Act No: CAP. 472
Act Title: CUSTOMS AND EXCISE
SUBSIDIARY LEGISLATION
Arrangement of Sections
Made under section 9 of the Act
APPOINTMENT AND LIMITS OF PORTS, CUSTOMS AREAS, ETC., 1984
[L.N. 128/1984, L.N. 163/1990.]

In Exercise of the powers conferred by section 9 of the Customs and Excise Act, the Commissioner of Customs and Excise appoints—

(a)

the places specified in the first column of the First Schedule, as ports for the purposes of the Act and the limits of each port shall be those set out in the second column of that Schedule;

(b)

the places specified in the Second Schedule for the purposes set out in the Schedule;

(c)

the places specified in the Third Schedule as places for loading and unloading for the purposes set in the third column of that Schedule and the limits of each place shall be those set out in the second column of that Schedule;

(d)

the places specified in the first column of the Fourth Schedule, as customs airports and the limits of each airport shall be those set out in the second column of that Schedule;

(e)

the places specified in the first column of the Fifth Schedule as customs airports for the limited purposes set out in the third column of that Schedule and the limits of each airport shall be those set out in the second column of that Schedule;

(f)

the places specified in the Sixth Schedule as boarding stations subject to such conditions as the proper officer may specify;

(g)

the places specified in the first column of the Seventh Schedule as customs areas and the purposes and limits of each area shall be those set out in the second column of that Schedule;

(h)

the places specified in the Eighth Schedule, as sufferance wharves for the purposes and subject to the conditions set out in that Schedule;

(i)

the places specified in the second column of the Ninth Schedule, as places for the landing and embarkation of persons within the ports set out in the first column of that Schedule;

(j)

the places specified in the second column of the Tenth Schedule, as places for the examination of goods (including baggage) within the ports set out in the first column of that Schedule;

(k)

the entrances and exits specified in the second column of the Eleventh Schedule as entrances and exits to and from the ports set out in the first column of that Schedule;

(l)

the roads and routes specified in the Twelfth Schedule as roads or routes over which goods in transit shall be conveyed.

FIRST SCHEDULE

[L.N. 163/1990.]

(1) PORTS FOR VESSELS

(2) FRONTIER PORTS

SECOND SCHEDULE

PLACES AND CUSTOMS AREAS FOR LIMITED PURPOSES
(1)

Bonded warehouses licensed under section 51 of the Customs and Excise Act (Cap. 472), for warehousing of goods therein.

(2)

Post Parcels Offices as customs areas for imports, exports and coastwise cargo.

THIRD SCHEDULE

PLACES OF LOADING AND UNLOADING

FOURTH SCHEDULE

[L.N. 163/1990.]

CUSTOMS AIRPORT
Place

Limits

Garissa

All that area of land, more particularly described in the AGA section of the Aeronautical Publication issued by the Director of Civil Aviation provided that the airport shall be used by aircraft arriving from or departing to foreign airports only when adequate notice has been given to the proper officer and he has signified his prior approval to such arrival or departure and confirmed his ability to attend.

FIFTH SCHEDULE

CUSTOMS AIRPORTS FOR LIMITED PURPOSES

SIXTH SCHEDULE

BOARDING STATIONS

(1) AT PORTS FOR VESSELS

(2) AT CUSTOMS AIRPORTS

SEVENTH SCHEDULE

CUSTOMS AREAS

(1) AT PORTS FOR VESSELS

(2) AT FRONTIER PORTS

(3) AT CUSTOMS AIRPORT

SEVENTH SCHEDULE-continued

(4) CUSTOMS INLAND PORTS

Container Terminal, Embakasi

The area enclosed by the perimeter fence as and defined in Plan No. 98112/52A and in the letter from the Commissioner of Lands Ref. 98112/79 dated 3rd November, 1982.

EIGHTH SCHEDULE

SUFFERANCE WHARVES FOR VESSELS
A.

For loading of cattle, sheep, and goats subject to the condition that vessels shall report to the proper officer at Lamu before proceeding to load and prior to departure coastwise—

NINTH SCHEDULE

PLACES FOR THE LANDING AND EMBAKATION OF PERSONS

(1) AT PORTS FOR VESSELS

(2) AT CUSTOMS AIRPORTS

TENTH SCHEDULE

PLACES FOR THE EXAMINATION OF GOODS (INCLUDING BAGGAGE)

(1) AT PORTS FOR VESSELS

(2) AT FRONTIER PORTS

(3) AT CUSTOMS INLAND PORTS

(4) AT CUSTOMS AIRPORTS

ELEVENTH SCHEDULE

ENTRANCES AND EXITS TO AND FROM CUSTOMS AREAS OR CUSTOMS AIRPORTS

(1) AT PORTS FOR VESSELS

Kisumu

The Main Gate No. 1, so distinguished by the red figure on Drawing No. 1710/3 in the office of the Commissioner.

Mombasa-Kilindini

At the foot of Moi Avenue, Gates Nos. 8 and 9, so distinguished by the figures on Plan No. PEM/211 in the office of the Commissioner.

General—persons and cargo (other than import cargo) by road and rail traffic

Adjoining the entrance to the Dockyard Gates Nos. 2 and 3, so distinguished by the figures on Plan No. PEM/211 in the office of the Commissioner.

General—persons and cargo by road traffic

At the foot of Moi Avenue, Gate No. 10, so distinguished by the figures on Plan No. PEM/211 in the office of the Commissioner.

Old Port

General—Persons and Cargo

The main gate leading on to Treasury Square, Mombasa.

Special—Export Cargo

The wooden gate adjacent to the main gate leading on to Treasury Square, Mombasa.

Special—Cement

The main entrance to the cement silos coloured blue on Plan No. F. 12/ARCH/l/A in the office of the Commissioner.

(2) AT CUSTOMS AIRPORTS

(3) CUSTOMS INLAND PORTS

Container Terminal Embakasi.

TThe entrances and exits as specified in Plan No. 98112/52A and the letter from the Commissioner of Lands Ref. 98112/79 dated the 3rd November, 1982.

TWELFTH SCHEDULE

ROADS OR ROUTES OVER WHICH GOODS IN TRANSIT SHALL BE CONVEYED

Goods in transit may only be conveyed over roads or routes specified in this Schedule and the goods must enter or leave Kenya through a port or customs airport appointed under the First Schedule—

1.

National and International Trunk Roads as shown on the Map of Kenya No. SK 81 KENYA (Second Edition) in the office of the Commissioner—

(a)

International Trunk Roads A 109 and A 104, joining Mombasa—Nairobi—Naivasha—Nakuru—Eldoret—Malaba.

(b)

International Trunk Road A 14, joining Mombasa—Lunga Lunga.

(c)

International Trunk Roads A 109 and A 23, joining Mombasa—Voi—Taveta.

(d)

National and International Trunk Roads B8 and A3, joining Mombasa—Malindi—Garissa—Liboi.

(e)

International Trunk Road Al, joining Kisii—Migori—Isebania.

(f)

International Trunk Road A2, joining, Nairobi—Nanyuki—Isiolo—Marsabit—Moyale.

(g)

International Trunk Road joining Lodwar—Kakuma—Loikichogio.

(h)

International Trunk Roads A2 and A3, joining, Nairobi—Thika—Garissa—Liboi.

(i)

International Trunk Roads A109 and A104, joining Nairobi—Athi River—Namanga.

(j)

National and International Trunk Roads A104, B1 and A1, joining Nakuru—Kericho—Kisumu — Yala—Busia.

(k)

National Trunk Road joining Garissa—Wajir—Mandera.

(l)

National Trunk Road C102, joining Nairobi-Sultan Hamud—Loitokitok.

(m)

National Trunk Road C103, joining Nairobi—Namanga—Loitokitok.

2.

The following routes operated by Kenya Railways Corporation:

(a)

Mombasa—Voi—Nairobi—Nakuru—Londiani—Kisumu.

(b)

Nakuru—Eldoret—Malaba.

(c)

Voi—Taveta.

The Customs (Appointment and Limits of Ports, etc.) Notice (Sub. Leg.) and the Customs (Appointment of Customs Areas, etc.) Notice (Sub. Leg.) are revoked.

CUSTOMS AND EXCISE (REMISSION) (AID PROJECTS) ORDER, 1992
[L.N. 138/1992, L.N. 118/1996, L.N. 92/2001, L.N. 198/2003.]
1.

This Order may be cited as the Customs and Excise (Remission) (Aid Projects) Order, 1992.

2.

The whole of the import duty payable on materials and equipment, including vehicles, which the Commissioner is satisfied are for use in the construction, equipping or execution of an aid project to be, or in the process of being, carried out pursuant to an agreement between the Government and a foreign government, or a foreign or international agency, institution, foundation or organization, supplying or making available aid funds, materials or equipment (in this Order called the aid agency) is remitted subject to the conditions set out in paragraph 3.

3.

The conditions referred to in paragraph 2 are that—

(a)

the agreement expressly provides for remission of duty on the materials and equipment, including vehicles; and;

(b)

the agreement provides that the materials and equipment, including vehicles, shall become the property of the Government, any public university, the Kenya Medical Research Institute, the Kenya Bureau of Standards or such other non-profit making organization in Kenya as the Minister may, by notice in the Gazette, specify for the purposes of this Order; or

(c)

the materials and equipment, including vehicles, belong to, and whilst in Kenya continue to belong to, the aid agency; or

(d)

both of subparagraphs (a) and (b) apply; and

(e)

within ninety days after the completion of the project the aid agency provides the Commissioner—

(i) in the case of a situation referred to in subparagraph (b), with a detailed list of items of equipment which have been used in the execution of the project and which, not forming part of the project itself, have become the property of the Government or other organization referred to in that subparagraph;
(ii) in the case of a situation referred to in subparagraph (c), with a detailed list of items of equipment which have been used in the execution of the project and which remain the property of the aid agency;
(f)

remission of duty under paragraph 2 does not apply to fuels, oils and lubricants for use in vehicles and equipment, whether or not expended in the implementation of the project;

Provided that the Minister may grant remission of duty under this subpargraph after taking into consideration the terms and conditions of the funding agreement.

(g)

the commissioner may, if he considers it necessary, inspect the project at any time during its execution.

4.

Duty shall become payable if goods which are the subject of this Order are used or disposed of in a manner inconsistent with the purpose for which the remission is granted.

5.

The Customs and Excise (Remission) (Aid Projects) Order is revoked.

CUSTOMS AND EXCISE (REMISSION) (MEDICAMENTS) ORDER, 1982
[L.N. 85/1982, L.N. 23/1983.]

1. This Order may be cited as the Customs and Excise (Remission) (Medicaments) Order, 1982.

2. The whole of the import duty payable on raw materials for the sole use in the manufacture of medicaments (including veterinary medicaments) as set out in Part II of the Schedule by the pharmaceutical manufacturers set out in Part I of the Schedule is remitted.

SCHEDULE

PART I

Beecham of Kenya Limited.

The Boots Company (K) Limited.

Chemafric Pharmaceutical Division of Kensara Limited.

Cosmos Limited.

Dawa Pharmaceuticals Limited.

Diddy Pharmaceuticals Limited.

Elys Chemical Industries Limited.

Glaxo East Africa Limited.

Hoechst East Africa Limited.

Infusion Kenya Limited.

Laboratory & Allied Equipment.

Mac ’s Pharmaceuticals Limited;

Manhar Brothers (K) Limited.

Nicholas Laboratories (E.A.) Limited.

P.A.C. Laboratories Limited.

Pfizer Laboratories Limited.

