such evaluation committee is considering.

(7) An evaluation committee shall prepare a report on the analysis of the tenders received, and final ratings assigned to each tender and submit the report to the tender committee.

(8) The report prepared under paragraph (7) shall include –

(f) the results of the preliminary evaluation, with reasons why any tenders or proposals were rejected;

(g) the scores awarded by each evaluator for each tender or proposal;

(h) a summary of the relative strengths and weaknesses of each tender or proposal;

(i) the total score for each tender or proposal; and

(j) a recommendation to award the tender to the lowest evaluated tenderer or to the person who submitted the proposal with the highest total score.

Inspection and acceptance
7. Regulations 17 of the principal regulations is amended by deleting and substituting therefor the following new paragraph –

A committee established under regulation 6 of these Regulations shall immediately after delivery of the goods, works or services –

(i) inspect and where necessary, test the goods received;

(j) inspect and review the goods, works or services in order to ensure compliance with the terms and specifications of the contract;

(k) accept or reject, on behalf of the procuring entity, the delivered goods, works or services;

(l) ensure that the correct quantity of has been received;

(m) ensure that the goods, works or services meet the technical standards defined in the contract;

(n) ensure that the goods, works or services have been delivered or completed on time, or that any delay has been noted;

(o) ensure that all required manuals or documentation have been received; and

(p) ensure issuance of interim or completion certificates or goods received notes, as appropriate and in accordance with the contract.

Procurement planning.
8. Regulation 20 (5) of the principal regulations is amended by deleting and substituting therefor the following new paragraph and adding the following sub-regulations–

(5) The consolidated annual procurement plan shall be prepared by the procurement unit and approved by both the tender committee, the head of the procuring entity and where applicable by the board of directors or a similar body.

(6) The approval of the plan in sub-regulation (5) by the tender committee shall be deemed to include approval of all alternative procurement methods as required under section 29(3) of the Act.

Prequalification documents.
9. Regulation 24(4) of the principal Regulations is amended by deleting and substituting therefor the following new paragraph –

The procuring entity shall allow the candidates at least seven days to prepare and submit their applications to be pre-qualified.

Variations to contracts.
10. Regulation 31 is amended by adding the following subregulation—

(e) the cumulative value of all contract amendments shall not increase the total contract price by more than twenty five percent from the original contract sum.

Time for international tendering.
11. Regulation 36 of the principal Regulations is amended by deleting and substituting therefor the following new paragraph –

For the purposes of section 71(c) of the Act, the minimum period of time between advertisement and deadline for submission of international tenders shall be twenty one days.

Fee for tender documents.
12. Regulation 39 of the principal Regulations is amended by deleting and substituting therefor the following new paragraph—

(1) Pursuant to section 56 (2) of the Act, procuring entity may charge a fee not exceeding one thousand shillings for hard copies of tender documents.

(2) In arriving at the fee payable under paragraph (1), a procuring entity shall only have regard to the costs related to printing, copying, and distribution or of converting the documents into electronic form.

(3) No fee shall be charged where the tender documents are—

(a) obtained electronically;

(b) for invitations for expression of interest; or

(c) for invitations for pre-qualification.

(4) Where tender documents are sold, the procuring entity shall allow potential tenderers to inspect the documents, prior to purchasing the document.

Time for preparing national tenders.
13. Regulation 40 of the principal Regulations is amended by deleting and substituting therefor the following new paragraph—

The minimum time for the preparation of national open tenders for the purposes of section 55 (1) of the Act shall be a period of fourteen days.

Tender security.
14. Regulation 41 (3) of the principal Regulations is amended by deleting and substituting therefore the following new paragraph—

(3) The tender security to be provided under section 57 of the Act shall be in any of the following forms only—

(a) cash;

(b) a bank guarantee;

(c) such insurance company guarantee as may be approved by the Authority;

(d) a letter of credit; or

(e) guarantee by a deposit taking microfinance institution, Sacco society, the Youth Enterprise Development Fund or the Women Enterprise Fund.

Period for evaluation of tenders.
15. Regulation 46 of the principal Regulations is amended by deleting and substituting therefore the following new paragraph—

(1) A procuring entity shall, for purposes of section 66 (6) of the Act, evaluate the tenders within a period of fifteen days after the opening of the tender.

(2) Where a tender is complex, and/or has attracted a high number of tenderers, the accounting officer or head of a procuring entity may extend the period for tender evaluation to a further period within the tender validity period but not exceeding thirty more days.

Procedure for restricted tendering.
16. Regulation 54(5) of the principal Regulations is amended by deleting and substituting therefore the following new paragraph—

The minimum time for the preparation of tenders for the purposes of section 73 of the Act shall be a period of seven days.

Request for proposals.
17. Regulation 55 is amended by deleting and substituting therefor the following new paragraph –

(1) A procuring entity that conducts procurement using the request for proposals method pursuant to section 76 of the Act shall be subject to the procurement thresholds set out in the First Schedule.

(2) The notice inviting expressions of interest prepared by the procuring entity pursuant to section 78 of the Act shall give a minimum period of seven days for tenderers to submit their expressions of interest.

(3) Invitation of expressions of interest may not apply where the tender committee of a procuring entity has expressly approved—

(a) direct Request for Proposals;

(b) direct procurement or Single Source Selection;

(c) restricted tendering; or

(d) request for quotations

Use of specially permitted procedures.
18. Regulation 64 (1) is amended by adding the following subregulation—

(d) Where competitive negotiations are critical for achieving value for money in the procurement of specialized goods, works or services.

Notification of the award.
19. Regulation 66(2) of the principal Regulations is amended by deleting and substituting therefor the following new paragraph –

A procuring entity shall notify an unsuccessful tenderer in writing and shall in the same letter provide reasons as to why the tender, proposal or application to be pre-qualified was unsuccessful.

Mode of filing requests.
20. Regulation 73 of the principal Regulations is amended by deleting and substituting therefore the following new paragraph—

(1) A request for review under the Act shall be made in Form RB 1 set out in the Fourth Schedule of the principal Regulations.

(2) The request referred to in paragraph (1) shall—

(a) state the reasons for the complaint, including any alleged breach of the Act or Regulations;

(b) be accompanied by such statements as the applicant considers necessary in support of its request;

(c) from the date of the occurrence of the breach complained of where the request is made before the making of an award or the notification under sections 67 or 83 of Act be made within—

(i) ten calendar days if procurement proceeding is a national tender; or

(ii) ten working days if procurement proceeding is an international tender.

(d) be submitted in three bound copies and a soft copy, pages of which shall be consecutively numbered;

(e) be accompanied by non-refundable fees set out the Second Schedule of these Regulations.

(3) Every request for review shall be filed with the Secretary of the Review Board upon payment of the requisite fees.

(4) The Secretary shall acknowledge filing of the request for review.

Notification of filing of request.
21. Regulation 74 (3) of the principal Regulations is amended by deleting and substituting therefore the following new paragraph –

Upon being served with a notification of a request, the procuring entity shall—

(a) notify the Secretary immediately of the names and contact details of all parties to the review;

(b) within five days or such lesser period as may be stated by the Secretary in a particular case, submit to the Secretary a written memorandum of response to the reasons for the request together with such documents as the Secretary may specify.

The First Schedule
22. The First Schedule of the principal regulations is amended by deleting and substituting therefor with the First Schedule of these Regulations.

The Fourth Schedule
23. Part II of the Fourth Schedule of the principal regulations is amended by deleting and substituting with the Second Schedule to these Regulations.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

108-Capital Markets Futures Exchanges Licensing Requirements Regulations, 2013

108-Capital Markets Futures Exchanges Licensing Requirements Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 108

THE CAPITAL MARKETS ACT
(Cap. 485A)

THE CAPITAL MARKETS (FUTURES EXCHANGES) (LICENSING REQUIREMENTS) REGULATIONS, 2013

ARRANGEMENT OF REGULATIONS

Regulations

PART I—PRELIMINARY

1—Citation.
2—Interpretation.

PART II—OBLIGATION TO SEEK A LICENCE AND LICENSING OF A FUTURES EXCHANGE

3—Obligation to obtain a license.
4—Application for licensing.
5—Consideration for grant of license.
6—Rules of the Exchange.
7—Trading system.
8—Grant of provisional approval.
9—Power to make inquiries and call for information.
10—Grant of license.
11—Period of license.
12—Regulatory fee.
13—Revocation of license.
14—Effect of revocation.

PART III—NETWORTH AND OWNERSHIP OF A FUTURES EXCHANGE

15—Networth requirements.
16—General conditions.
17—Shareholding in a licensed future exchange.
18—Eligibility for acquiring or holding shares.
19—Disclosure of shareholding.
20—Record keeping.

PART IV—GOVERNANCE OF FUTURES EXCHANGE

21—Composition of the board.
22—Conditions of appointment of directors.
23—Appointment of chief executive officer.
24—Code of conduct for directors and key personnel.
25—Compensation and tenure of key personnel.
26—Segregation of regulatory departments.
27—Oversight committees.
28—Advisory Committee.
29—Risk management committee.
30—Appointment of compliance officer.
31—Transfer of penalties.
32—Disclosure and corporate governance norms.

PART V—DUTIES OF A FUTURES EXCHANGE

33— Disclosure and corporate governance norms.
34— Facilities to be maintained by a futures exchange.
35—Futures exchange to assist Authority.

PART VI—SELF-REGULATORY ORGANIZATION

36—Self-Regulation.
37—Futures Exchange to oversee its trading participants.

PART VII—SELF-REGULATORY ORGANIZATION

38—Accounts and audit.
39—The Authority may appoint an auditor.
40—Annual report.