Pharmaceutical Manufacturing Company of Kenya Limited.

Sterling Products International Limited.

Vick Products (E.A.) Limited.

Wellcome Kenya Limited.

Novelty Manufacturing Limited.

PART II

Empty glass vials.

Vial seals.

Acetazolamide BP.

Acetylsalicylic Acid.

Activated Attapulgite.

SCHEDULE - continued

Allopurinol BP.

Aluminium Hydroxide.

Amodiaquine.

Aminophylline.

Amitriptyline.

Amprolium Hydrochloride

Analgin.

Asafen Granules.

Atropine BP.

Belladonna.

Bendrofluazide.

Benzethonium Chloride.

Benzhexol Hydrochloride BP.

Benzyl Benzoate BP.

Bephenium Hydrozynaphthoate BP.

Beserol Granules.

Betamethasone.

Bisacodyl.

Bithionol Sulphoxide/Bithionol.

Bromohexane.

Caffeine.

Calcium Sennoside.

Calcium Sodium Lactate.

Camphorated Opium Tincture.

Camyofin.

Carbamazepine BP.

Carbimazole BP.

Capsicum Tincture.

Chloral Hydrate.

Chlorbutol BP.

Chlordiazepoxide.

Chloroquine.

Chlorpheniramine Malcate.

Chlorpromazine.

Chlorpropamide.

Chaoline Chloride.

Clioquinol.

Codein Phosphate BP.

CVC Medicated Ointment (vicks).

Cyanocobalamin.

Cyclophosphamide BP.

Dapsone.

Dequalinium Chloride.

Derbrisoquine.

Desonide.

Dexamethasone.

Dextran.

Dextromethorphan.

Diazepam.

Dichlorophen BP.

Dicyclomine Hydrochloride BP

Digozin BP.

Dihydrostreptomycin.

Diloxanide Furoate.

Diphenhydramine.

Ephedrine.

Epsom Salts.

Ergotamine.

Ergot Extract.

Ethambutol.

Ferrous Sulphate.

Flumethazone.

Fluocinolone.

Folic Acid.

Frusemide.

Furaltadone Hydrochloride.

Furasolidone.

Gentian Derivatives.

Glycerine Trinitrate.

Griseofulvin BP.

Guaiphenesin.

Guanethidine Sulphate BP.

Haloperidol BP.

Hamamelis Extract/Tincture.

Hexyl Resorcinol.

Hydrocortisone.

Hydrofilumentiazide BP.

Hyoscine -N-Nutylbromise.

Hysocyamus Extract/Tincture.

Iburofen.

Ichthammol.

Indomethacin.

Ipecacuanha Extract/Tincture.

Isoniazid.

Levamisole.

Lighnocaine Hydrochloride BP

Lorazepan.

Mabendazole.

Magnesium Hydroxide.

Magnesium Trisilicate.

Meclozine.

Medazepam.

Mepacrine.

Mepyramine.

Mercurochrome.

Mesulphen.

Methyldopa.

Methyl Nicotinate.

Methylsalicylate.

Methyltesterone BP.

Metodophramide.

Metriphonate

Metronidazole.

Milk of Magnesia.

Miranol C2M.

Morphine Hydrochloride BP.

Nalidixic Acid.

Niclosamide.

Nicotinamide.

Nitrazepam BP.

Nitrofurantoin.

Nitrofurazone BPC.

Nux Vomica Extract/Tincture.

Oxyphcrnbutazone.

Paracetamol.

Phenobarbitone.

Phenylbutazone.

Phenytoin Sodrum BP.

Phythalysuphathiazole BP.

Pilocarpine.

Piperazine.

Potassium Guaiacol Sulphate.

Prednisolone.

Prednisone.

Privaquine

Probenecid.

Prochlorpherazine.

Proguanil Hydrochloride BP.

Promethazme.

Propanolol.

Pseudoephedrine.

PVP Iodine

Pyridoxine.

Pyrimethamine.

Pyrizinamide BP.

Quinine.

Reserpine BP.

Roboflavine.

Salbutamol.

Salicylic Acid.

Salicylamine.

Senna.

Sodium Lactate.

Squill Tincture/Extract.

Stramonium Tincture/Extract.

Strychnine Nitrate.

Sulphacetamide.

Sulphadiazine.

Sulphadiazine BP/Silver Sulphadiazine.

Sulphadimidine.

Sulphaguanidine.

Sulphamerazine.

Sulphamethoxazole.

Sulphanilamide.

Sulphaphenazole.

Sulphaquinaxoline Sodium BP.

Sulphathiazole BPC.

Tetramisole.

Thenyldiamine.

Theophylline.

Thiacetazone.

Thiamine.

Tincture Chloroform Morphine.

Tinidozole.

Tolu Balsam.

Triclosan.

Trifluoperazine.

Trimethoprim.

Triprolidine.

Undercednoic Acid BP.

Valerian Extract/Tincture.

Vasaka Extract/Tincture.

Vicks Inhaler Medication.

Vicks Vaporub Medication.

Xylometazoline Hydrochloride.

Zinc Exide.

Zinc Undecenoate.

ORDERS DEEMED TO HAVE BEEN MADE UNDER SECTION 138(1) BY VIRTUE OF SECTION 235(2) OF THE ACT
[L.N. 107/1968, L N. 279/1968, L.N. 366/1968, L.N. 139/1969, L.N. 202/1969, L.N. 237/1969, L.N. 46/1970, L.N. 80/1970, L.N. 5/1971, L.N. 25/1971, L.N. 35/1972, L.N. 158/1973, L.N. 90/1976, L.N. 265/1976, L.N. 164/1977, L.N. 137/1978, L.N. 157/1978, L.N. 209/1978, L.N. 152/1979,L.N. 15/1981, L.N. 136/1982, L.N. 24/1983, L.N. 200/1983, L.N. 215/1983, L.N. 80/1993.]

Although remission orders are initially made individually they are reproduced here as paragraphs of the one Order. Remission orders of limited or temporary effect are not reproduced: reference should be made to the appropriate annual volumes of subsidiary legislation for these.

CUSTOMS AND EXCISE (REMISSION) ORDER
1.

This Order may be cited as the Customs and Excise (Remission) Order.

2.

The whole, or such part or per centage as is expressly stated, of the import duties and suspended duties payable on the goods specified in the Schedule to this Order have been remitted.

SCHEDULE

1.

(1) Oil well cement which the Commissioner is satisfied is imported into Kenya by the BP-Shell Petroleum Development Company of Kenya Limited, or by a contractor duly appointed by that company, for use by that company or by a contractor duly appointed by that company.

(2)

Any machinery, plant, vehicle (excluding motor vehicles, for private use by individuals), equipment and other goods imported or purchased prior to clearance through the customs by or on behalf of the BP-Shell Petroleum Development Company of Kenya Limited, or by a contractor duly appointed by that company which the Commissioner is satisfied are—

(a)

of a non-consumable nature; and

(b)

for use by that company or by a contractor duly appointed by that company in investigating the possibility of establishing an oil industry in Kenya.

2.

Light amber mineral fuel oil for use in high-speed engines shipped as stores in quantities approved by the Commissioner in any coasting vessel of not less than 10 tons register.

3.

All goods belonging to the State of the City of the Vatican imported or purchased prior to clearance through the customs by and for the official use of the Apostolic Delegation.

4.

The duty payable on cocoa beans imported by Cadbury Schweppes Kenya Limited or their duly appointed agents for the production of cocoa powder by the company shall be 7 per cent ad valorem.

5.

Consignments of casein imported or purchased prior to clearance through the customs by any person with the general or specific agreement of the Ministry of Agriculture.

6.

Goods, including motor vehicles, scientific equipment, drugs, publications of the Netherlands Royal Tropical Institute, other apparatus and materials directly imported by the Netherlands Medical Institute Research Centre or through their approved agents with the agreement of the Ministry of Health.

7.

Goods, including furnishings, equipment and vehicles necessary for establishing and operating Karen College imported directly or through agents by the Government of Denmark with the prior approval of the Ministry of Health.

8.

(1) Motor vehicles for personal use imported or purchased prior to clearance through the customs by members of the armed forces of the United Kingdom who enter Kenya for the purpose of assisting in the staffing, administration or raining of the Kenya Armed Forces:

Provided that—

(i)

a member may import or purchase one motor vehicle only;

(ii)

the motor vehicle shall be imported or purchased within three months of the member’s arrival in Kenya;

(iii)

duty at the rate applicable at the time of disposal shall be paid if a motor vehicle so imported or purchased is disposed of to anyone other than another person entitled to import or purchase a motor vehicle for personal use free of duty.

(2)

Personal effects, and such amount of additional furniture and household goods (but not tobacco or its products, alcohol, piece goods, perfumed spirits, trade goods or other items for sale or disposal to other persons) as he might reasonably require, imported within three months of his first arrival by a member of the armed forces of the United Kingdom or within three months of the arrival of a dependant to join him where the member of the armed forces of the United Kingdom enters Kenya for the purpose of assisting in the staffing, administration or training of the Kenya Armed Forces.

9.

Without prejudice to the generality of that expression, building materials and equipment imported with the prior approval of the Ministry of Education for the construction or extension of Nairobi University.

10.

Goods, including furnishings, motor vehicles, scientific and laboratory apparatus, chemicals, publications and all other teaching materials necessary for establishing and operating the Kenya Science Teachers’ College, directly imported by the Royal Swedish Board of Building and Planning or its approved agent, with the prior approval of the Ministry of Education.

11.

Contraceptives imported by or on behalf of the Family Planning Association of Kenya for the sole use of the association in family planning activities in Kenya, including contraceptive pills, creams, jellies, foams, foaming tablets, condoms, diaphragms, loops, injection Depo Provera and other forms of oral contraceptives.

12.

Printing paper for use in the printing of scriptures, proven as such to the satisfaction of the Commissioner, imported by the Bible Society of East Africa.

13.

Ships manufactured in Kenya or imported into Kenya, where they are registered under sections 3, 46 and 49 of the Merchant Shipping Act (Cap. 389).

14.

Dairy salt and Tetra Pak containers imported by Kenya Co-operative Creameries Ltd., for the manufacture of butter and milk.

15.

Stainless steel tubes, bars and fittings.

16.

Pulp imported by Kenya Paper Mill Limited.

17.

Linseed imported by Rift Valley Products Ltd., and Nakuru Oil Mills Ltd.

18.
(1)

Goods, including machines, teaching equipment and other related equipment, tools and demonstration models, imported by or on behalf of Murang’a Harambee Development Fund or their authorized agents as donations to the fund by benefactors from abroad for the sole use of the Murang’a College of Technology.

(2)

Goods, including machines, teaching equipment and other related equipment, tools and demonstration models, imported by or on behalf of the Murang’a Harambee Development Fund or their authorized agents through the use of the grant made to that fund by the Government of Denmark under an agreement on technical co-operation between the Government of Denmark and the Government of Kenya.

19.

Machinery, plant, vehicles (excluding motor vehicles for private use by individuals), equipment and other goods imported or purchased prior to clearance through the customs by or on behalf of Societa Minerali Radioattivi Energia Nucteare Somiren S.P.A. or by a contractor duly appointed by that company, which the Commissioner is satisfied—

(a)

are of a non-consumable nature; and

(b)

are for use by the company in prospecting for radioactive minerals in Kenya:

Provided that, in the event of termination of the prospecting, such machinery, plant, vehicle, equipment and goods shall be re-exported and that if disposed of locally duty shall be paid on them at the appropriate rate.

20.