FIRST SCHEDULE—APPLICATION FOR A LICENSE TO CONDUCT THE BUSINESS OF A FUTURES EXCHANGE

SECOND SCHEDULE—LICENSING AND ANNUAL FEES FOR FUTURES EXCHANGES

THIRD SCHEDULE—CODE OF CONDUCT FOR THE DIRECTORS AND KEY PERSONNEL

PLEASE CLICK HERE TO DOWNLOAD LEGAL NOTICE

107-Central Depositories (Regulation of Central Depositories)(Amendment) Rules, 2013

107-Central Depositories (Regulation of Central Depositories)(Amendment) Rules, 2013

18th June, 2013

LEGAL NOTICE NO. 107

THE CENTRAL DEPOSITORIES ACT, 2000
(No. 4 of 2000)

IN EXERCISE of the powers conferred by section 65 of the Central Depositories Act, the Capital Markets Authority makes the following Rules:—

THE CENTRAL DEPOSITORIES (REGULATION OF CENTRAL DEPOSITORIES) (AMENDMENT) RULES 2013

Citation.
1. These Rules may be cited as the Central Depositories (Regulation of Central Depositories) (Amendment) Rules, 2013.

Sub. Leg
2. Rule 11 of the Central Depositories (Regulation of Central Depositories) Rules (hereinafter referred to as “the principal Rules”) is amended by adding the following new paragraph immediately after paragraph 2—

(2A). A body corporate shall qualify to be appointed as a central depository agent under section 9 (2) (d) of the Act, if that body corporate meets the criteria set out in the Third Schedule to these Regulations.

3. The principal Rules are amended by adding the following new Schedule immediately after the Second Schedule—

THIRD SCHEDULE (r.11 (2A)).

CRITERIA FOR APPOINTMENT AS CENTRAL DEPOSITORY AGENT

1. A body corporate which intends to apply for an approval as a central depository agent shall submit to the central depository—

(a) an overview of the current or proposed business of the body corporate establishing the need for the appointment as a central depository agent;

(b) specific details on the functions of a central depository agent as stipulated under the Act, the Principal Rules and the rules of the central depository which it intends to carry out;

(c) evidence that the directors and the management of the body corporate are fit and proper persons;

(d) evidence of adequate systems, procedures, facilities and technical capacity that will enable the body corporate fulfill its obligations and operational requirements in accordance with the rules of the central depository as well as the terms and conditions of the agency agreement entered with the central depository;

(e) an assessment of all potential risks and proposed mitigation measures; and

(f) evidence of arrangements in place for the proper supervision of its compliance with the rules of the central depository.

2. (1) The central depository shall, in considering an application by a body corporate to operate as a central depository agent, have regard to whether the—

(a) proposed functions of the applicant fall within the approved functions of central depository agents under its rules;

(b) applicant can meet any requirements or conditions to be imposed, if any, prior to the appointment;

(c) applicant has capacity to and has committed to comply with all the continuing obligations imposed on central depository agents under the central depositories rules; and

(d) applicant demonstrates capacity and commitment to comply with Capital Markets (Conduct of Business) (Market Intermediaries) Regulations, 2011 as far as they are relevant to the activities of the central depository agent:

(2) A central depository shall consult the Authority when determining compliance under paragraph 3(1)(d).

3. A body corporate which qualifies for appointment as a central depository agent and is subsequently appointed as such, shall comply with the Central Depositories Act, the principal Rules and all rules of the central depository which it is appointed to act as an agent.

Made on the 18th June, 2013.

KUNG’U GATABAKI,
Chairman, Capital Markets Authority.

PAUL MUTHAURA,
Acting Chief Executive, Capital Markets Authority.

106-Public Procurement and Disposal (Amendment) Regulations, 2013

106-Public Procurement and Disposal (Amendment) Regulations, 2013

18th June, 2013
LEGAL NOTICE NO. 106

THE PUBLIC PROCUREMENT AND DISPOSAL ACT
(No. 3 of 2005)

IN EXERCISE of the powers conferred by Section 140 of the Public Procurement and Disposal Act, the Cabinet Secretary for the National Treasury makes the following Regulations-

THE PUBLIC PROCUREMENT AND DISPOSAL (AMENDMENT) REGULATIONS, 2013

Citation.
1. These Regulations may be cited as the Public Procurement and Disposal (Amendment) Regulations, 2013.

Sub. Leg.
2. Regulation 8(3) of the Public Procurement and Disposal Regulations, 2006, in these Regulations referred to as “the principal Regulations”, is amended by deleting subparagraph (a) and substituting therefor the following new subparagraph –

(a) maintain and update bi-annually, standing lists of registered tenderers required by the procuring entity through a pre-qualification process and submit the results to the Authority for consolidation, within fourteen days from date of notification.

3. Regulation 10 of the principal Regulations is amended in paragraph (2) by deleting paragraph (d) and substituting therefor the following new paragraph-

(d) approve the commencement of the procurement process upon the approval of the annual procurement plan by the accounting officer and where applicable the board of directors or a similar body and upon satisfaction that sufficient funds are available to meet the obligations of the entity arising from any contract as set out in the budgetary estimates or such documentation evidencing the availability of the funds, before making an award is provided;

4. Regulation 12 of the principal Regulations is amended–

(a) in paragraph (8) by deleting the word “fifty” and substituting therefor the word “one hundred”;

(b) adding the following new paragraph immediately after paragraph (10)-

(11) The observers shall be to-

(a) monitor the procurement process and prepare a report on whether the process has been carried out in accordance with Section 2 of the Act; and

(b) submit to the accounting officer and the Authority, within fourteen days from date of notification of the award, the report prepared under subparagraph (a).

5. The principal Regulations are amended by deleting regulation 16 and substituting therefor the following new regulation–

Evaluation, Negotiations, Inspection and Acceptance Committee.
16. (1) A procuring entity shall establish a tender processing committee in relation to each procurement process for the purposes of carrying out the evaluation of the tenders or proposals, negotiations or inspection and acceptance of goods, works or services.

(2) A committee established under paragraph (1) shall consist of a chairperson and at least three other members all appointed by the accounting officer or the head of the procuring entity upon recommendation by the procurement unit.

(3) A person shall be appointed as a member of the committee under paragraph (2) if he or she is a member of the tender committee of the procuring entity.

(4) The committee shall-

(a) adhere to the compliance and evaluation criteria set out in the tender documents in undertaking in carryout the technical and financial evaluation of the tenders or proposals received by the procuring entity;

(b) evaluate the tenders within a period of fifteen days after the opening of the tenders; and

(c) carry out the tender evaluation with all due diligence.

(5) Each member of the committee shall evaluate the tenders or proposals received by the procuring entity independently from the other members prior to sharing his or her analysis, questions and evaluation including his or her rating with the other members of the committee.

(6) A member of the committee shall not communicate with a tenderer who has submitted a tender or proposal that is under the consideration of the evaluation.

(7) A tender processing committee shall prepare an evaluation report on the analysis of the tenders receive, and final ratings assigned to each tender and submit the report to the tender committee.

(8) The report prepared under paragraph (7) shall include-

(a) the results of the preliminary evaluation, with reasons why any tender or proposal was rejected;

(b) the scores awarded by each evaluator for each tender or proposal;

(c) a summary of the relative strengths and weaknesses of each tender or proposal;

(d) the total score for each tender or proposal; and

(e) a recommendation to award the tender to the lowest evaluated tenderer or to the person who submitted the proposal with the highest total score.

6. The principal Regulations are amended by deleting regulation 17and substituting therefor the following new regulation–

Inspection and acceptance
17. The committee established under regulation 16 shall immediately after the delivery of the goods, works or services-

(a) inspect and where necessary, test the goods received;

(b) inspect and review the goods, works or services in order to ensure compliance with the terms and specifications of the contract;

(c) accept or reject, on behalf of the procuring entity, the delivered goods, works or services;

(d) ensure that the correct quantity of goods have been received;

(e) ensure that the goods, works or services meet the technical standards specified in the contract;

(f) ensure that the goods, works or services have been delivered or completed on time, or that
any delay has been noted;

(g) ensure that all required manuals or documentation in relation to the goods, works or services have been received; and

(h) ensure the issuance of interim or completion certificates or goods received notes, as appropriate and in accordance with the contract.

7. Regulation 20 of the principal regulations is amended—

(a) in paragraph (5) by inserting the words “tender committee,” immediately after the words “approved by the”;

(b) by adding the following new paragraph immediately after paragraph (5) -

(6) The approval of a plan under paragraph (5) by the tender committee shall be deemed to include the approval of all alternative procurement procedures under section 29(3) of the Act.

8. Regulation 24 of the principal Regulations is amended in paragraph (4) by deleting the word “fourteen” and substituting therefor the word “seven”.

9. Regulation 31 of the principal Regulations is amended by adding the following paragraph immediately after paragraph (4)-

(e) the cumulative value of all contract variations do not result in an increment of the total contract price by more than twenty five percent of the original contract sum.

10. Regulation 36 of the principal Regulations is amended by deleting the word “thirty” and substituting therefor the words “twenty one”.

Fee for tender documents.
11. The principal Regulations are amended by deleting regulation 39 and substituting therefor the following new regulation–

(1) A procuring entity may, pursuant to section 56(2) of the Act, charge a fee not exceeding one thousand shillings for hard copies of tender documents.

(2) In determining the fee payable under paragraph (1), a procuring entity shall only have regard to the costs related to printing, copying, and distributing or of converting the documents into electronic form. (3) A procuring entity shall not charge a fee under paragraph (1) where the tender documents are –

(a) obtained electronically;

(b) invitations for expression of interest; or

(c) invitations for pre-qualification.

(4) Where a procuring entity charges a fee for the delivery of tender documents, the procuring entity shall permit potential tenderers to inspect the documents, prior to paying the fee for the document.

12. The principal Regulations are amended by deleting regulation 40 and substituting therefor the following new regulation–

Time for preparing national tenders.
40. The minimum period for the preparation of national open tenders for the purposes of section 55 (1) of the Act shall be fourteen days.

13. Regulation 41 of the principal Regulations is amended by deleting paragraph (3) and substituting therefor the following new paragraph –

(3) The tender security under section 57 of the Act shall be provided in the following form-

(a) cash;

(b) a bank guarantee;

(c) such insurance company guarantee as may be approved by the Authority;

(d) a letter of credit; or

(e) guarantee by a deposit taking microfinance institution, Sacco society, the Youth Enterprise Development Fund or the Women Enterprise Fund.

14. Regulation 46 of the principal Regulations is amended by -

(a) renumbering the existing provision as paragraph (1);

(b) deleting the word “thirty” appearing in the new paragraph (1) and substituting therefore the word “fifteen”;

(c) inserting the following new paragraph immediately after the new paragraph (1) –

(2) Where a tender is complex or has attracted a high number of tenderers, the accounting officer or head of the procuring entity may extend the period for tender evaluation under paragraph (1) for a further period within the tender validity period not exceeding thirty more days from date of expiry of initial period.

15. Regulation 54 of the principal Regulations is amended in paragraph (5) by deleting the word “fourteen” and substituting therefor the word “seven”.

16. Regulation 55 of the principal Regulations is amended –

(a) in paragraph (2) by deleting the word “fourteen” and substituting therefor the word “seven”;

(b) by adding the following new paragraph immediately after paragraph (2) -

17. Regulation 64 of the principal Regulations is amended in paragraph (1) by adding the following new paragraph immediately after paragraph (c) -

(d) where competitive negotiations are critical for achieving value for money in the procurement of specialized goods, works or services.

18. Regulation 65 of the principal Regulations is amended by –

(a) renumbering the existing provision as paragraph (1); and

(b) adding the following new paragraph immediately after paragraph (1) –

(2) The period of tender award shall not exceed thirty days from the date of tender opening.

19. Regulation 66 of the principal Regulations is amended by deleting paragraph (2) and substituting therefor the following new paragraph –

(2) A procuring entity shall immediately after tender award notify an unsuccessful tenderer in writing and shall in the same letter provide reasons as to why the tender, proposal or application to be pre-qualified was unsuccessful.

20. Regulation 73 of the principal Regulations is amended in paragraph (2) by –

(a) deleting the word “fourteen” appearing in subparagraph (c) and substituting therefor the word “seven”;

(b) deleting the word “three” appearing in paragraph (d) and substituting therefor the word “fifteen”;

(c) inserting the word “non-refundable” immediately after the words “by the” appearing in paragraph (e).

21. Regulation 74 of the principal Regulations is amended by deleting paragraph (3) and substituting therefore the following new paragraph –

(3) Upon being served with a notification of a request, the procuring entity shall-

(a) notify the Secretary of the names and contact details of all parties to the review; and

(b) within five days or such lesser period as may be specified by the Secretary in a particular case, submit to the Secretary a written memorandum of response to the reasons for the request together with such documents as the Secretary may specify.

22. The principal Regulations are amended by inserting the following new regulations immediately after regulation 94-

Reporting on public contract awards.
95. For purposes of section 46(1), each procuring entity shall submit to the Authority, on a quarterly basis, information of all public contract awards as directed by the Authority.

23. The principal Regulations are amended by deleting the First Schedule and substituting therefor the following new Schedule.

FIRST SCHEDULE

THRESHOLD MATRIX

THRESHOLDS MATRIX FOR CLASS A PROCURING ENTITIES

Procurement Method

Maximum or minimum level of expenditure allowed for the use of a particular procurement method

 

 

Segregation of duties for different officers and committees in the procurement cycle under section 26(3)(c) of the Act

 

 

 

 

Goods

Works

Services

Person responsible for procurement initiation

Body responsible for the awarding the contract

Person responsible for signing the Contract

Verification of receipt of goods services or works

International Open tender (s 71 of the Act)

There is no maximum or minimum level of expenditure under this method

There is no maximum or minimum level of expenditure under this method

There is no maximum or minimum level of expenditure under this method

The Accounting Officer

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

National Open tender (s. 54(2) of the Act)

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

 

When using this method the minimum expenditure that requires advertising is KES. 6,000,000/- below which may use alternative advertising methods

When using this method the minimum expenditure that requires advertising is KES. 6,000,000/- below which may use alternative advertising methods

When using this method the minimum expenditure that requires advertising is KES. 3,000,000/- below which may use alternative advertising methods

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

Restricted tender Under s 73(2) of the Act

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

Request for proposals (s 76(1) of the Act)

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

Head of User Department

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

Direct Procurement under s 74(2) and (3) of the Act

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

Head of User Department

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

Request for quotations (s 88 of the Act)

Maximum level of expenditure under this method is KES 2,000,000

Maximum level of expenditure under this method is KES 4,000,000

Maximum level of expenditure under this method is KES 2,000,000

Head of User Department

Tender Committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

 

Minimum level of expenditure under this method is KES. 30,000 per procurement per item

Minimum level of expenditure under this method is KES. 50,000 per procurement per item

Minimum level of expenditure under this method is KES. 30,000 per procurement per item

Head of User Department

Tender Committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

Low value procurement(s 90 of the Act)

Minimum level of expenditure under this method is KES. 30,000 per procurement per item

Minimum level of expenditure under this method is KES. 50,000 per procurement per item

Minimum level of expenditure under this method is KES. 30,000 per procurement per item

Head of the User Department

User Department

The Head of the Procurement Unit

Stores officer

 

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this method

Head of User Department

User Department

The Head of the Procurement Unit

Stores officer

International Open tender (s 71 of the Act)

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this method

The Accounting Officer

Tender committee

The Accounting Officer

Evaluation, negotiation, inspection and acceptance committee

National Open tender (s 54(2) of the Act)

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Head of User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

 

When using this method the minimum expenditure that requires advertising is KES 5,000,000/- below which may use alternative advertising methods

When using this method the minimum expenditure that requires advertising is KES 5,000,000/- below which may use alternative advertising methods

When using this method the minimum expenditure that requires advertising is KES 5,000,000/- below which may use alternative advertising methods

Head of User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

Restricted tender Under s. 73 (2) of the Act

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

 

The minimum level of expenditure is KES 1,500,000 blow this threshold use request for quotations

The minimum level of expenditure is KES 3,000,000 blow this threshold use request for quotations

The minimum level of expenditure is KES 1,500,000 blow this threshold use request for quotations

Head of the User Department

Tender Committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

Request for proposals s 76(1) of the Act

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

Request for quotations (s 88 of the Act)

Maximum level of expenditure under this method is KES 1,500,000

Maximum level of expenditure under this method is KES 3,000,000

Maximum level of expenditure under this method is KES 1,500,000

Head of the User Department

Tender committee or Procurement committee where expenditure is below KES 500,000

The Accounting Officer or Head of the User Department where expenditure is below KES 500,000

Evaluation, negotiations, inspection and acceptance committee

Direct procurement Under s. 74 (2) and (3) of the Act

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

Head of the User Department

Tender committee or Procurement committee where expenditure is below KES 500,000

The Accounting Officer or Head of the User Department where expenditure is below KES 500,000

Evaluation, negotiations, inspection and acceptance committee

Low value procurement(s) 90 of the Act)

Maximum level of expenditure under this method is KES10,000/- per procurement per item

Maximum level of expenditure under this method is KES10,000/- per procurement per item

Maximum level of expenditure under this method is KES10,000 – per procurement per item

Head of the User Department

User department

The Head of the Procurement Unit

Stores officer

 

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this

There is no minimum expenditure for the use of this

Head of the User Department

User Department

The Head of the Procurement Unit

Stores officer


THRESHOLDS MATRIX FOR CLASS C PROCURING ENTITIES

 

 

Procurement Method

Maximum or minimum level of expenditure allowed for the use of a particular procurement method

Segregation of duties for different  officers and committees in the procurement cycle under section 26(3)(c) of the Act

 

Goods

Works

Services

Person responsible for procurement initiation

Body responsible for the awarding the contract

Person responsible for signing the Contract

Verification of receipt of goods, services or works

Intentional Open tender (s 71 of the Act)

There is no maximum or minimum level of expenditure under this method

There is no maximum or minimum level of expenditure under this method

There is no maximum or minimum level of expenditure under this method

The Accounting Officer

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

National Open tender (S54(2) of the Act)

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular  procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular  procurement

Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular  procurement

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

Restricted tender Under 73 (2) of the Act

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

 

The minimum level of expenditure is KES 500,000. Below this threshold request for quotations

The minimum level of expenditure is KES 500,000. Below this threshold request for quotations

The minimum level of expenditure is KES 500,000. Below this threshold request for quotations

Head of the User Department

 

 

Evaluation, negotiations, inspection and acceptance committee

Request for proposals (s. 76(1) of the Act)

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

Request for quotations (s 88 of the Act)

Maximum level of expenditure under this method is KES 500,000

Maximum level of expenditure under this method is KES 500,000

Maximum level of expenditure under this method is KES 500,000

Head of the User Department

Tender committee

The Accounting Officer

Evaluation, negotiations, inspection and acceptance committee

Direct procurement Under 74(2) and (3) of the Act

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

No minimum or maximum expenditure under this method provided the conditions under this section are met

The Accounting Offer Head of the User Department initiates procurement whose expenditure is below KES 200,000

Tender committee Procurement committee awards for procurement whose expenditure is below KES. 200,000

The Accounting Officer or Head of the User Department where expenditure is below KES. 200,000

Evaluation, negotiations, inspection and acceptance committee

Low value procurement (s 90 of the Act)

Maximum level of expenditure under this method is KES 5,000 per procurement per item

Maximum level of expenditure under this method is KES 5,000 per procurement per item

Maximum level of expenditure under this method is KES 5,000 per procurement per item

Head of User Department

User Department

The Head of the Procurement Unit

Stores officer

 

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this method

There is no minimum expenditure for the use of this method

Head of User Department

User Department

The Head of the Procurement Unit

stores officer

6. The Fourth Schedule of the principal Regulations is amended by deleting Part II and substituting therefor the following new Part -

Part II

FEES FOR REVIEWS

1. Administrative fee KES 5,000

2. Upon filing a request for review, the fees payable shall be as follows-

 

 

Amount of Tender

Fees

1. Tenders of Ascertainable Value

 

(a) Does not exceed KES. 2,000,000

1% subject to a minimum of KES. 20,000/-

(b) Exceeds KES. 2,000,000/- but not over KES. 50,000,000/-

The fees for KES. 2000,000 plus an

additional fee of 0.25% on the amount above KES. 2,000,000

(c) Exceeds KES. 50,000,000/-

The fees for tender sum of KES. 50,000,000

plus an additional fee of 0.025% on the

amount above KES.50,000,000/- subject to a maximum fee of KES. 200,000/-

2. Pre-qualificationand other

“Unquantified Tenders

KES. 40,000

(f) Any other Tenders

Subject to a minimum of KES. 20,000/- and a maximum of KES. 40,000/-

3. Upon request of an adjournment to

a party by the Board

KES.10, 000/-

4. filing preliminary objection

KES.5, 000/-

5. Fee to accompany the review of

Director General’s order (s.106 (3))

KES.40, 000/-

6. Filing fees on each request for a

review on debarment order (s.117(3))

KES.40, 000/-

7. The Secretary may demand additional fee if the fee paid at the time of filing is less than that ascertained to be chargeable.