Transmission line towers and sub-station structures imported by or on behalf of Kenya Power and Lighting Company Limited.

21.

Goods purchased prior to clearance through the customs under the Netherlands Aid Agreement with Egerton College and approved by the Ministry of Agriculture.

22.

Materials, equipment and motor vehicles imported or purchased prior to clearance through the customs by or on behalf of the International Planned Parenthood Federation, for use in its official activities in Kenya.

23.

Motor vehicles, equipment, machinery and materials imported or purchased prior to clearance through the customs by, or on behalf of, and for the use of, the National Youth Service.

24.

All sowing seeds imported by the Kenya Farmers’ Association, Kirchoffs (E.A.) Limited, Mitchell Cotts & Co. Limited, Lakhamshi Brothers Limited and any other seed importers certified as such by the Ministry of Agriculture.

25.

Crude pyrethrum extract imported by the Pyrethrum Marketing Board.

26.

Machinery, equipment, measuring instruments and component parts imported by Philips Electric Lamps (E.A.) Limited exclusively for the manufacture of electric lamps, fittings and accessories thereof.

27.

All goods, including materials, equipment and machinery, teaching equipment, tools, and demonstration models, imported or purchased prior to clearance through the customs by, or on behalf of, and for the sole use of, Kirinyaga Technical Institute.

28.

All ships, boats and other vessels imported or purchased prior to clearance through the customs by, and for the use of, Kenya Fishing Industries Limited.

29.

Aircraft, aircraft equipment, aircraft spare parts and accessories imported by and for the use of the Kenya Police.

30.

Yarn imported by Kenwool Enterprises Limited for the manufacture of woollen fabrics by the importer and certified as such excluding yarn capable of use in the manufacture of blankets.

31.

Any motor vehicle donated to—

The National Christian Council of Kenya;

The Church Province of Kenya;

The Kenya Catholic Secretariat;

The Methodist Church in Kenya;

The Presbyterian Church of East Africa;

The Evangelical Lutheran Church in Kenya;

The East African Yearly Meeting of Friends;

The African Inland Church;

The Baptist Convention in Kenya,

imported or purchased prior to clearance through the customs for their official use where—

(a)

recommendation for remission has been made to the Treasury by the National Christian Council of Kenya or the Kenya Catholic Secretariat;

(b)

the Treasury has issued an approval in writing to the commissioner.

32.

Museum and natural history exhibits and specimens, museum showcases, display stands, mounting materials and similar equipment imported for the preparation, storage and display of exhibits, imported by and for the use of the National Museum of Kenya.

33.

Seventy per cent of the import duty payable on unassembled trailers and semi-trailers of tariff No’s. 87.14.010, 87.14.021 and 87.14.029.

34.

Ten per cent of the import duty payable on all petroleum products of tariff heading No. 27.10.

35.

Foodstuffs imported under written authority from the Permanent Secretary to the Treasury by the Maize and Produce Board and the Wheat Board operating as the National Cereals and Produce Board.

CUSTOMS AND EXCISE (REMISSION) (SAFARI RALLY) ORDER
[L.N. 22/1983.]
1.

This Order may be cited as the Customs and Excise (Remission) (Safari Rally) Order.

2.

Subject to paragraph 3, there shall be remitted the whole of the import duty payable on motor vehicles, and spare parts specified in the Schedule, which—

(a)

are imported or purchased prior to clearance through customs for use in the Safari Rally;

(b)

having been temporarily imported under section 143 of the Act for use in the Safari Rally, are purchased during the period of temporary importation by a rally driver resident in Kenya for use in the Safari Rally;

(c)

having been imported under conditions whereby exemption from payment of duty is granted under the Third Schedule to the Act, or whereby remission or refund of duty has been granted by the Minister, are purchased by a rally driver resident in Kenya for use in the Safari Rally;

(d)

in the case of vehicles only, are assembled in Kenya and purchased by a rally driver for use in the Safari Rally.

3.

(1) Remission of duty under paragraph 2 is made on the conditions that—

(a)

it applies only to motor vehicles and parts imported or purchased for use by bona fide rally drivers resident in Kenya who have been approved and recommended to the Minister, or a person authorized by him in writing, by the Safari Rally Committee and accepted as such by him;

(b)

the Minister, or a person authorized by him in writing, shall issue to the Commissioner his written approval for the remission in each case;

(c)

where the motor vehicles or parts cease to be used, or, in the case of parts, to be assigned for use, for Safari Rally purposes, or are disposed of in Kenya to persons not entitled to exemption from, or remission of, duty, duty shall, subject to subparagraph (3), immediately become payable at the appropriate rate;

(d)

the minister may at any time rescind the reemission in respect of any particular motor vehicle or spare parts, in which case the whole of the duty originally payable shall become payable forthwith.

(2)

Nothing in subparagraph (1)(a) or (c) shall prevent a motor vehicle or spare parts from being used in other rallies in Kenya.

(3)

Where a motor vehicle has been kept in Kenya in compliance with the conditions specified in subparagraph (1), and in particular has been entered for, and has taken part in, each Safari Rally during the period of three years from the date of importation, it may, if no rescission of remission has been made, thereafter be sold without payment of duty.

SCHEDULE

SPARE PARTS IN RELATION TO ANY ONE RALLY DRIVER
1.

One engine assembly complete, or such individual parts making up one engine as the rally driver require, including, in either case, a starter motor, alternator and clutch.

2.

One sear box assembly complete.

SCHEDULE—continued

3.

One differential assembly and one front and/or rear axle assembly, or such individual parts making up one front and/or rear axle assembly as the rally driver requires.

4.

Up to four front suspension assemblies, or such individual parts making up those assemblies as the rally driver requires.

5.

Up to two sets of rear shock absorbers.

6.

Up to twelve rally type rims.

7.

Up to thirty rally tyres.

CUSTOMS AND EXCISE (RESTRICTED IMPORTS) (COMMERCIAL VEHICLES) (REVOCATION) ORDER, 1993
[L.N. 144/1993.]
1.

This Order may be cited as the Customs and Excise (Restricted Imports) (Commercial Vehicles) (Revocation) Order, 1993.

2.

The Customs and Excise (Restricted Imports) (Commercial Vehicles) Order, 1980 (L.N. 22/1980) is revoked.

CUSTOMS AND EXCISE (SMALL-SCALE INDUSTRIES) ORDER, 1993
[L.N. 147/1993.]
1.

This Order may be cited as the Customs and Excise (Small-Scale Industries) Order, 1993 and shall come into operation on the 11th June, 1993.

2.

The import duty paid in respect of capital goods imported or purchased under the written authority of the Permanent Secretary to Treasury for the establishment of small-scale industries shall be refunded, subject to such conditions and limitations as the Permanent Secretary may impose.

3.

The Customs and Excise (Small-Scale Industries) Order, 1992 (L.N. 142/1992) is revoked.

CUSTOMS AND EXCISE (SMALL-SCALE INDUSTRIES) (NO. 2) ORDER, 1993
[L.N. 148/1993.]
1.

This Order may be cited as the Customs and Excise (Small-Scale Industries) (No.2) Order, 1993.

2.

The import duty payable in respect of capital goods imported or purchased for the establishment of small-scale industries shall be remitted or refunded in the manner provided for under paragraph 3.

3.

A remission or refund under paragraph 2 shall be graduated in the following manner—

(a)

no remission or refund of import duty shall be applicable in respect of small-scale industries located in the areas designated and bounded in blue on the boundary plans specified in the First Schedule;

(b)

fifty percent of the import duty payable in accordance with the First Schedule to the Act or payment of import duty at the rate of 10% ad valorem, whichever is the higher, shall be payable in respect of capital goods for the establishment of small-scale industries located in areas designated and bounded in red on the boundary plan specified in the Second Schedule;

(c)

import duty payable is remitted such that ten percent ad valorem or 10% of the specific rate specified in the First Schedule to the Act, whichever is the higher, is payable in respect of capital goods for the establishment of small-scale industries located in areas other than those referred to in paragraphs (a) or (b);

(d)

where import duty has been levied and paid, the amount to be refunded shall be that amount which would have been remitted under paragraphs (b) and (c) had the import duty not been paid.

4.

This Order shall not apply to capital goods whose cost and freight value at Mombasa or any other place of entry is in excess of fifty million shillings.

5.

For the purpose of this Order, "capital goods" include plant, machinery and equipment used or to be used in the establishment of small-scale industries but does not include motor vehicles, office furniture, typewriters, computers, copying equipment or raw materials.

FIRST SCHEDULE

Area

Boundary Plan No.

Nairobi and Environs

MF 360/1

Mombasa and Environs

MF 360/2

SECOND SCHEDULE

Area

Boundary Plan No.

Nairobi and Environs

MF 360/1

Mombasa and Environs

MF 360/2

Kisumu and Environs

MF 360/3

Nakuru and Environs

MF 360/4

Machakos and Environs

MF 360/5

Meru and Environs

MF 360/6

Eldoret and Environs

MF 360/7

N.B. – Copies of the boundary plans can be viewed at the office of the Permanent Secretary, Treasury, P.O. Box 30007, Nairobi, or the office of the District Commissioner for the specified areas or Provincial Commissioner in case of the Nairobi Area.

CUSTOMS AND EXCISE (RATE OF EXCHANGE) ORDER, 1993
[L.N. 149/1993.]
1.

This Order may be cited as the Customs and Excise (Rate of Exchange) Order, 1993.

2.

The rate of exchange for any foreign currency for use in the valuation of imports in any week under section 127 shall be determined by the Commissioner for Customs and Excise as the sum of—

(a)

the proportion, 0.25, multiplied by the average market selling rate by banks or financial institutions for that foreign currency over the previous week; and

(b)

the proportion, 0.75, multiplied by the selling rate for sight drafts for that foreign currency as notified by the Central Bank of Kenya for the last day of the previous week.

3.

The rate of exchange for any foreign currency for use in the valuation of exports in any week under section 127A shall be determined by the Commissioner for Customs and Excise as the sum of—

(a)

the proportion, 0.25, multiplied by the average buying rate by banks or financial institutions for that foreign currency over the previous week; and

(b)

the proportion, 0.75, multiplied by the buying rate for sight drafts for that foreign currency as notified by the Central Bank of Kenya for the last day of the previous week.

4.

Where a foreign currency is not traded by the banks and financial institutions, the market exchange for that foreign currency shall be determined by the Commissioner by multiplying the market exchange for the United States dollar by the ratio of the rate of exchange notified by the Central Bank for that currency to the rate of exchange notified by the Central Bank for the United States dollar.

CUSTOMS AND EXCISE (DUMPING DUTY) ORDER, 1994
[L.N. 209/1995.]
1.

This Order may be cited as the Customs and Excise (Dumping Duty) Order, 1994 and shall come into operation on the 16th June, 1995.

2.

There shall be charged dumping duty on the goods described in the second column, and imported from the country specified in the third column, at the rate specified in the fourth column of the Schedule.

3.

The Customs and Excise (Dumping Duties) Order, 1994 (L.N. 190/1994) is revoked.

SCHEDULE

DUMPING SITES

CUSTOMS AND EXCISE (REMISSION) (CHARITABLE ORGANISATIONS) ORDER, 1999
[L.N. 65/1999, L.N. 93/2001, L.N. 64/2003, L.N. 46/2004.]
1.

This Order may be cited as the Customs and Excise (Remission) (Charitable Organisations) Order, 1999.

2.