Made on the 18th June, 2013

HENRY ROTICH,

Cabinet Secretary for the National Treaury.

 

105-Capital Markets Conduct of Business (Market Intermediaries)(Amendment) Regulations, 2013

105-Capital Markets Conduct of Business (Market Intermediaries)(Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 105

THE CAPITAL MARKETS ACT
(Cap. 485A)

IN EXERCISE of the powers conferred by section 12 of the Capital Markets Act, the Cabinet Secretary to the National Treasury, makes the following Regulations:—

CAPITAL MARKETS (CONDUCT OF BUSINESS) (MARKET INTERMEDIARIES) (AMENDMENT) REGULATIONS, 2013

Citation.
1. This Regulations may be cited as the Capital Markets (Conduct of Business) (Market Intermediaries) (Amendment) Regulations, 2013.

Sub. Leg.
2. Regulation 27 of the Capital Markets (Conduct of Business) (Market Intermediaries) Regulations (hereinafter referred to as “the principal Regulations” is amended in paragraph 4-

(a) in subparagraph (c), by inserting the word “internal” immediately after the word “new”; and

(b) by deleting subparagraph (e)

3. Regulation 30 of the principal Regulations is amended in paragraph (1) by deleting subparagraph (b) and inserting therefor the following new subparagraph—

(b) the amount of clients funds standing to the credit of each client can be ascertained, at all times, by the Authority or any other party;

4. Regulation 39 of the principal Regulations is amended by-

(a) deleting the word “and” appearing immediately after subparagraph (b); and

(b) inserting the following new subparagraphs immediately after subparagraph (b)

(c) a statement of changes in owners’ equity;

(d) a statement of cash flows;

(e) a description of the accounting policies which the market intermediary has applied and adopted while preparing the financial statements; and

(f) notes on financial statements explaining the various items that appear in the financial statements under this Regulation.

5. Regulation 42 of the principal Regulations is amended by—

(a) deleting subparagraph (3) and substituting therefor the following new paragraph—

“(3) A market intermediary shall not appoint or remove an auditor except with prior approval of the Authority at least one month prior to such appointment or removal.”

(b) deleting subparagraph (4) and substituting therefor the following new subparagraph-

“(4) A person appointed as an auditor under this Regulation shall serve for a maximum period of four consecutive years.”

6. The principal Regulations are amended by deleting regulation 46.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

104-Capital Markets (Demutualization of the Nairobi Securities Exchange)(Amendment) Regulations, 2013

104-Capital Markets (Demutualization of the Nairobi Securities Exchange)(Amendment) Regulations, 2013

18th June, 2013

LEGAL NOTICE NO. 104

THE CAPITAL MARKETS ACT
(Cap. 485A)

IN EXERCISE of the powers conferred by section 12 of the Capital Markets Act, the Cabinet Secretary to the National Treasury, makes the following Regulations:—

THE CAPITAL MARKETS (DEMUTUALIZATION OF THE NAIROBI SECURITIES EXCHANGE) (AMENDMENT) REGULATIONS, 2013

1. These Regulations may be cited as the Capital Markets (Demutualization of the Nairobi Securities Exchange) (Amendment) Regulations, 2013.

Citation.
2. Regulation4 of the Capital Markets (Demutualization of the Nairobi Securities Exchange) Regulations, 2012 is amended in paragraph (2)(d) by deleting—

(a) the words “the Government of Kenya and”; and

(b) the word “twenty” and substituting therefor the word “ten”.

Made on the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

103-Customs and Excise (Remission of Excise Duty) Regulations, 2013

103-Customs and Excise (Remission of Excise Duty) Regulations, 2013

18th June, 2013

LEGAL NOTICE No. 103

THE CUSTOMS AND EXCISE ACT
(Cap. 472)

IN EXERCISE of the powers conferred by section 139 of the Customs and Excise Act, the Cabinet Secretary for the National Treasury makes the following Regulations:-

THE CUSTOMS AND EXCISE (REMISSION OF EXCISE DUTY) REGULATIONS, 2013

1. These Regulations may be cited as the Customs and Excise (Remission of Excise Duty) Regulations, 2013 and shall come into effect on the 1st October, 2013.

2. The Cabinet Secretary may, on the application by a manufacturer, grant remission of excise duty at fifty per centum with respect to beer made from sorghum, millet or cassava grown in Kenya.

3. A manufacturer applying for remission under paragraph 2 shall-

(a) be tax compliant;

(b) have a valid excise licence to produce beer;

(c) have been producing beer in the last three years preceding the application;

(d) have a minimum monthly yield of excise duty of at least ten million shillings;

(e) ensure that the beer has at least seventy five per centum content of sorghum, millet or cassava excluding sugar;

(f) pack the beer in a pressurized container of at least thirty litres or such other container and quantity as the Cabinet Secretary may approve;

(g) sell the beer at not more than one hundred and sixty shillings per litre; and

(h) comply with such other conditions as the Commissioner may impose.

4. Subject to all other provisions relating to returns under the Act a manufacturer granted remission under these Regulations shall submit to the Commissioner, a detailed return of quantities of beer manufactured and sold on a monthly basis or at such interval as the Commissioner may require.

5. A manufacturer who is granted a remission under paragraph 2 based on false or misleading information shall, upon demand by the Commissioner, refund the excise duty remitted under these Regulations.

6. Legal Notice No. 8 of 2005 is revoked.

Made on the l8th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

102-Provisional Collection of Taxes and Duties Order, 2013

102-Provisional Collection of Taxes and Duties Order, 2013

18th June, 2013

LEGAL NOTICE NO. 102

THE PROVISIONAL COLLECTION OF TAXES AND DUTIES ACT
(Cap. 415)

THE PROVISIONAL COLLECTION OF TAXES AND DUTIES ORDER, 2013

WHEREAS a Bill entitled “An Act of Parliament to amend the law relating to various taxes and duties and for matters incidental thereto”, the short title of which is “The Finance Bill, 2013”, has been published in the Gazette on the 18th June, 2013:

NOW THEREFORE, in exercise of the powers conferred by section 2 of the Provisional Collection of Taxes and Duties Act, the Cabinet Secretary for National Treasury orders that all the provisions of the Bill relating to taxes or duties shall have effect as though the Bill were passed into law.

This Order shall come into effect on the 18th June, 2013.

Dated the 18th June, 2013.

HENRY ROTICH,
Cabinet Secretary for the National Treasury.

101-National Hospital Insurance Fund Approval of Rebates, 2013

101-National Hospital Insurance Fund Approval of Rebates, 2013

14th June, 2013

LEGAL NOTICE NO. 101

THE NATIONAL HOSPITAL INSURANCE FUND ACT, 1998
(No.9 of 1998)

APPROVAL OF REBATES

IN EXERCISE of the powers conferred by section 27 of the National Hospital Insurance Fund Act, 1998, the National Hospital lnsurance Fund Board of Management, in consultation with the Cabinet Secretary for Health has approved the rebates for the following hospital for purposes of the Act.

 

 

Name of Hospital

Address

Town/District

           

Rebate KSh.

 

Contract

 

Navakholo Sub-District Hospital

940-501 00

Kakamega

1,300

A

St. Joseph Shelter of Hope Health

Centre

286-80300

Voi

1,400

B

The Hope Medical Centre- Awasi

117

Awasi

1,300

B

Kitengela Medical Services-

Kajiado

352-00242

Kitengela

1,400

 

B

 

St. Luke's Orthopaedics and

Trauma Hospital

3705-3100

Eldoret

                   

1,400

 

C

 

Masaba Hospital

269

Maseno

1,600

B

Nzoia Medical Centre

304-532

Bungoma

1,300

B

Pablo Hortsmann Paediatric

Health Centre

249

Lamu

1,400

B

Watamu Nursing Home

322

Watamu

1,200

C

SIMEON OLE KIRGOTTY,
chief Executive Officer,
National Hospital Insurance Fund.

J.A. ALUOCH
Chairman,
National Hospital Insurance Fund.

 

 

100-National Hospital Insurance Declaration of Hospitals 2, 2013

100-National Hospital Insurance Declaration of Hospitals 2, 2013

14th June, 2013

LEGAL NOTICE No. 100

THE NATIONAL HOSPITAL INSURANCE FUND ACT, 1998
(No.9 of 1998)

DECLARATION OF HOSPITALS

IN EXERCISE of the powers conferred by Section 30 (1) of the National Hospital Insurance Fund Act. 1998, the National Hospital Insurance Fund Board of Management, in consultation with the Cabinet Secretary for Health and the chairman of the Medical Practitioners and Dentists Board declares the following to be hospitals for purposes of the Act:

Declared Hospitals

Likuyani Sub-District Hospital
Port Florence Community Hospital-Homabay
Entasopia Health Centre
Kimana Health Centre
Immurtot Health Centre
Ongata Rongai Health Centre alias Saitoti
Kongoni Health Centre
Entara Health Centre
Lunga Lunga Health Centre
Ladopharma Medical Centre
Loco Health Centre
Karen Health Centre
Matibabu Foundation Hospital
Mghange Nyika Health Centre
Bikeke Health Centre
St. Luke's Orthopedic Hospital
Kacheliba District Hospital
Chepareria Sub-district Hospital
Sigor Sub-District Hospital
Kabichbich Health Centre
Serewo Health Centre
Keringet Health Centre
Lomut Dispensary

SIMEON OLE KIRGOTTY,
Chief Executive Officer,
National Hospital Insurance Fund.

J. A. ALUOCH,
Chairman,
National Hospital Insurance Fund.

99-National Hospital Insurance Declaration of Hospitals, 2013

99-National Hospital Insurance Declaration of Hospitals, 2013

14th June, 2013

LEGAL NOTICE No. 99

THE NATIONAL HOSPITAL INSURANCE FUND ACT, 1998
(No.9 of 1998)

DECLARATION OF HOSPITALS

IN EXERCISE of the powers conferred by Section 30 (1) of the National Hospital Insurance Fund Act, 1998, the National Hospital Insurance Fund Board of Management, in consultation with the Cabinet Secretary for Health and the chairman of the Medical Practitioners and Dentists Board declares the following to be hospitals for purposes of the Act:

Declared Hospitals

Navakholo Sub-District Hospital
St. Joseph Shelter of Hope Health Centre
The Hope Medical Centre, Awasi
Kitengela Medical Services, Kajiado
St. Luke's Orthopaedics and Trauma Hospital
Masaba Hospital
Nzoia Medical Centre
Pablo Hortsmann Paediatric Health Centre
Watamu Nursing Home

SIMEON OLE KIRGOTTY,
Chief Executive Officer,
National Hospital Insurance Fund.

J. A. ALUOCH,
Chairman,
National Hospital Insurance Fund.

98-Cattle Cleansing Amendment, 2013

98-Cattle Cleansing Amendment, 2013

14th June, 2013

LEGAL NOTICES No. 98

THE CATTLE CLEANSING ACT
(Cap 358)

AMENDMENT

IN EXERClSE of the powers conferred by section 2 of the Cattle Cleansing Act, the Director of Veterinary amends the Prescription of Effective Tick Destroying Agents contained in Legal Notice No. 60 of 2009 by deleting the word "ASSIATIX" appearing in paragraph 2 of the Schedule and substituting therefore the word "BIMATIX".

Dated the 3rd June, 2013.

P. M. ITHONDEKA,
Director of Veterinary Services.

97-Banking Exemption Barclays and Absa Group Limited, 2013

97-Banking Exemption Barclays and Absa Group Limited, 2013

14th June, 2013

LEGAL NOTICE No. 97

THE BANKING
(Cap.488)

EXEMPTION

IN EXERCISE of the powers conferred by section 53 of the Banking Act, 2013, the Cabinet Secretary for the National Treasury exempts Barclays Africa Limited, Barclays Africa Group Holdings Limited and Absa Group Limited from the provisions of section 13 (1) of the Act, for a period of five years with effect from the 1st April, 2013, in connection with the acquisition and direct or indirect holding or ordinary shares in Barclays Bank of Kenya Limited.

Dated the 24th May, 2013.

H. K. ROTICH,
Cabinet Secretary for the National Treasury.

96-Banking Gulf Bank Exemption, 2013

96-Banking Gulf Bank Exemption, 2013

14th June, 2013

LEGAL NOTICE No. 96

THE BANKING ACT
(Cap.488)

EXEMPTION

IN EXERCISE of the powers conferred by section 53 of the Banking Act, 2013, the Cabinet Secretary for the National Treasury exempts Gulf Africa Bank Limited from the provisions of section 12 (a) and 12 (c) for a period of five (5) years with effect from the 1st December, 2012.

Dated the 29th May, 2013.

H. K. ROTICH,
Cabinet Secretary for the National Treasury.

95-Technical and Vocational Education Training Commenencement, 2013

95-Technical and Vocational Education Training Commenencement, 2013

14th June, 2013

LEGAL NOTICE No. 95

THE TECHNICAL AND VOCATIONAL EDUCATION AND TRAINING ACT
(No. 29 of 2013)

COMMENCEMENT

IN EXERCISE of the powers conferred by section 1 of the Technical and Vocational Education and Training Act, 2013, the Cabinet Secretary for Education, Science and Technology appoints the 24th June, 2013, as the date on which all the provision of the Act other than Parts VIII and IX shall come into operation.

Dated the 29th May, 2013.

J. T. KAIMENYI,
Cabinet Secretary for Education, Science and Technology.

94-Science, Technology and Innovation Commencement, 2013

94-Science, Technology and Innovation Commencement, 2013

14th June, 2013

LEGAL NOTICE No. 94

THE SCIENCE, TECHNOLOGY AND INNOVATION ACT
(No.28 of 2013)

COMMENCEMENT

IN EXERCISE of the powers conferred by section I of the Science, Technology and Innovation Act, 2013, the Cabinet Secretary for Education, Science and Technology appoints the 24th June, 2013, as the date on which all the provision of the Act other than parts VI and VII shall come into operation.

Dated The 27th May, 2013.

J. T. KAIMENYI,
Cabinet Secretary for Education, Science and Technology.

93-Traffic Act Amendment, 2013

93-Traffic Act Amendment, 2013

14th June, 2013

LEGAL NOTICE NO. 93

THE TRAFFIC ACT
(Cap.403)

IN EXERCISE of the powers conferred by section 119 (1) of the traffic Act, the cabinet Secretary for Transport and Infrastructure makes the following Rules:-

THE TRAFFIC (AMENDMENT) RULES, 2013

1. These rules may be cited as the Traffic (Amendment) Rules, 2013.

1. Part I of the Twelfth Schedule to the Traffic Rules (in these Rules referred to as "the principal Rules") is amended-

(a) in paragraph 1 by inserting the following definitions in their proper alphabetical sequence -

"conventional tyre" means a tyre with a section width measuring between 280 mm and 315 mm;

"dead axle" means an axle which is not fitted and certified by the vehicle manufacturer and includes a dummy axle".

"dead man's switch" means a switch that is spring loaded and held in by the driver while the axle is in the lifted position which returns to the pavement arid takes up normal loading and when the driver’s hand is released off the switch;

"liftable axles" means a non-powered axle in an axle unit, which can be lifted independently, but which, by virtue of an automatic mechanism or sensor, is lowered to the road pavement when the adjacent axle in the unit is loaded beyond an automatically predetermined load limit;

"super single tyre" means a tyre with a section width equal to or greater than 385 mm;

(b) in paragraph 2 -

(i) by deleting subparagraph (1) and substituting therefor the following new sub-paragraph -

(1) The maximum weight which may be transmitted to the road in the case of a vehicle fitted with pneumatic tyres, whether laden or unladen, shall not exceed-

"(a) by way of any single steering axle whether controlled by drawbar or driver operated steering mechanism ……………. 8,000 kg.

(b) by way of any single axle having four or more wheels fitted with conventional tyres….......10,500 kg.

(c) by way of any single axle having two wheels fitted with super single tyres ………8,500 kg.

(d) by way of any driver operated double steering axles having two wheels fitted with conventional tyres …………………12,000 kg.

(e) by way of any drawbar controlled double steering axles having four wheels fitted with conventional tyres ……………………………16,000 kg.

(f) by way of any tandem axle group each having two wheels fitted with Super single tyres ………………………….16,000 kg.

(g) by way of any tandem axle group each having four wheels fitted with conventional tyres …………………………..18,000 kg.

(h) by way of any triple axle group each having two wheels fitted with Super single tyres ………………..22,50b kg.

(i) by way of a triple axle group each having four wheels fitted with conventional tyres ……………………24,000 kg.

Provided that in the case of any axle or axle group (excluding a single steering axle) where one or more of the axles is having only two wheels fitted with conventional tyres, the appropriate maximum allowable load figure given in this subparagraph shall be reduced by twenty-five per cent.

(ii) by deleting subparagraph (2) and substituting therefor the following new subparagraph-

"(a) vehicle with two axles .....................18,000 kg.

(b) vehicle with three axles ……………. 26,000 kg.

(c) vehicle and semi-trailer with a total of three axles ……………… 28,000 kg.

(d) vehicle with four axles ………………………. 30,000 kg.

(e) vehicle and semi-trailer with a total of four axles …………………. 36,000 kg.

(f) vehicle and draw bar trailer with a total of 4 axles …………………... 36,000 kg.

(g) vehicle and semi-trailer with a total of five axles ………………… 44,000 kg.

(h) vehicle and draw bar trailer with a total of five axles …………….. 44,000 kg.

(i) vehicle and semi-trailer with a total of six axles ………………… 50,000 kg.

(j) vehicle and draw bar trailer with a total of six axles …………….. 52,000 kg.

(iii) by adding the following new subparagraphs immediately after subparagraph (9)-

"(10). A tolerance of 5% shall be allowed on the permissible maximum axle loads on an axle or axle group. No tolerance shall be allowed on the maximum permissible gross vehicle weights.

(11) A vehicle with liftable axles shall be fitted with the manufacture's certified dead man's
switch and must have an automatic drop-down mechanism when loaded.

(12) A person shall not operate a vehicle on a public road with dummy or dead axle, defective suspension or dead man's switch or other mechanisms in the vehicle that affects the weight transmitted to the road pavement.

(13) No axle in the tandem or triple axle group shall exceed the permissible maximum single axle load limits.

(14) The conventional tyres and the respective inflation pressure that match the recommended axle load limits shall be the following-

(a) A 1100x20, which is an 11-inch (280 mm) wide cross-ply tyre, fitted to a 20-inch diameter wheel rim and inflated at a pressure of 750 kPa (7.5 bars); or,

(b) A 12R 22.5, which is a 12-inch (305 mm) wide radial-ply on a 22-5-inch diameter wheel rim and inflated at a pressure of 800 kPa (8.0 bars); or,

(c) A 315/80R22.5, wide tyre inflated at a pressure of 800k Pa or 8.0 bars."