In this Order, unless the context otherwise requires—

“charitable organization” means a non-profit making organisation registered or exempt from registration by the Registrar of Societies under section 10 of the Societies Act (Cap. 108) and approved by the Commissioner of Social Services, or registered by the Non-Governmental Organizations Co-ordination Act, 1990 (No. 19 of 1990) and whose income is exempt from tax under paragraph 10 of the First Schedule to the Income Tax Act (Cap. 470);

“Commissioner-General” means the Commissioner-General of the Kenya Revenue Authority appointed under section 11 of the Kenya Revenue Authority Act (Cap. 469).

3.

The duty payable on imported goods (excluding passenger motor vehicles of a seating capacity of less than twenty-six persons, building materials, audio and audio-visual electronic equipment, spare parts, office furniture and other office equipment, stationery, textiles, new and used clothing and footwear, maize, wheat, sugar, milk, rice, and edible vegetable fats and oils), donated or purchased for donation by any person to non-profit making organizations or institutions approved by the Government, for their official use or for free distribution to poor and needy persons, or for use in medical treatment, educational, religious or rehabilitation work, is remitted, subject to the conditions set out in paragraph 4:

Provided that remission under this paragraph may be granted in respect of—

(i) all goods (excluding passenger motor vehicles of a seating capacity of less than fourteen persons, building materials, audio and audio-visual electronic equipment, spare parts, office furniture and other office equipment and stationery) donated or purchased for donation by any person to registered homes for poor and needy persons, subject to approval by the Minister; or
(ii) maize, wheat, sugar, milk, edible vegetable fats and oils, rice, textiles, new and used clothing and footwear imported during periods of civil strife, national calamity or disaster declared under any law for the time being in force, or where they are intended for use in officially recognized refugee camps in Kenya. [L.N. 93/2001, L.N. 64/2003, L.N. 46/2004.]
4.

The conditions referred to in paragraph 3 are that—

(a)

an application for remission pursuant to this Order shall be lodged with the Minister through the Commissioner-General;

(b)

an application under subparagraph (a) shall be accompanied by evidence that the goods to be imported or purchased for donation to the charitable organization are for the official use of the organization or are for free distribution to the poor and needy persons, or are for use in medical treatment, educational, religious or rehabilitation work or other Government approved projects;

(c)

the Commissioner-General shall consider every application submitted under this paragraph and shall forward it to the Minister together with his recommendations thereon;

(d)

every charitable organization in respect of which remission is granted under this order shall—

(i) make quarterly returns to the Commissioner-General on all goods on which remission is granted;
(ii) at all reasonable times, make records of such goods available for examination by the Commissioner-General or by an officer authorized by him for that purpose and shall give the Commissioner-General or the authorized officer every facility necessary to inspect and audit such records.
(e)

the provisions of this Order shall apply to all remissions sought or granted under item 12(1)(c) of part A of the Third Schedule to the Act.

5.

Duty shall become payable if goods which are the subject of this Order are used or disposed of in a manner inconsistent with the purpose for which the remission was granted.

CUSTOMS AND EXCISE (DISPOSAL OF PROHIBITED GOODS) REGULATIONS, 1999
[L.N. 66/1999.]
1.

These Regulations may be cited as the Customs and Excise (Disposal of Prohibited Goods) Regulations, 1999 and shall come into operation on the 1st October, 1999.

2.

In these Regulations “prohibited goods” means—

(a)

any imported goods which are condemned by the Kenya Bureau of Standards established under the Standards Act (Cap. 496) as not meeting the standards published by that Bureau, or any other standards approved thereby;

(b)

any imported goods condemned by a public health officer in exercise of his functions under the Public Health Act (Cap. 242),

and regarding which the Kenya Bureau of Standards or the public health officer as the case may be, has forwarded a written notification to the customs.

3.

Any goods declared to be prohibited goods shall be re-exported or seized by the Customs and destroyed, at the expense of the owner.

CUSTOMS AND EXCISE (ANTI-DUMPING AND COUNTERVAILING MEASURES) REGULATIONS, 1999

ARRANGEMENT OF REGULATIONS

PART I

1.

Citation.

2.

Interpretation.

PART II – THE ADVISORY COMMITTEE

3.

Composition of Advisory Committee.

4.

Convening of Committee.

5.

Principle of operation.

6.

Application.

7.

Evidence and information in application.

8.

Notification of interested parties.

9.

Committee not to publish application.

10.

Withdrawal of application.

11.

Period of investigation.

12.

Confidentiality.

13.

Verification of information.

14.

Failure etc., to provide information.

15.

Determination of normal value.

16.

Normal value based on export price to a third country or on constructed value.

17.

Sales below cost.

18.

Comparison of export price and normal value adjustments.

19.

Currency conversion.

20.

Determination of dumping.

21.

Examination of the volume of dumped imports and their effects on production and prices.

22.

Threat of material injury.

23.

Negligible import volumes and determining dumping margin.

24.

Determination of injurious subsidies.

25.

Source of subsidy.

26.

Existence of a subsidy.

27.

Enterprise or industry specific subsidy.

28.

Illustration of specific subsidies.

29.

Non-countervailable subsidies granted to promote research.

30.

Causal link.

31.

Suspension of investigation.

32.

Provisional measures.

33.

Notice of imposition of provisional measures.

34.

Duration of application of provisional measures.

35.

Public notice of conclusion of an investigation.

36.

Suspension of duties.

37.

Retroactive collection of duties.

38.

Definitive duties.

39.

Duration of definitive duties.

40.

Review for change of circumstances.

41.

Appeals.

42.

International obligations.

SCHEDULE –

EXAMPLES OF EXPORT SUBSIDIES

CUSTOMS AND EXCISE (ANTI-DUMPING AND COUNTERVAILING MEASURES) REGULATIONS, 1999
[L.N. 111/1999, Corr. No. 65/1999, L.N. 92/2002.]
PART I
1.
Citation

These Regulations may be cited as the Customs and Excise (Anti-Dumping and Countervailing Measures) Regulations, 1999.

2.
Interpretation

In these Regulations—

“Committee” means the Advisory Committee appointed by the Minister under section 125 of the Act, for the purpose of investigating allegations of injurious dumping or subsidization of the goods exported to Kenya and reporting thereon to the Minister;

“Court” means the High Court of Kenya;

“definitive measure” means any measure the imposition of which leads to the conclusion of an investigation by the Committee;

“domestic investigated product” means goods or products produced in Kenya which are similar or identical to the investigated products;

“dumping margin” means the difference between the export price and the normal price;

“export price” means the price paid or payable for export into Kenya of the investigated product;

“government” means the government or any public body within the territory of the country of origin or export of the imported investigated product;

“initiation” means the procedural action by which the committee, upon instruction of the Minister, formally commences an investigation in accordance with these Regulations;

“interested parties” means—

(i)

the importers, exporters, of foreign producers of the investigated products and the trade and business associations the membership of which they constitute the majority;

(ii)

the governments of the exporting countries of origin;

(iii)

the producers of the domestic investigated products and the trade or business associations the membership of which they constitute a majority;

“investigated country” means the country of origin or export of the investigated product;

“investigated product” means the goods or products imported into Kenya which are the subject of an investigation by the Committee;

“normal value” means the price comparable to the export price, in the ordinary course of trade, for the investigated product when destined for consumption in the investigated country;

“provisional measure” means any measure, either in the form of a provisional duty, a security, a duty guaranteed by a cash deposit or a bond equal to the provisionally estimated margin of dumping or amount of subsidization.

PART II – THE ADVISORY COMMITTEE
3.
Composition of Advisory Committee
(1)

The Advisory Committee shall comprise ten members of—

(a)

one shall represent the Ministry for the time being responsible for matters relating to Finance;

(b)

one shall represent the Ministry for the time being responsible for matters relating to Trade and Industry;

(c)

one shall represent the Ministry for the time being responsible for Agriculture and Livestock Development;

(d)

one shall represent the Office of the Attorney-General;

(e)

one shall represent the Kenya Association of Manufacturers;

(f)

one shall represent the Kenya Revenue Authority;

(g)

one shall represent the Kenya Bureau of Standards;

(h)

one shall represent the Kenya National Chamber of Commerce and Industry; and

(i)

one shall represent the Federation of Kenya Employers.

(2)

The Minister shall designate one of the members under subparagraph (a) of paragraph (1) to be chairman of the Committee.

(3)

The Committee may co-opt into its membership such other persons as it may deem necessary for the performance of its functions under these Regulations.

(4)

A member of the Committee shall hold office for a term of three years but shall be eligible for reappointment for one further term of three years.

(5)

The members of the Committee shall be paid such remuneration, during the period of an investigation, as the Minister may approve.

4.
Convening of Committee
(1)

The Committee shall be convened by the Minister for purposes of conducting an investigation upon receipt by the Minister of a written application therefore in accordance with these Regulations.

(2)

The Committee shall stand adjourned upon the satisfactory conclusion of an investigation and after a decision on the measures to be taken thereon under these Regulations has been made.

5.
Principle of operation

The Committee shall recommend to the Minister the imposition of anti-dumping or countervailing measures on investigated products imported into Kenya when it determines, pursuant to an investigation initiated and conducted in accordance with these Regulations, that—

(a)

the imported investigated products are, through the effects of dumping or subsidization, causing injury or threat of material injury to a Kenyan industry; and

(b)

there exists a casual link between the injury to the Kenya industry and the dumping or subsidization of such goods.

6.
Application
(1)

An investigation under these Regulations shall be initiated by the Minister upon receipt by him of an application in writing made by or on behalf of the Kenyan Industry.

(2)

An application under these Regulations shall be deemed to be made by or on behalf of the Kenya industry if—

(a)

it is supported by Kenyan producers whose collective output of the investigated product constitutes more than fifty per cent of the total production; or

(b)

the Kenyan producers expressly supporting the application account for not less than twenty-five per cent of the total production of the investigated product produced by the Kenyan industry.

7.
Evidence and information in application

An application under these Regulations shall—

(a)

specify the identity of the applicant;

(b)

be supported by evidence of dumping or subsidization, injury and a causal link between the dumped or subsidized imports and the alleged injury; and

(c)

be accompanied by such information as is reasonably available to the applicant on—

(i) the volume and value of the Kenyan production of the domestic investigated product by the applicant;
(ii) the industry on behalf of which the application is made accompanied by a list of all known Kenyan producers or associations of producers of the domestic investigated product;
(iii) a description of the volume and value of the Kenyan production of the investigated product accounted for by such producers;
(iv) a complete description of the alleged dumped or subsidized imported investigated product, the name of the country of origin or export, the identity of each known exporter or foreign producer and a list of known importers of the investigated product;
(v) the normal value of the investigated product;
(vi) the prices at which the product is sold from the investigated country to a third country or countries or the constructed value;
(vii) the export prices or where appropriate, the prices at which the product shall be resold if first resold to an independent buyer in Kenya;
(viii) the growth of the volume of the allegedly dumped or subsidized imports, the effect of these imports on prices of the domestic investigated product in the Kenyan market, and the consequent impact of the imports on the Kenyan industry.
8.
Notification of interested parties
(1)

Where the Minister decides to initiate an investigation, the Committee shall notify all interested parties of the intended investigation:

Provided that where the interested party is the government of an exporting country, the Minister shall issue the notification.

(2)

A notification made under paragraph (1) shall indicate—

(a)

the name of the country or countries of export and, if different the country or countries of origin of the investigated products;

(b)

a complete description of the investigated product, including the technical characteristics and uses of the product;

(c)

the current tariff classification number of the investigated product;

(d)

a description of the alleged dumping and the basis for such allegations;

(e)

a summary of the factors on which the allegations of injury and causal link are based;

(f)

the address where information and comments on the application may be submitted;

(g)

the date of initiation of the investigation; and

(h)

the proposed programme of the investigation.

9.
Committee not to publish application

The Committee shall not make public any application made under these Regulations unless a decision to initiate an investigation has been made.

10.
Withdrawal of application
(1)

An applicant may, at any time, apply to the Committee for withdrawal of an application under regulation 6.

(2)

Where the application is withdrawn prior to initiation of an investigation, such application shall be deemed not to have been made in the first instance.

(3)

Where the application for withdrawal is made after initiation of the investigation, the Minister may, upon the advice of the Committee as to whether it is in the interest of Kenya to do so, either continue the investigation or terminate the same.

11.
Period of investigation
(1)

The investigation conducted by the Committee under these Regulations shall cover a period of one year immediately preceding the date of initiation of the investigations, and shall except in special circumstances, be concluded within a period of not more than eighteen months from the date of initiation thereof.

(2)

An investigation under these Regulations shall not interfere with the procedures of customs clearance of the investigated product.

(3)

After the conclusion of the investigation and adoption of measures under these Regulations, no additional penalties, other than those required for the application of those measures, shall be applied.

12.
Confidentiality

Where the committee is satisfied, upon good cause shown, that any information submitted to it in the course of an investigation should not be disclosed on the grounds that—

(i)

its disclosure would be of advantage to a competitor of the producer of the investigated product; or

(ii)

its disclosure would have an adverse effect upon the person supplying the information or upon such person’s informant; or

(iii)

it is provided on a confidential basis by parties to an investigation;

the committee shall treat such information as confidential during and after the investigation and shall not disclose it without the specific permission of the parties submitting it.

13.
Verification of information

The Committee may carry out such investigations as may be necessary to verify information provided to it or to obtain further details:

Provided that such investigations shall be carried out with the prior consent of the producers of the investigated products and the governments of the respective countries.

14.
Failure etc., to provide information
(1)

Where at any time during an investigation, any interested party refuses or fails to provide necessary information within the period of time prescribed by the Committee or otherwise impedes the investigation, the Committee may reach preliminary or final determination on the basis of the information available:

Provided that the Committee shall take due account of any difficulties experienced by interested parties, particularly small companies, in supplying the information required and may render any assistance or extend the prescribed period for the submission of such information as it may deem appropriate.

(2)

All interested parties and, in the case of countervailing duties investigations, all exporting countries, shall be entitled to appear and be heard before the Committee at all times during an investigation.

15.
Determination of normal value
(1)

The Committee shall establish the normal value of the investigated product on the basis of the price paid or payable, in the ordinary course of trade, in the country of export:

Provided that the provisions of paragraph (1) shall not apply in cases where the investigated products—

(a)

are not produced in the country of export;

(b)

are merely transhipped through the country of export from the country of origin; or

(c)

where there is no comparable price for them in the country of export.

(2)

Notwithstanding paragraph (1), sales made to related customers shall not be considered as made in the ordinary course of trade unless it is demonstrated to the Committee that such sales are made at arm’s length.

16.
Normal value based on export price to a third country or on constructed value
(1)

Where—

(a)

there are no sales of the investigated product in the ordinary course of trade in the domestic market of the exporting country; or

(b)

such sales do not permit a proper comparison because of the particular market situation or the low volume of the sales in the domestic market of the exporting country,

the Committee shall determine the normal value either—

(i) by comparison with a comparable price of the investigated product when exported to an appropriate third country where such price is representative; or
(ii) by comparison with the cost of production in the country of origin plus a reasonable amount for administrative, sale and any other costs for profits:

Provided that the Committee may apply another ratio where the evidence submitted by interested parties or otherwise available to it demonstrates that domestic sales at such lower ratio are nonetheless of sufficient magnitude to provide a proper comparison.

(2)

A price shall be considered as representative under this regulation when the sales of the investigated product in a third country constitute less than five per cent of the sales of the product into Kenya.

17.
Sales below cost
(1)

The Committee may treat sales of the investigated product in the domestic market of the exporting country or sales to a third country at prices below fixed and variable per unit costs of production plus sale, general and administrative costs as not being in the ordinary course of trade by reason of price and may disregard such sales in determining normal value where the Committee determines that such sales were made—

(a)

within a period of six months or more;

(b)

in substantial quantities; and

(c)

at prices which do not provide for the recovery of all costs within a reasonable period of time, in which case the Committee shall determine in each case what should be considered as a reasonable period of time for the recovery of all costs.

(2)

For the purposes of this regulation, sales below per unit cost shall be considered as made in substantial quantities where—

(a)

the weighted average selling price of the transactions under consideration for the determination of the normal value is below the weighted average unit costs; or

(b)

the volume of sales below per unit costs represents twenty per cent or more of the volume sold in transactions under consideration for the determination of the normal value.

18.
Comparison of export price and normal value adjustments
(1)

In making a comparison between export price and normal value, the Committee shall make due allowance in each case, on its merits, for differences which affect price comparability, including differences in—

(a)

conditions and terms of sale;

(b)

taxation;

(c)

levels of trade;

(d)

quantities;

(e)

physical characteristics; and

(f)

any other differences which may be demonstrated by interested parties to the satisfaction of the Committee as affecting price comparability.

(2)

The Committee shall, in cases where the export price is constructed on the basis of the price at which the imported products are first resold to an independent buyer, make allowances for costs, including duties and taxes, incurred between importation and resale, and for profits arising from importation and distribution.

19.
Currency conversion
(1)

Where the price comparison requires a conversion of currencies, the Committee shall make such conversion using the rate of exchange on the date of sale as available from the exporter or from commercial banks in the country of export.

(2)

The date of sale shall be the date on which the material terms of the sale, inter alia, the nature of the products, quantities and price are established, either in a contract, a purchase order, an order confirmation or an invoice.

20.
Determination of dumping

Where the Committee upon investigations conducted in accordance with these Regulations finds that the investigated product is introduced into the Kenyan market at a price below its normal value, the Committee shall conclude that such product is dumped into the Kenyan market.

21.
Examination of the volume of dumped imports and their effects on production and prices
(1)

The Committee shall, in ascertaining the volume of dumped imports, consider whether there has been an increase of the imports, either in absolute terms or relative to production or consumption of such imports.

(2)

In determining the effect of dumped imports on prices in the Kenyan market, the committee shall ascertain—

(a)

whether there has been a price undercutting of the dumped imports as compared to the price of the domestic investigated product;

(b)

whether the effect of such imports depresses prices to a significant degree or prevents to a significant degree, price increases which otherwise would have occurred, or adversely impacts on products of the investigated product in Kenya;

(c)

whether there is an actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utiliation of capacity;

(d)

the factors affecting prices of the investigated product in Kenya;

(e)

the magnitude of the margin of dumping; and

(f)

the actual and potential negative effects of cash flow, inventories, employment, wages growth and ability to raise capital on investment.

(3)

Kenya producers who are related to the exporters or importers of the investigated product or are themselves importers of the investigated product, shall not be considered as part of the Kenyan industry adversely affected by dumping for the purposes of the investigation.

(4)

In this regulation, the expression “related” has the meaning assigned to it under Appendix C of the Seventh Schedule to the Act.

22.
Threat of material injury
(1)

In determining the existence of a threat or material injury, the Committee shall consider—

(a)

whether there exists a rate of increase of dumped imports into the Kenyan market which indicates the likelihood of a substantial increase in importation;

(b)

whether there is a large volume of goods disposable at low prices, or an imminent, substantial increase in the capacity of the exporter, indicating the likelihood of increased dumped exports in Kenya’s market;

(c)

whether imports are entering the Kenyan market at prices that are likely to have a depressing effect on Kenyan prices and to increase demand for further imports; and

(d)

inventories of the investigated product.

(2)

Where the conclusion from a consideration of the factors enumerated in paragraph (1) in the positive, the Committee shall make a finding that the dumped imports present a threat of material injury to the Kenyan market and recommend the imposition of protective measures.

23.
Negligible import volumes and determining dumping margin

Where the Committee determines, on the basis of the application or of other information available to it, that—

(a)

imports of the investigated product from the country of export into Kenya represent less than three per cent of the imports of the investigated product into Kenya, unless the countries under investigation which individually account for less than three per cent of the import of the product into Kenya collectively account for more than seven per cent of the imports of that product;

(b)

the margin of dumping is less than two per cent, expressed as a per centage of the export price; or

(c)

the injury to the Kenyan industry is negligible; or

(d)

where the investigation relates to allegations of subsidization-

(i) that the amount of subsidy is less than one per cent ad valorem; or
(ii) that the volume of the subsidized imports represents less than three per cent of imports of the investigated product into Kenya, unless the countries under investigation which individually account for less than three per cent of the import of the product into Kenya collectively account for more than seven per cent of the imports of the investigated product into Kenya; or
(iii) that the injury suffered by the Kenyan industry is negligible;
(iv) that the volume of the subsidized imports represents less than four per cent of the total imports of the investigated product into Kenya, except where imports from developing countries whose individual share of total imports represents less than four per cent collectively account for more than nine per cent or more of the total imports of the investigated product into Kenya,

the committee shall not advise the Minister to initiate an investigation under these Regulations.

24.
Determination of injurious subsidies

In an investigation under these Regulations into allegations of subsidization, the Committee shall advise the Minister to impose countervailing measures where—

(a)

the allegations relate to imported investigated products which benefit from a subsidy;

(b)

the alleged subsidy is specific to an enterprise or an industry or a group of enterprises or industries, located within a designated geographical area of the granting government, and countervailable within the meaning of the Act; and

(c)

the imported investigated products are through the effect of subsidization, likely to cause injury to the Kenyan industry.

25.
Source of subsidy

A subsidy shall be subject to investigation by the committee where such subsidy is granted by the government of the country of origin of the investigated product or by the government of an intermediate country from which the product is exported to Kenya.

26.
Existence of a subsidy

In an investigation under these Regulations which relates to the determination of the existence of alleged subsidy, the Committee shall determine that such a subsidy exists where the subsidization measures complained of relate directly or indirectly to the manufacture, production, export or transport of the investigated product imported into Kenya.

27.
Enterprise or industry specific subsidy
(1)

A subsidy shall be deemed to be specific to an enterprise or industry or group of enterprises or industries within the jurisdiction of the government of the investigated country, where such government, or the legislation governing trade in that country, limits access to the subsidy to certain enterprises.

(2)

Notwithstanding paragraph (1), where—

(a)

the government of an investigated country; or

(b)

the legislation of such country which governs trade,

establishes objective criteria or conditions governing the eligibility for, and the amount of subsidy the Committee shall consider that the subsidy is not specific within the meaning of these Regulations, provided that eligibility therefor is open to all interested parties and that such criteria and the conditions thereof are strictly adhered to.

(3)

For the purposes of this regulation, “objective criteria” and “conditions” means the criteria or conditions provided for under the legislation referred to in paragraph (2) which are of uniform application and economic in nature.

(4)

If notwithstanding any appearance of non-specificity resulting from the application of the principles set out in paragraphs (1) and (2), hereof, there are reasons to believe that the subsidy may in fact be specific, the Committee may consider other factors in its investigation, including the following—

(a)

whether a subsidy programme is used solely or predominantly by a limited number of certain enterprises;

(b)

whether the government grants disproportionately large amount of subsidy to certain enterprises;

(c)

the manner in which discretion is exercised by the government in the decision whether to grant a subsidy;

(d)

the frequency with which applications for a subsidy are refused or approved and the reasons for such decisions; and

(e)

whether the subsidy is limited to certain enterprises located in a designated geographical region within the investigated country.