(c) in paragraph 3 (b)-

(i) deleting the expression"4.2" appearing in sub paragraph (b) and substituting therefor the expression"4.3".

(ii) deleting the expression "11" appearing in sub paragraph (e) (i) and substituting therefor the expression "12.5".

3. The principle Rules are amended by deleting Part II of the Twelfth Schedule and substituting therefor the following new part-

PART II - VEHICLE AXLE CONFIGURATION

Please click here to download Legal Notice

 

92-Revision of Laws (Rectification) Order, 2013

92-Revision of Laws (Rectification) Order, 2013

PLEASE CLICK HERE TO DOWNLOAD LEGAL NOTICE

90-Competition Act Sports Stadia Management and Cocacola East and West Africa, 2013

90-Competition Act Sports Stadia Management and Cocacola East and West Africa, 2013

10th May, 2013

LEGAL NOTICE No. 90

THE COMPETITION ACT
(No. 12 of 2010)

SPORTS STADIA MANAGEMENT BOARD AND COCACOLA, EAST AND WEST AFRICA LIMITED,

IN EXERCISE of the powers conferred by section 30 of the Competition Act, the competition Authority grants an exemption to the proposed one year variation to the naming rights agreement to be entered between Sports Stadia Management Board and the Coca-Cola East & West Africa Limited. The Authority has granted the exemption due to the following reasons-

(a) Sports Stadia Management Board will access funds for the development of sports services in Kenya; and

(b) the market affected is negligible.

Dated the 22nd February, 2013.

WANG'OMBE KARIUKI,
Director-General.

89-Privileges and Immunities (Comesa Monetary Institute) Order, 2013

89-Privileges and Immunities (Comesa Monetary Institute) Order, 2013

10th May, 2013

LEGAL NOTICE NO. 89

THE PRIVILEGES AND IMMUNITIES ACT
(Cap. 179)

IN EXERCISE of the powers conferred by section 9 of the Privileges and Immunities Act, the Minister for Foreign Affairs makes the following Order:-

THE PRIVILEGES AND IMMUNITIES (COMESA MONETARY INSTITUTE) ORDER, 2013

1. These Order may be cited as the Privileges and Immunities (COMESA Monetary Institute) Order, 2013.

2. The COMESA Monetary Institute, in this Order referred to as "Institute", being a monetary institute established by a Protocol subscribed to by the Government of Kenya and other governments, is declared to be an organization to which section 9 of the Act shall apply.

3. The Institute shall –

(a) be a body corporate; and

(b) have the privileges and immunities specified in paragraphs 2 to 6 of Part I of the Fourth Schedule to the Act.

4. The Director and Internationally recruited staff members of the Institute shall, while residing in Kenya and performing duties in the service of the Institute, have the privileges specified in paragraphs 1 to 7 of Part III of the Fourth Schedule to the Act:

Provided that the provisions of this paragraph shall not apply to citizens of Kenya or to any person who is ordinarily resident in Kenya except solely for the purpose of being an employee of, or working exclusively for, the Institute.

Dated the 5th April, 2013.

SAM ONGERI
Minister for Foreign Affairs.

88-Privileges and Immunities Africa Capacity Building Foundation Order, 2013

88-Privileges and Immunities Africa Capacity Building Foundation Order, 2013

10th May, 2013

LEGAL NOTICE No. 88

THE PRIVILEGES AND IMMUNITIES ACT
(Cap. 179)

IN EXERCISE of the powers conferred by section 9 of the Privileges and Immunities Act, the Minister for Foreign Affairs makes the following Order:-

THE PRIVILEGES AND IMMUNITIES (AFRICA CAPACITY BUILDING FOUNDATION) ORDER, 2013

1. These Order may be cited as the privileges and Immunities (Africa Capacity Building Foundation) Order, 2013.

2. The Africa Capacity Building Foundation, in this Order referred to as "Foundation", being a capacity building foundation established by a Protocol subscribed to by the Government of Kenya and other governments, is declared to be an organization to which section 9 of the Act shall apply.

3. The Foundation shall-

(a) be a body corporate; and

(b) have the privileges and immunities specified in paragraphs 2, 3 and 4 of Part I of the Fourth Schedule to the Act.

4. The Regional Director and Internationally recruited staff members of the Foundation shall, while residing in Kenya and performing duties in the service of the Foundation, have the privileges specified in paragraphs 2, 3, 4, 6 and 7 of Part III of the Fourth Schedule to the Act:

Provided that the provisions of this paragraph shall not apply to citizens of Kenya or to any person who is ordinarily resident in Kenya except solely for the purpose of being an employee of, or working exclusively for, the Foundation.

Dated the 5th April, 2013.

SAM K. ONGERI,
Minister for Foreign Affairs

87-Co-operatives Societies Amendment Rules, 2013

87-Co-operatives Societies Amendment Rules, 2013

10th May, 2013

LEGAL NOTICE No. 87

THE CO-OPERATIVE SOCIETIES ACT
(Cap 490)

IN EXERCISE of the powers conferred by section 9l of the Co-operative Societies Act, the Minister for Co-operative Development and Marketing makes the following Rules:-

THE CO-OPERATIVE SOCIETIES (AMENDMENT) RULES, 2013

Citation.
1. These Rules may be cited as-the Co-operative Societies (Amendment) Rules, 201 3.

Amendment of r.2 of L.N. 123/2004
2. The Co-operative Societies Rules, 2004, in these Rules referred to as "the principal Rules", are amended in rule 2 by inserting the following new definition in its proper alphabetical sequence-

"NACO" means any registered National Co-operative Organization and shall include the Co-operative Holdings, Cooperative Insurance Society, Kenya Union of Savings and Credit Cooperative Organization, National Co-operative Housing Union, Kenya Rural Savings and Credit Co-operative Societies Union, Kenya Cooperative Coffee Exporters, New Kenya Co-operative Creameries, Kenya Planters Co-operative Union and Co-operative Development Information Centre".

Insertion of r.31A into L.N. 123/2004
3. The principal Rules are amended by inserting the following new rule immediately after rule 3l-

Deductions to the apex
31A. (1). There shall be an annual subscription fee payable to the apex society as follows-

(a) Twenty five shillings from every registered primary society on each of its active individual members in the register;

(b) A 0.05 percentage of the gross income or annual turnover of every Co-operative Union provided that the remittance shall not exceed one million shillings; and

(c) A 0.05 percentage of the gross income or annual turnover of each NACO.

Dated the 11th March, 2013.

JOSEPH W. N. NYAGAH
Minister for Co-operative Development and Marketing.

86-Kenya Roads (Kenya National Highways Authority) Regulations, 2013

86-Kenya Roads (Kenya National Highways Authority) Regulations, 2013

10th May, 2013

LEGAL NOTICE No. 86

THE KENYA ROADS ACT
(No 2 of 2007)

IN EXERCISE of the powers conferred by section 22 (2) (d) and 46 of the Kenya Roads Act, the Kenya National Highways Authority, with the approval of the Minister for Roads, makes .the following Regulations:-

THE KENYA ROADS (KENYA NATIONAL HIGHWAYS AUTHORITY) REGULATIONS, 2013

PART I-PRELIMINARY

Citation and commencement.
1.  These Regulations may be cited as the Kenya Roads (Kenya National Highways Authority) Regulations, 2013 and shall come into operation on the thirty first day after the date of publication.

Interpretation.
2. In these Regulations, unless the context otherwise requires-

"abnormal load" means a load, which by its nature is indivisible and extra-ordinary large and exceeds the legal load or dimensional limits therefore requiring a special permit to travel;

"Act" means the Kenya Roads Act;

"approval" means approval by the Director General;

"articulated vehicle" means a motor vehicle with a trailer having no front-axle and attached to the part of the trailer that is superimposed on the motor vehicle and a substantial part of the weight of the trailer and of its load is borne by the motor vehicle, such a trailer is also referred to as a semi-trailer;

"Authority" means the Kenya National Highways Authority, established under section 3 of the Act;

"authorized officer" means a person appointed, in writing, by the Director General, to exercise the powers or perform the duties as the Director-General may authorize,

"awkward load" means a load which, by its nature or by the nature of the container of vehicle in which it is carried, is difficult to handle or store, which load is divisible and therefore not an abnormal load and includes bitumen, volatile liquids or gases and perishable goods;

"axle" in relation to a vehicle, means a device, whether continuous across the width of the vehicle or not, by which the wheels of the vehicle rotate and which is placed that, when the vehicle is travelling straight ahead, the vertical centre-lines of the wheels are in one vertical plane at right angles to the longitudinal centre-line of the vehicle;

"axle load" means weight transmitted on the road by an axle bearing two or more pneumatic tyres;

"axle-massload" the sum of the wheel massload of all wheels on an axle;

"axle unit", in relation to a vehicle, means-

(a) a set of two or more parallel axles of the vehicle which are interconnected to form a unit; or

(b) for the purpose of the definition of "wheelbase", in the case of a trailer, two or more axles, whether interconnected or not, where the distance between adjacent axles is less than one comma two metres;

"commercial vehicle" means a motor vehicle constructed or adapted for the carriage of goods or burdens of any description in connection with any trade, business or agriculture, but does not include any type or class of motor vehicle which the Registrar may, by notice in the Gazette, declare not to be commercial vehicles for the purposes of the Act;

"dealer" means a person who deals in the business of motor vehicles or trailers;

"designated agent" means a person appointed, in writing, by the Director-General to exercise the powers or perform the duties as assigned by the Director-General;

'front end", in relation to-

(a) a vehicle other than a semi-trailer, means the part of the vehicle which projects furthest forward; or

(b) a semi-trailer, means a line running parallel with the centre-line of the king-pin and connecting the sides of the semitrailer at the widest and furthest point in front of the kingpin;

"front overhang", means the part of a vehicle, excluding any drawbar or coupling, which projects in front of the centre-line of the front axle or the foremost axle of the front axle unit or, if the vehicle has only one axle, which projects in front of the centre-line of the axle, or in the case of a semi-trailer, which projects in front of the centre-line of the king-pin.