(5)

(a) Any determination of specificity by the Committee under the provisions of these Regulations, shall be clearly supported by documentary or other evidence.

(b) Notwithstanding the foregoing, the setting or change of generally applicable tax rates by the government of the investigated country shall not be deemed to be a specific subsidy.

28.
Illustration of specific subsidies

Notwithstanding any other provisions of these Regulations, the instances of subsidization set out in the Schedule shall be deemed to be specific subsidies against which the Committee shall recommend the imposition of countervailing measures.

29.
Non-countervailable subsidies granted to promote research

The Committee shall not recommend measures against subsidies which are granted for research activities by institutions of higher learning or research on a contract basis by firms or by the institutions themselves where such subsidies do not cover more than seventy per cent of the costs of the research.

30.
Causal link

The committee shall base its demonstration of causal relationship between the subsidized imported investigated products and the injury to the Kenyan industry on an examination of all relevant evidence before the committee, including—

(a)

the volume and prices of imported products identical to the investigated products which are not under investigation within the meaning of these Regulations;

(b)

the changes in demand or patterns of consumption of the investigated product;

(c)

the existence of trade restrictive practices and competition between the foreign and Kenyan producers of the investigated product; and

(d)

the development in technology and the export performance and productivity of the Kenyan industry.

31.
Suspension of investigation
(1)

The Committee may suspend an investigation without the imposition of any measures upon receipt of satisfactory voluntary undertakings—

(a)

from the exporter to revise its prices or to cease exports at dumped prices, provided that the new prices shall not be higher than is necessary to eliminate the dumping margin, and shall be less than the dumping margin if the Committee is satisfied that such lesser price increases would be adequate to remove injury to the Kenyan market; or

(b)

from the exporting country, to eliminate or limit the subsidy or take any other measures concerning its effects.

(2)

The Committee shall suspend an investigation during the implementation of an undertaking given under this regulation.

(3)

Where an exporter violates an undertaking under this regulation the committee may advise the Minister to impose provisional measures or definitive duties against such importer.

32.
Provisional measures
(1)

Where within a period of sixty days from the date of initiation of an investigation, the Committee makes a preliminary affirmative determination of dumping or subsidization and injury as a result thereof to the domestic market, the Committee may recommend to the Minister the imposition of such temporary measures as may be necessary to prevent further injury during the course of the investigation.

(2)

The provisional measures recommended under paragraph (1) shall take the form of a security by cash deposits or bond, not being greater than the preliminary determination.

33
Notice of imposition of provisional measures
(1)

Provisional measures shall take effect on the date of publication in the Gazette by the Committee of a notice imposing such measures.

(2)

The notice published under paragraph (1) shall be forwarded to the country or countries exporting the investigated products.

34.
Duration of application of provisional measures

Provisional measures shall be applied for a period not exceeding six months or for such longer period, not exceeding fifteen months, as the Minister may upon the advice of the Committee determine.

35.
Public notice of conclusion of an investigation
(1)

Upon conclusion of an investigation under these Regulations, the Committee shall cause to be published a notice to that effect in the Gazette and by advertisement in one or more daily newspapers of national circulation.

(2)

A notice published under paragraph (1) shall, due regard being paid to the requirement of the protection of confidential information, set fourth in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the committee, including the matters of fact and law which have led to arguments being accepted or rejected.

(3)

Where in any case the committee recommends the imposition of definitive duties, such decision shall take effect on the date of the publication of the notice under paragraph (1).

36.
Suspension of duties

The Committee may advise the Minister to suspend provisional or definitive duties where market conditions temporarily change, to an extent that injury would be unlikely to resume as a result of the suspension.

37.
Retroactive collection of duties
(1)

Where the Committee makes a final determination of injury or threat of injury and considers that the effect of the dumped or subsidized imports would, in the absence of the provisional measures imposed under these Regulations have led to a determination of injury, anti-dumping or countervailing duties may be levied retroactively for the period for which provisional measures, if any, have been applied.

(2)

Except as provided in paragraph (1), where the Committee makes a determination of threat of injury or material retardation, a definitive anti-dumping or countervailing duty may be imposed only from the date of such determination and any cash deposit made during the period of the application of provisional measures imposed under these Regulations shall be refunded.

(3)

Where the Committee makes a negative final determination, any bond secured for purposes of the provisional measures shall be refunded to the exporter, any anti-dumping duty collected prior to the date of application of the final determination shall be reimbursed together with legal interest rates accumulated from the date of such collection.

38.
Definitive duties
(1)

The Committee may advise the Minister to levy a definitive anti-dumping or countervailing duty on investigated products which were entered for consumption in Kenya not more than ninety days prior to the date of application of provisional measures under these Regulations.

(2)

No duties shall be levied retroactively pursuant to paragraph (1) on products entered for consumption prior to the date of initiation of an investigation.

39.
Duration of definitive duties
(1)

Any definitive anti-dumping or countervailing measure shall lapse after five years from the date of imposition.

(2)

The Committee shall, not later than ninety days prior to the date of expiry of the measure, publish a Gazette notice of such impending expiry.

(3)

Notwithstanding paragraphs (1) and (2), definitive measures may not expire if the committee determines, after a review made under regulation 40 that the expiry of the duty would be likely to lead to the continuation or recurrence of dumping or subsidization and injury to the Kenyan industry.

40.
Review for change of circumstances
(1)

The Committee may on its own motion review the need for continued imposition of anti-dumping or countervailing duties.

(2)

In conducting a review under this regulation, the Committee shall, upon request from any interested party, examine—

(a)

whether the continued imposition of the duty is necessary to offset dumping or subsidization; and

(b)

whether the injury would be likely to continue or recur if the duty were removed or varied.

(3)

where the Committee determines, upon review, that such duty is no longer required, such duty shall cease forthwith.

41.
Appeals

Any person aggrieved by a decision of the Committee under these Regulations may appeal to the High Court for a review of such decision.

42.
International obligations

These Regulations shall apply in conformity with the obligations of Kenya under the international agreements to which it is a party.

SCHEDULE

[Rule 28.]

EXAMPLES OF EXPORT SUBSIDIES
(a)

The provision by governments of direct subsidies to a firm or an industry contingent upon export performance.

(b)

Currency retention schemes or any similar practices which involve a bonus on exports.

(c)

Internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments.

(d)

The provision by governments or their agencies either directly or indirectly through government-mandated schemes, of imported or domestic products or services for use in the production of exported goods, on terms or conditions more favourable than for provision of similar or directly competitive products or services for use in the production of goods for domestic consumption, if (in the case of products) such terms or conditions are more favourable than those commercially available on world markets to their exporters.

(e)

The full or partial exception, remission, or deferral specifically related to exports, of direct taxes or social welfare charges paid or payable by industrial or commercial enterprises.

(f)

The allowance of special deductions directly related to exports or export performance, over and above those granted in respect of production for domestic consumption, in the calculation of the base on which taxes are charged.

(g)

The exemption or remission, in respect of the production and distribution of exported products, of indirect taxes in excess of those levied in respect of the production and distribution of like products when sold for domestic consumption.

(h)

The exemption, remission or deferral of prior-stag cumulative indirect taxes on goods on services used in the production of exported products in excess of the exemption, remission or deferral of like prior-stage cumulative taxes on goods or services used in the production of like products when sold for domestic consumption:

Provided , however, that prior-stage cumulative indirect taxes may be exempted, remitted or deferred on exported products even when not exempted, remitted or deferred on like products when sold for domestic consumption, if the prior-stage cumulative indirect taxes are levied on inputs that are consumed in the production of the exported product (making normal allowance for waste).

(i)

The remission or drawback of imports charges in excess of those levied on imported inputs that are consumed in production of the exported product (making normal allowance for waste); provided, however, that in particular cases a firm may use a quantity of home market inputs equal to, and having the same quality and characteristics as, the imported inputs as a substitute for them in order to benefit from this provision if the import and the corresponding export operations both occur within a reasonable time period, not to exceed two years.

(j)

The provision by governments of export credit guarantee or insurance programmes of insurance or guarantee programmes against increases in the cost of exported products or of exchange risk programmes, at premium rates which are inadequate to cover the long-term operating costs and losses of the programmes.

(k)

The grant by government of export credits at rates below those which they actually have to pay for a the funds so employed (or would have to pay if they borrowed on international capital markets in order to contain funds of the same maturity and other credit terms and denominated in the same currency at the export credit), or the payments by them of all or part of the costs incurred by exports or financial institutions in obtaining credits, in so far as they are used to secure a material advantage in the field of export credit terms:

Provided, however, that if a member of the World Trade Organization is a party to an international undertaking on official export credits to which at lease twelve original such members are parties as of the 1st January, 1979, (or a successor undertaking which has been adopted by such original members), or if in practice such a member applied the interest rates provisions of the relevant undertaking, an export credit practice which is in conformity with those provisions shall not be considered an export subsidy.

(l)

Any other charge on the public account constituting an export subsidy in the sense of Article XVI of GATT, 1994.

CUSTOMS AND EXCISE (APPEALS) RULES, 2000

ARRANGEMENT OF RULES

1.

Citation.

2.

Interpretation.

3.

Appointment of secretary.

4.

Form and time for lodging an appeal.

5.

Memorandum of appeal.

6.

Statement of facts of appellant.

7.

Service of memorandum.

8.

Statement of facts by Commissioner.

9.

Notice of place of hearing.

10.

Procedure of hearing of appeal.

11.

Tribunal to determine its own procedure in certain matters.

12.

Copies of documents admissible.

13.

Fees and costs.

CUSTOMS AND EXCISE (APPEALS) RULES, 2000
[L.N. 67/2000, L.N. 91/2010.]
1.
Citation

These Rules may be cited as the Customs and Excise (Appeals) Rules, 2000 and shall come into operation on the 1st September, 2000.

2.
Interpretation

In these Rules, unless the context otherwise requires—

“appeal” means an appeal to the Tribunal under this Act;

“appellant” means a person entering an appeal and includes the advocate or duly authorized agent of such person;

“chairman” means the chairman of the Tribunal appointed under section 127E(2);

“memorandum” means a memorandum of appeal presented under rule 4;

“secretary” means the secretary to the Tribunal appointed pursuant to rule 3.
[L.N. 91/2010, s. 2.]

3.
Appointment of secretary
(1)

The Commissioner shall appoint a person who may be an officer of the Customs and Excise Department, to be the secretary to the Tribunal.

(2)

The secretary shall, in matters relating to appeals to the Tribunal and the procedure therefor, comply with any general or special directions lawfully given by the chairman.

(3)

The secretary shall, by notice in the Gazette, notify the address for the presentation or service of documents for the purposes of these Rules and shall, in the same manner, notify any change in that address.

4.
Form and time for lodging an appeal

An appeal shall be entered by presentation of a memorandum of appeal, together with seven copies thereof, to the secretary within fourteen days after the date on which the appellant gives notice of appeal in writing to the Commissioner pursuant to section 127B or 127E; but where the Tribunal is satisfied that, owing to absence from his normal place of residence, sickness or other reasonable cause, the appellant was prevented from presenting a memorandum within that period, and that there has been no unreasonable delay on his part, the Tribunal may extend that period notwithstanding that the period has already expired.

[L.N. 91/2010, s. 3.]

5.
Memorandum of appeal

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

6.
Statement of facts of appellant

A memorandum shall be accompanied by—

(a)

a copy of the decision of the Commissioner disputed by the appellant;

(b)

a copy of the notice of appeal; and

(c)

a statement, signed by the appellant, setting out precisely all the facts on which the appeal is based and referring specifically to documentary or other evidence which it is proposed to adduce at the hearing of the appeal, to which shall be annexed a copy of each document or extract from a document upon which the appellant proposes to rely as evidence at the hearing of the appeal.

7.
Service of memorandum

Within forty-eight hours after the presentation of a memorandum to the secretary, a copy of the statement of facts of the appellant and the documents annexed thereto shall be served by the appellant upon the Commissioner.

8.
Statement of facts by Commissioner
(1)

The Commissioner shall, if he does not accept any of the facts of the appellant, within twenty-one days after service thereof upon him under rule 7, file with the secretary a statement of facts together with seven copies thereof, and the provisions of rule 6 shall mutatis mutandis apply to the statement of facts.

(2)

At the time of filing a statement of facts pursuant to paragraph (1), the Commissioner shall serve a copy thereof, together with copies of any documents annexed thereto, upon the appellant.

(3)

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

9.
Notice of place of hearing
(1)

As soon as may be reasonably practicable after receipt by him of the memorandum, the secretary shall notify the chairman thereof.

(2)

The chairman shall, after the Commissioner has filed a statement of facts or has notified the secretary that he does not intend to do so, fix a time, date and place for a meeting of the Tribunal for the purpose of hearing the appeal and the secretary shall cause notice thereof to be served on the appellant and the Commissioner.

(3)

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

(4)

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.

10.
Procedure of hearing of appeal

At the hearing of an appeal, the following procedure shall be observed—

(a)

the Commissioner shall be entitled to be present or be represented;

(b)

the appellant shall state the grounds of his appeal, and may support it by any relevant evidence, but save with the consent of the Tribunal and upon such terms as it may determine, the appellant may not at the hearing rely on a ground other than a ground stated in the memorandum and may not adduce evidence of facts or documents unless those facts have been referred to in, and copies thereof 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 may make submissions, supported by relevant evidence and paragraph (b) shall mutatis mutandis apply to evidence of facts and documents to be adduced by the Commissioner;

(d)

the appellant shall be entitled to reply but may not raise a new issue or argument;

(e)

the chairman or a member of the Tribunal may at any stage of the hearing ask any question of the appellant or the Commissioner or a witness examined at the hearing, which 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;

(g)

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;

(h)

before the Tribunal considers its decision, the parties to the appeal shall withdraw from the meeting and the Tribunal shall deliberate on the issue according to law and reach its decision thereon.

(i)

the decision of the Tribunal shall be determined by a majority of the members present and voting at the meeting and in the case of an equality of votes the chairman shall have a casting vote in addition to his deliberative vote;

(j)

minutes of the meeting shall be kept and the decision of the Tribunal recorded therein.

11.
Tribunal to determine its own procedure in certain matters

In matters of procedure not governed by these rules or the Act, the Tribunal may determine its own procedure.

12.
Copies of documents admissible

Save where the Tribunal in any particular case otherwise directs or where a party to the appeal objects, copies of documents shall be admissible in evidence but the Tribunal may at any time direct that the original shall be produced notwithstanding that a copy has already been admitted in evidence.

13.
Fees and costs

No fees shall be payable and a Tribunal shall not make any order as to costs on an appeal save where the grounds of appeal are held by the Tribunal to be frivolous, in which case the Tribunal may order the appellant to pay costs to the Commissioner of a sum not exceeding five thousand shillings.

CUSTOMS AND EXCISE (REFUND OF DUTY) (PRIVATE POWER PRODUCERS) REGULATIONS, 2000
[L.N. 69/2000.]
1.

These Regulations may be cited as the Customs and Excise (Refund of Duty) (Private Power Producers) Regulations, 2000.

2.

In these Regulations, unless the context otherwise requires—

“Permanent Secretary” means the Permanent Secretary in the Ministry for the time being responsible for matters relating to energy

“private power producer” means a person who generates electricity—

(a)

for supply to the national grid; or

(b)

for his own use, using a generator of not less than 100 KVA,

approved by the Commissioner on the recommendation of the Permanent Secretary.

3.

(1) A private power producer seeking a refund of duty pursuant to section 146 of the Act shall apply in that behalf to the Commissioner through the Permanent Secretary.

(2)

An application under paragraph (1) shall be in the Form set out in the Schedule and shall be—

(a)

accompanied by a certificate of the supply of power in respect of which the refund is sought, issued by the Kenya Power and Lighting Company Limited; and

(b)

submitted within twelve months from the date of the certificate referred to in subparagraph (a).

4.

The Commissioner shall consider all applications submitted under these Regulations and shall, if satisfied that the refund claimed is in accordance with the provisions of the Act, make such refund as appropriate.

SCHEDULE

CUSTOMS AND EXCISE DEPARTMENT

Application for Refund of Duty Paid on Fuel Expended in Generation of Electrical Power

I/We .............................................................................. P.I.N .................................................. hereby apply for refund of duty in the amount of shillings ............. in respect of fuel expended in self-supply of electricity/supply to the national grid, between ........................ and ....................

PARTICULARS OF CLAIM

CUSTOMS AND EXCISE (EXPORTS) REGULATIONS, 2000

ARRANGEMENT OF REGULATIONS

1.

Citation.

2.

Interpretation.

3.

Rules of origin.

4.

Processes not conferring origin.

5.

Treatment of mixtures.

6.

Treatment of parts.

7.

8.

Treatment costs.

9.

Requirement for visa.

10.

Application form.

11.

Validation of visa and certificate of origin.

12.

Verification of double certificates on visas.

13.

Procedure for notification of visit.

14.

Time of verification visit.

15.

Generally accepted accounting principle to be applied.

16.

Exporter to be furnished with rest of verification.

17.

Advance ruling.

18.

Revocation of advanced ruling.

19.

Appeal.

20.

Commissioner to forward returns.

21.

Offences.

SCHEDULES

FIRST SCHEDULE –

REPUBLIC OF KENYA

SECOND SCHEDULE –

VISA

CUSTOMS AND EXCISE (EXPORTS) REGULATIONS, 2000
[L.N. 136/2000.]
1.
Citation

These Regulations may be cited as the Customs and Excise (Exports) Regulations, 2000.

2.
Interpretation

In these Regulations, unless the context otherwise requires—

“country of origin” means the country from which any goods are obtained;

“country of importation” means the country to which goods are being exported;

“textiles” means textiles and textile products of cotton, wool, silk, man-made fibre and vegetable fibre other than cotton;

“Trade and Development Act, 2000” means the Trade and Development Act enacted by the Congress of the United States of America and duly signed into law on the 18th May, 2000;

“transhipment” means carriage coastwise or the transit of goods through Kenya from a third country to the country of importation;

“visa” means a stamp by the Government of Kenya in respect of any goods for export originating from Kenya which—

(a)

authorizes the shipment of the goods;

(b)

bears a description of the goods; and

(c)

certifies the country of origin thereof.

3.
Rules of origin
(1)

Goods shall be deemed to originate from Kenya if they are wholly obtained from Kenya or have undergone a substantial transformation in Kenya.

(2)

Goods shall be deemed to be wholly obtained in Kenya if they are—

(a)

harvested;

(b)

gathered;

(c)

collected;

(d)

mined;

(e)

fished;

(f)

reared;

(g)

hatched;

(h)

hunted; or

(i)

captured,

in Kenya.

(3)

Goods shall be deemed to have undergone a substantial transformation in Kenya if they have undergone a process of manufacturing in Kenya—

(a)

which has transformed the constituent material in form, value, description, use, name or appearance; or

(b)

which has led to a change in the tariff heading; or

(c)

which has transformed the value of such goods to the extent that the constituent material not originating from Kenya is worth not more than sixty-five per cent of the ex-factory price of the finished goods; or

(d)

using materials originating in Kenya or originating from any country with which Kenya has preferential trade agreement;

(e)

using materials comprising of textiles and apparel articles claiming preferential tariff treatment under section 112 of the Trade and Development Act of 2000.

4.
Processes not conferring origin

The following processes shall not be deemed as conferring origin to any goods—

(a)

packing, unpacking, bottling, placing in flasks, bags cases or boxes and all other simple packing operations or separation of materials;

(b)

(i) simple mixing of ingredients;
(ii) simple assembly of components and parts to constitute a complete part; or
(iii) a combination of (i) and (ii);
(c)

operations to ensure preservation of goods;

(d)

bending and cutting;

(e)

drying, enzyme washing, acid washing, roasting; or

(f)

dyeing, bleaching, polishing or screen printing.

5.
Treatment of mixtures

A mixture shall be deemed as originating in Kenya if the constituent materials which give the mixture its essential character originate in Kenya.

6.
Treatment of parts

In determining the origin of goods assembled in Kenya, parts thereof shall be deemed to originate in Kenya if they have been manufactured in Kenya.

7.

Notwithstanding the foregoing, for purposes of determining the origin of goods eligible for benefits under any preferential trade agreements, the rules of origin of the country on importation shall apply.

8.
Treatment costs

In determining the ex-factory price of any goods, the following costs shall not be deemed to be costs of manufacturing—

(a)

marketing and advertising costs;

(b)

the costs of financing the inventory;

(c)

storage costs;

(d)

packing costs; or

(e)

any other costs which does not contribute to a change in the goods.

9.
Requirement for visa

Where, in respect of any goods originating in Kenya, there is in the country of importation a requirement visa, the exporter of such goods shall apply for such visa in accordance with paragraph 10.

10.
Application form
(1)

An application for a visa under regulation 9 shall be in the form specified in the First Schedule and shall be supported by the shipping documents in respect of the goods.

(2)

On verification of the documents submitted under subparagraph (1), the customs shall issue the visa on the original invoice.

(3)

A visa shall be in the form set out in the Second Schedule and shall be—

(a)

of such grouping as may from time to time be specified by the Minister by notice in the Gazette;

(b)

accompanied by a certificate of exportation at the port of exit; and

(c)

endorsed by the Director of External Trade.

11.
Validation of visa and certificate of origin

Where there exists any doubt as to the origin of goods being exported, the country of importation may—

(a)

verify the certificates of export by way of written questionnaires to the exporter or producer in Kenya;

(b)

return a certified copy of the visa to the customs for verification and validation; or

(c)

subject to any existing reciprocal arrangements with the country of importation, visit the premises of an exporter or producer to verify production records and observe the facilities used in the production of goods.

12.
Verification of double certificates on visas

For the purposes of conducting a verification visit, the country of importation shall, through its relevant body, deliver a written notification of its intention to conduct the visit to the Commissioner indicating the number of factories to be visited.

13.
Procedure for notification of visit

The notification referred to in Regulation 12 above shall include—

(a)

the identity of the authorized officials from the importing country performing the verification visit;

(b)

the estimated number of the exporters or producers whose premises are to be visited;

(c)

the approximate date and proposed places for the proposed verification.

14.
Time of verification visit
(1)

The proposed verification visit shall take place within such period, not exceeding fourteen days, from the date of receipt of the notification thereof or as may be agreed between the commissioner and the body issuing the notification.

(2)

The exporter or producer whose premises are to be visited may designate a person of his choice to be an observer during the verification visit conducted under these Regulations.

15.
Generally accepted accounting principle to be applied

Verification of the regional value content requirements in respect of the goods shall be done in accordance with the generally accepted accounting principles applicable in Kenya.