"heavy, commercial vehicle" means a commercial vehicle whose tare weight exceeds six thousand seven hundred and twenty pounds;

"gross axle massload", means the maximum massload of a particular axle of a vehicle as specified by the manufacturer, or in the absence of the specification, as determined by the registering authority;

"gross axle unit massload", means a maximum massload of a particular axle unit of a vehicle as specified by the manufacturer or, in the absence of the specification, as determined by the registering authority;

"group of axles" means axle-combinations of more than one axle suspended together with spacing between the axles of 1.2 meters to 2.5 meters;

"gross vehicle mass" means the weight of the motor vehicle or the trailer together with the height of an1'load 'including an) person or animal;

"interconnected" means, for the purpose of the definition of "axle unit", the design is such that an upward force on one axle in an axle unit transmits a downward force to the remaining axle in the axle unit;

"interlink" means a vehicle combination of a trailer attached to a semi-trailer;

"laden weight" of a vehicle means the weight of the vehicle and its load when the vehicle is stationary and ready to take off, and includes the weight of the driver and of any other person carried in the vehicle;

"manufacturer" means a manufacturer of motor vehicles and trailers;

"motor vehicle" means a mechanically' propelled vehicle:

"owner", means the registered owner or in relation to a vehicle which is the subject of a hiring agreement, includes the person in possession of the vehicle under the hiring agreement;

"overall length", means the overall length of a vehicle exclusive of any starting handle and any hood when down,

"overall height in relation to a vehicle, means the distance measured from ground level to the highest part of-

(a) any part of the vehicle, or

(b) any load;

"overall width" means the width measured between parallel planes passing through the extreme projecting points of the vehicle, exclusive of the driving mirror:

"overhang" means the distance measured horizontally and parallel to the longitudinal axis of the vehicle between two vertical planes at the right angles to such axis, the one passing through the point of the vehicle, exclusive of any hood when down, which projects furthest to the rear and the other passing-

(a) in the case of a motor vehicle having two axles, one of which is not a steering axle, through the centre point of that axle;

(b) in the case of a motor vehicle having three axles

(i) where the rear axle is the only steering axle, through the centre point of the middle axle;

(ii) where the rear axle is the only steering axle, through the centre point of the middle axle; or

(iii) where all the axles but one are steering axles, through the centre point of the rearmost axle which is not a steering axle; or

(c) in the case of a motor vehicle ,whether having two axles or three axles, where all the axles are steering axles, through a point situated on the longitudinal axis of the vehicle and such that a line drawn from it at right angles to that axis will pass through the centre of the minimum turning circle of the vehicle;

"overload" means that the axle combinations or gross vehicle mass on a vehicle exceeds the prescribed legal limits for any particular part of public roads;

"premises" means residential premises or business premises including petrol stations, shopping malls, rental flats, supermarkets, factories, hotels, construction or car yards;

"rear overhang" means the portion of the vehicle which projects to the rear of the centre-line of the rear axle or the rearmost axle of the rear axle unit, or if such vehicle has only one axle, which projects to the rear of the centre-line of that axle;

"road" means any public road within the meaning of the Public Roads and Roads of Access Ag1, and includes any other road or way, wharf, car park, footpath or bridlepath on which vehicles are capable of travelling and on which the public has access;

"single axle" means one axle with at least two pneumatic tyres;

“super load" means a load which is extraordinarily large and indivisible, and which has special route requirement, a special vehicle and a permit and includes giant indivisible cranes or large prefabricated structures;

"super single tyres" means a single mounted tyre specially designed for replacing the combination of dual mounted tyres on axles with air suspension;

"steering axle" means an axle, the wheels of which are attached in such a manner that it enables the vehicle concerned to be steered, but excludes –

(a) any axle or axle unit of a semitrailer or trailer;

(b) the rear axle or axles of any motor vehicle; and

(c) any axle of a motor vehicle which is steered by movement of the front portion of the vehicle relative to the rear portion of the vehicle, or which is steered by movement of its articulated frame;

"tandem axle" means three axles suspended together with spacing between the axles from 1.2 meters to 2.5 meters and interconnected in such a manner that any load imposed on them will automatically be distributed as pre-determined by designs of the suspension system, regardless of the roads profile or road condition;

"tare weight" means the weight of a vehicle when unladen, inclusive of the weight of the body and all parts, the heavier being taken when alternative bodies or parts are used, which are necessary to or ordinarily used with the vehicle when used on the road;

"tractor" means a motor vehicle constructed or adapted for the purpose of hauling trailers but which is not itself designed to carry goods or passengers;

"trailer" means a vehicle designed to be drawn by a motor vehicle, but does not include a sidecar attached to a motor cycle;

"vehicle" includes a motor vehicle, a trailer or any other conveyance used on a road;

"weight measures bureau" means a body authorised to certify the correctness of weighing scales as the competent authority of the state, as defined by the Weights and Measures Act.

PART II-RATES AND FEES PAYABLE FOR USE OF FACILITIES

Hire services for bridges.
3. (1) The Authority may, on request by a person, hire out to the person a modular bridge for temporary crossing.

(2) A person who hires a modular bridge from the Authority for temporary crossing shall pay to the Authority hiring charges at the rate of twenty five thousand per metre per month or any amount not exceeding twenty five thousand per metre per month.

(3) The hirer shall execute a bank guarantee equivalent to ten percent of the total hire amount which shall be refundable on delivery of the bridge in a good condition to the Authority at the end of the lease period.

(4) The hirer shall be responsible for the repair or replacement of the bridge in case of any damage occasioned to the bridge for the duration of the lease period,

(5) The Authority shall determine the extent of damage that may require replacement by the hirer.

Hire of service ducts in a bridge.
4. A person who wishes to use the service ducts provided in a bridge structure, for purposes of passing a service, shall use the service duct on approval by the Director-General, and at a fee of five thousand shillings per metre diameter length per year.

Hire services for culverts.
5. (1) The Authority may, on application by a person, hire out to the person a steel pipe culvert for temporary crossing.

(2) The Authority shall charge for the hire of a steel pipe culvert for temporary crossing at the rate of seventeen thousand five hundred shillings per metre per month.

(3) Any period less than twelve months shall be charged on a pro rata basis at a rate of not less than seven thousand six hundred and seventy per metre per month.

(a) The hirer shall execute a bank guarantee equivalent to ten percent of the total hire amount which shall be refundable on delivery of the culvert in a good condition to the Authority at the end of the lease period.

(5) The hirer shall be responsible for repair or replacement of the culvert, in case of any damage occasioned to the culvert in the duration of the lease period.

(6) The Authority shall determine the extent of damage that may require replacement by the hirer.

Use if road reserves and abutting areas.
6. (1) A person who wishes to make use of any portion of a road reserve on a class A, B or C road, shall make an application to the Director-General.

(2) A person who wishes to erect a structure on a road reserve or on land located on the abutting areas of the road reserve shall apply to the Director-General, and shall attach designs prepared by a registered engineering consultant.

(3) The Authority shall examine and approve the designs of any structure required to be established on a road reserve or on abutting areas before granting the approval to establish a structure on the road reserve or abutting areas, subject to the works being supervised by a registered engineer.

(4) The payment of the fees specified in Part I A of the Schedule shall be made on approval by the Authority.

(5) The fees shall be payable in advance and non-payment shall attract a penalty of not more than one thousand shillings for each month of the delay.

(6) The placement, removal or relocation of any services or structures to or from the road reserve, shall be done under the supervision of a registered engineer and at the owner's expense.

(7) The removal or relocation of services or structures from or within the road reserve, shall be effected within thirty days after issue of notice to that effect by the Authority.

(8) A person shall not place any service or structure on a road reserve without the permit issued by the Authority.

(9) The structures not permitted by the Authority shall be removed by the owner, or if removed by the Authority or its authorized agents, the owner shall reimburse the Authority for the cost of the removal.

(10) If the Authority, on its own, removes a structure placed on a road reserve contrary sub-regulation (6), the person responsible for placing the structure on a road reserve shall be liable to pay to the Authority an additional fifty percent charge in addition to the cost of removal.

(11) The Authority shall not be responsible for storage or safety of any items removed or relocated from the road reserve.

Excavations for pipes, ducts or cable crossings under road pavement.
7. (1) A pipe, duct or cable crossing under the road pavement shall be placed using the micro-tunneling method, where possible, and any excavations made pursuant to the placement of the pipe, duct or cable shall be restored to the original ground state at the owners' expense.

(2) Where micro-tunneling is not possible, open excavations of road pavement may be permitted by the Authority, subject to pavement of the amount set out in Part I B of the Schedule being paid to the Authority per metre length of the road carriageway excavated.

(3) The applicant shall execute a bank guarantee equivalent to ten percent of the total hire amount which shall be refundable on restoration of the road pavement to good condition upon completion of laying of pipes, ducts or cable crossings.

Charges for use of hardstone quarries.
8. (1) A person who, for the purpose of building a road, wishes to excavate building material from any of the Authority's quarries shall seek the approval of the Authority and pay the prescribed fees at the rate of fifteen percent of the value of blasted and crushed stone at the quarry gate.

(2) Where a crusher produces more than ten thousand meters cubic per month, as evidenced by certificates authenticated by the Authority's representative, the quantity over ten thousand meters shall be charged pro rata at the rate of two hundred per cubic metre:

(3) Where a crusher produces less than ten thousand meters of stone per month a fee of fifteen percent of the value of blasted and crushed stone shall be payable at the quarry gate.

PART III-MAXIMUM WEIGHT OF VEHICLES

Installation of weighbridges.
9. (1) The weighbridge specified in Part II of the Schedule shall be the installed weighbridges.

(2) The Minister may, by notice in the Gazette, increase or decrease the number of number of installed weighbridges.

(3) The Authority shall install static weighbridges or cause other devices for detection to be installed on roads and may erect road signs which shall require any category of motor vehicles to be weighed.

Overload offence.
10. (1) A person who being the driver of a motor vehicle or in charge of a motor vehicle, disobeys a direction on a road sign created pursuant to the provision of regulation 9, or when required to submit the motor vehicle to be weighed on a weighbridge by an authorized officer, fails to submit the motor vehicle to being weighed on a weighbridge or be tested by a device, commits an overload offence.

(2) A person shall not, unless in accordance with a valid special permit granted by the Authority, drive or use, or cause to be driven or used on any public road in Kenya any motor vehicle whose gross vehicle mass exceeds the weight specified in relation to a vehicle of such description except where –

(a) such gross vehicle mass is distributed on axles in the manner specified in the Traffic Act;

(b) the overall dimensions of motor vehicle and trailer including when laden does not exceed the legal height limit.

(3) A person who-

(a) drives or uses or causes or permit to be driven or used any motor vehicle or trailer on any road in contravention of any provisions of these regulations;

(b) in any matter, fails to comply with a condition for issuance of a special permit issued by the Authority; or

(c) who with intent to deceive or defraud, alters, varies, defaces, forges or in any manner interferes with the permit, commits an offence.

Issuance of special permit.
11. The Authority may issue a special permit, upon application by any person, allowing transportation of an abnormal load provided the following conditions are met-

(a) presentation of the vehicle and load to be weighed;

(b) provision of escort;

(c) the use warning lights and devices;

(d) submission of a schedule of travel times; and

(e) any other matter, which in the 'opinion of the Authority is necessary for the carriage of the load and the protection of road infrastructure and the environment.

Abnormal load.
12. (1) A motor vehicle or trailer which carries an abnormal, shall not use the road unless the registered owner has-

(a) paid an abnormal load permit fee set out in part 1D of the Schedule to the Authority; and

(b) been issued with a special permit in accordance with regulation 11.

(2) Where there is an abnormal load whose width exceeds the legal limit, the registered owner shall provide an escort vehicle at his own expense, and the Authority shall issue him with a special permit in accordance with regulation 11 on payment of the fee prescribed in Part ID of the Schedule.

(3) Where a vehicle carries an abnormal load which can cause damage to the road infrastructure, the registered owner shall comply with the conditions set out in the permit by the Authority to prevent any part of the road or bridge from being damaged.

(4) If visible damage is made to a bridge road structure or road furniture in the course of transportation of an abnormal load the registered owner shall be liable for any axle or gross vehicle mass overload fee payable in accordance with the Schedule to these Regulations.

Offloading.
13. (1) If a vehicle is overloaded and the load is considered to be awkward, it shall not be off-loaded at the weighbridge station unless special and legal safety precautions are undertaken; and the registered owner of the vehicle shall be required to pay a fee for each overloaded axle or for the excess gross vehicle weight.

(2) If the destination is further away than the starting point for off-loading to legal limits, the vehicle may proceed after having redistributed the cargo.

Notification of overload offence and payment overload fee.
14. (1) Subject to regulation 13, the notification in the weighbridge report form shall form the basis for imposing fees where the vehicle is found to be overloaded in accordance with these Regulations.

(2) Upon issuance of the weighbridge report form, it shall be the duty of the driver to notify the registered owner of an overload offence and the registered owner shall be required to pay the overload fee.

(3) The registered owner of the motor vehicle pulling the trailer is in breach of regulation 10, the owner of the motor vehicle shall be liable for the overload offence and shall be required to pay overload fees.

(4) In order to secure payment of fees, an overloaded vehicle shall be detained free of charge by the Authority for the first three consecutive days, and subsequently, a fee of two thousand shillings shall be charged for each extra day until proof of payment is produced.

(5) Subject to the provisions of this regulation detained vehicles shall be held under the owner's responsibility and payment of fees prescribed in Part 1E of the Schedule shall be made either by cash or irrevocable bankers' cheque in United States dollars or its equivalent in Kenya Shillings.

Procedures to control overload.
15. (1) Where a vehicle is overloaded or is in contravention of these Regulations, an authorized officer shall undertake overload control measures and enforce these regulations.

(2) Subject to sub-regulation (1), the driver shall follow all the instructions issued by an authorised officer so that road safety and overload control procedures can be adhered to.

(3) Where a vehicle is found to have bypassed or absconded from a weighbridge station, whether overloaded or not, the registered owner shall be liable to pay a bypassing or absconding fee of two thousand United States dollars or its equivalent in Kenya Shillings, and subject to the provisions of these Regulations if the vehicle is found to be overloaded, the overloading fee and charging procedures provided in these Regulations shall be instituted in addition to the absconding fee.

(4) Failure to adhere to the instructions of the Authority or the police shall constitute an offence, punishable by detention of the vehicle and cargo at the expense and risk of the registered owner.

(5) If the fee provided in this regulation is not paid within ninety days from the date of imposition, the Authority shall issue a notice of sale by auction of the vehicle and the cargo.

(6) Subject to sub-regulation (5), before the cargo is disposed of, the Authority shall publish a notice in the Gazette and in two newspapers of national circulation within fourteen days after the motor vehicle or trailer has been impounded requiring the owner to claim for the goods failure to which the goods will be disposed off.

(7) The proceeds of any such sale shall cover the charges occasioned by sale and may include, the cost of the advertisement and removal of the vehicle or trailer while the remaining proceeds, if any shall be payable to the registered owner, or where the owner fails to claim within six months of the sale, the proceeds shall be deposited to the Authority.

(8) For security reasons the Authority shall notify the nearest police station within twenty four hours concerning a vehicle detained at the weigh bridge station.

Weighing procedures.
16. An authorized officer may-

(a) require the driver of a vehicle to stop the vehicle;

(b) enter the vehicle;

(c) inspect-

(i) any load being carried in or on the vehicle; or

(ii) any record relating to any load in or on the vehicle;

(d) weigh the vehicle and any load being carried in or on the vehicle;

(e) weigh the amount of weight being borne by an axle or a group of axles;

(f) inspect any record relating to; issued or required under any transport legislation;

(g) inspect any record, object or thing that relates to the vehicle, its operation or any load carried in or on the vehicle; or

(h) perform or cause to be performed tests or examination of or in respect of the vehicle or any load carried in or on the vehicle.

Weighing scales.
17. (1) The authorized officer shall ensure that a scale is always set to zero before weighing starts.

(2) When using single axle weighbridges, the gross vehicle mass shall be calculated on the basis of the sum of weight of the different axles.

(3) The scale authorized by "Weights and Measures Bureau" shall be used by an authorized officer.

(4) The authorized officer shall issue a weighbridge report form to the driver who shall acknowledge the weighbridge report by signing on the reverse as an indication that he has concurred with the contents of the report concerning the vehicle particulars and weighing scale reading shown.

(5) Where the load complies with the legal axle weights and gross vehicle mass, a weighbridge report form shall be considered to be a compliance permit in accordance with these Regulations and the driver shall carry the permit throughout the journey.

(6) If there is reason to believe that the vehicle subsequent to control has been reloaded or tampered with in any way, the vehicle may be reweighed and a new weighbridge report form issued.

Exemption in special circumstances.
18. (1) The Authority may exempt a vehicle from being weighed, in the following special circumstances-

(a) where transportation relates to matters of national security; or

(b) where a motor vehicle is used to transport relief or for emergency infrastructure restoration following a natural disaster.

(2) The Authority shall issue the owner with a special permit before commencement of the journey providing the circumstances of the waiver prescribed in sub-regulation (1).

Appeal.
19. (1) A person aggrieved by the decision of the authorized officer or the Authority, refusing to grant a weighbridge report or any permit required to be granted under these Regulations, may appeal against the decision to the Minister.

(2) Where a person is not satisfied with the decision of the Minister under sub-regulation (l), the person may appeal to the High Court.

PART IV-DAMAGE TO STRUCTURES

Issuance of certificate of cost.
20. Where a person causes damage to the road drainage structures, other road structures or furniture, the Director General shall issue a certificate on that behalf stating the amount of making good such damage.

Cost of restoration.
21. Where a person causes damage to a bridge or a culvert, he shall be liable to pay the Authority or make good the damage occasioned as follows-

(a) damage to abutment, pier, beams and deck of reinforced concrete bridges of not less that two hundred milimeter shall be made good or repaired based on a rate of one million nine hundred and sixty thousand shillings per cubic metre of reinforced non-cementitious, epoxy shrinkage compensated, grout material or any other material tested in a designated laboratory to meet the specifications and approved by the Director-General;

(b) damage to reinforced concrete structures causing repairable cracks of 0.25 milimeter but less than 1 milimeter, to abutment, pier, beams, deck slab, or similar damage caused to reinforced concrete box culverts shall be made good or repaired based on a rate of five hundred and forty thousand shillings per cubic metre of grout or any other material tested in a designated laboratory to meet the specifications and approved by the Director-General;

(c) repairable damage to steel components of a bridge shall be undertaken at the rate of two hundred and twenty four thousand shillings per ton of fabricated mild steel;

(d) damages to crash barriers made of flex beams and post, concrete or Steel post, shall be made good by total replacement of damaged part with new parts at a rate of thirteen thousand five hundred per metre run of completed work;

(e) damage to armco and concrete pipe culverts shall be made good by total replacement of the damaged line with a new line at the offender's cost. The charges for replacement of such damages will be guided by the following-

(i) armco culvert shall be replaced at thirty thousand shillings per metre for a 1.5 meter diameter culvert and thirty five thousand shillings per metre for a 2.0 meter per metre diameter culvert; and

(ii) concrete culvert shall be replaced at sixteen thousand five hundred shillings for a six hundred milimeter diameter culvert and eighteen thousand shillings for a nine hundred milimeter diameter culvert.

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