16.
Exporter to be furnished with rest of verification

Any person conducting a verification visit shall provide the Commissioner with the results of such visit in writing together with the reasons for the findings and the commissioner may forward the same to the exporter or producer to whose premises the results relate.

17.
Advance ruling
(1)

An exporter or producer of goods may request the commissioner for a verification and advance ruling in respect of the goods.

(2)

Any person requesting for and advance ruling shall provide the Commissioner with all information that the commissioner may require for determination of the origin of the goods.

(3)

The Commissioner shall after obtaining all necessary information under subparagraph (2), issue the ruling and shall provide to the person requesting such ruling a full explanation of the reasons thereof.

18.
Revocation of advanced ruling

The commissioner may revoke an advance ruling—

(a)

if the ruling is based on an error—

(i) of fact; or
(ii) in the tariff classification of the goods or material which are the subject of the ruling; or
(iii) in the application of a value content requirement; or
(b)

if the ruling is at variance with a preferential trade agreement between Kenya and the importing country; or

(c)

to conform with judicial decision or change in any written law.

19.
Appeal

A person against whom an unfavourable ruling has been given may appeal—

(a)

to the commissioner for review of the decision; or

(b)

to any competent court of law.

20.
Commissioner to forward returns

Subject to the existence of a preferential trade agreement between Kenya and any other country, the Commissioner may forward a monthly return of all visas issued and goods exported to the customs administration of that other country.

21.
Offences
(1)

A person who on a matter relating to a visa—

(a)

fails to furnish information when required to do so; or

(b)

furnishes information which is incorrect in any material particular; or

(c)

forges or in any way alters the visa; or

(d)

fraudulently declares a false origin of goods; or

(e)

uses a counterfeit documents in support of an application thereof; or

(f)

fails to keep proper records relating to production of goods, including information relating to—

(i) materials used in production;
(ii) the place of production;
(iii) the number and identification of the types of machinery used in production;
(iv) the number of workers employed in production,

shall be guilty of an offence.

(2)

Any person found guilty of an offence under paragraph (1) shall be liable to a fine not exceeding one million shillings or imprisonment for a period not exceeding three years, or both.

(3)

The Court may in addition to any penalty imposed under paragraph (2) order that the person found guilty under that paragraph be not allowed to export goods under any preferential trade agreement.

(4)

Any goods the subject of an offence under paragraph (1) shall be liable to forfeiture.

FIRST SCHEDULE

[Regulation 10(1).]

REPUBLIC OF KENYA

APPLICATION FOR VISA

SECOND SCHEDULE

[Regulation 10(3).]

VISA

NOTES:

1.

The Visa shall be circular, in blue ink.

2.

One stamp only shall appear on the front of the original invoice.

3.

The Visa Number shall be in a standard nine character format as follows:

First character represents the Visa Grouping;

Second and third characters represent Kenya’s ISO Code;

Fourth through ninth characters represent the Visa serial number.

CUSTOMS AND EXCISE (RESTRICTED IMPORTS) (COMMERCIAL TRAILERS) ORDER, 2002

ARRANGEMENT OF RULES

1.

Citation.

2.

Interpretation.

3.

Prohibition as to importation of commercial trailers.

4.

Commissioner to be notified of failure of consignment.

CUSTOMS AND EXCISE (RESTRICTED IMPORTS) (COMMERCIAL TRAILERS) ORDER, 2002
[L.N. 128/2002, L.N. 376/2002.]
1.
Citation

This Order may be cited as the Customs and Excise (Restricted Imports) (Commercial Trailers) Order, 2002.

2.
Interpretation

In this Order, “an authorized assembler” means a person who has been Gazetted as such by the Minister.

3.
Prohibition as to importation of commercial trailers

The importation of commercial trailers in a completely knocked down (ckd) condition is prohibited except where the—

(a)

an importer is an authorized assembler;

(b)

completely knocked down kits comprise of—

(i) axles;
(ii) suspensions;
(iii) air braking kits;
(iv) rims;
(v) landing gears;
(vi) turntables; and
(c)

authorized assembler is licensed by the Commissioner and his assembly takes place in a customs bonded warehouse.

[L.N. 376/2002, s. 2.]

4.
Commissioner to be notified of failure of consignment

Every authorized assembler shall notify the Commissioner of any commercial trailer unit or component which, having been consigned and imported under of a bill of lading on which that authorized assembler is a notified party, has not been duly delivered to his bonded warehouse.

CUSTOMS AND EXCISE (DUTY REMISSION) REGULATIONS, 2002

ARRANGEMENT OF REGULATIONS

1.

Citation.

2.

Interpretation.

3.

Remission of duty on imports for use in the production of exports.

4.

Duty free or specified goods.

5.

Limitations on application of remission.

6.

Application for remission.

7.

Approval of application for remission on imports for use in the production of exports.

8.

Approval of application for remission on imports for use in the production of exports, duty free, or specified goods.

9.

Frequency of making application.

10.

Register of applicants.

11.

Undertaking by applicant.

12.

Exclusion of other exemptions.

13.

By-products.

14.

Scrap or waste.

15.

Entry and bond forms for imports.

16.

Transfer and bond forms for goods from an indirect exporter.

17.

Cancellation of security bond.

18.

Period for processing application.

19.

Maintenance of books and records.

20.

Examination of books and records.

21.

Other records.

22.

Powers of inspection.

23.

Submission of reconciliation declaration.

24.

Supporting documents for reconciliation declaration.

25.

Transfer of goods to approved bonded factory.

26.

Renewal of remission.

27.

Gazettement of manufacturers and producers.

28.

Penalty.

29.

Revocation of approval.

CUSTOMS AND EXCISE (DUTY REMISSION) REGULATIONS, 2002
[L.N. 129/2002, L.N. 46/2003, L.N. 66/2003, L.N. 138/2003, L.N. 99/2004.]
1.
Citation

These Regulations may be cited as the Customs and Excise (Duty Remission) Regulations, 2002.

2.
Interpretation

In these Regulations unless the context otherwise requires—

“duty” Deleted by L.N. 66/2003

gazetted approved supplier” means a manufacturer or producer who imports goods for use in the production of goods for supply to an indirect exporter;

gazetted exporter” means a manufacturer or producer who imports goods for use in the production of goods for subsequent exportation;

gazetted indirect exporter” means a manufacturer or producer who imports goods for supply to another manufacturer or producer for use in the production of goods for export;

gazetted indirect manufacturer” means a manufacturer who imports materials for use in the manufacture of goods which are in turn supplied to another manufacturer or producer for use in the manufacture of goods under these Regulations;

“indirect export” means the goods supplied by an indirect exporter to a manufacturer or a producer for use in the production of exports under these Regulations;

“manufacture” includes any process by which a commodity is finally produced including assembling, packing, bottling, repacking, mixing, blending, grinding, cutting, bending, twisting, joining, or other similar activity;

“Tax Remission for Exports Office” means the office, in the Ministry for the time being responsible for matters relating to Finance, charged with the responsibility of the administration of these Regulations.

3.
Remission of duty on imports for use in the production of exports
(1)

The Minister may grant remission of duty in respect of—

(a)

goods imported for use in, or to be attached to goods manufactured or produced in Kenya for subsequent exportation; and

(b)

imported goods other than fuels, lubricants, plant, machinery or equipment, for direct consumption or to be expended in the manufacture or production in Kenya of goods for subsequent exportation.

(2)

For the purposes of this regulation, “fuels” include motor spirits (gasoline) and automotive diesel but excludes coal, coke, furnace oil, petroleum gases and kerosene.

4.
Duty free or specified goods

The Minister may grant remission of duty in respect of—

(a)

goods imported for use in, or to be attached to goods manufactured or produced in Kenya; and

(b)

imported goods other than fuel, lubricants, plant machinery or equipment for direct consumption, or to be expended in the manufacture or production in Kenya of goods:

Provided that the goods produced or manufactured are—

(i) duty free under the First Schedule to the Act or are specified, but excluding fuels;
(ii) goods, including capital equipment and vehicles, supplied to an official aid funded project where the goods, if imported, would have qualified for full remission of duty under section 138 of the Act; or
(iii) goods for official use by the Kenya Armed Forces;
(iv) goods manufactured for use in production of goods under this regulation; or
(v) goods for use in production of sanitary towels. [L.N. 99/2004.]
5.
Limitations on application of remission

The remission of duty referred to in regulations 3 and 4 shall be restricted to—

(a)

the manufacturer or producer of goods for export referred to in regulation 3;

(b)

an indirect exporter approved under regulation 7(c);

(c)

the manufacturer or producer of goods referred to in regulation 4;

(d)

seventy-five per centum of duty payable on industrial sugar used under regulation 4 (tariff number 1701.99.90);

(e)

eighty-five per centum of duty payable in the case of a manufacturer who uses paper and paperboard in making packaging materials for liquids for sale in the domestic market; or

(f)

the manufacturer or producer who uses crude palm olein or stearin in producing edible oils and raw materials for the manufacture of laundry toilet soaps and detergents for sale in the domestic market.

6.
Application for remission

An application for remission of duty under these Regulations shall be submitted for consideration and approval by the Tax Remission for Exports Office.

7.
Approval of application for remission on imports for use in the production of exports

Subject to regulation 5, an application for remission of duty under regulation 3 may be allowed by the Tax Remission for Export Office in the following cases—

(a)

on receipt of an application on Form C.56 supported by—

(i) a bona fide export order or export contract for specified export goods or a letter of credit;
(ii) a detailed production plans including production processes or formula, and specifying the types and quantities of goods to be imported; and
(iii) a list of the goods to be imported including description, tariff classification, quantity, value and the estimated amount of duty to be remitted; or
(b)

where an exporter has an established record of exports of specified goods over a period of at least one year, on receipt of application on Form C.56 for the imports required to produce exports of value up to the value exported on average over a six month period where the application is supported by—

(i) export entries documenting the value of exports of specified goods over the immediately preceding year, or such longer immediately preceding period not exceeding three years;
(ii) detailed production plans including production processes or formulae, and specifying the types and quantities of goods to be imported; and
(iii) a list of the goods or materials to be imported including description, tariff classification, quantity, value and estimated amount of duty to be remitted; or
(c)

on receipt of an application of Form C.56 from an indirect exporter jointly with an application or applications from an exporter or exporters under paragraph (a) or (b), where the application of the indirect exporters is supported by—

(i) bona fide order or orders from an exporter or exporters applying under paragraph (a) or (b);
(ii) detailed production plans including production processes or formulae, and specifying the types and quantities of goods to be imported; and
(iii) a list of the goods or materials to be imported as indirect imports including description, tariff classification, quantity, value and estimated amount of duty to be remitted,

and a copy of the approved application shall be returned to the applicant duly certified by the Tax Remission for Exports Office.

8.
Approval of application for remission on imports for use in the production of exports, duty free, or specified goods

Subject to regulation 5, an application for remission of duty under regulation 3 or 4 may be allowed by the Tax Remission for Exports Office in the following cases—

(a)

on receipt of an application on Form C.56 supported by—

(i) a bona fide export order or contract for the purchase of the goods;
(ii) a detailed production plan including production processes or formulae and specifying the types and quantities of goods to be imported; and
(iii) a list of the goods to be imported including description, tariff classification, quantity, value and the estimated amount of duty to be remitted; or
(b)

where a manufacturer has an established record of production and sales of the goods specified under regulation 4(a) or 4(b) over a period of at least one year, on receipt of application on Form C.60 for the imports required to produce the goods of value up to the value of sales on average over a six month period where the application is supported by—

(i) sales invoices documenting the value of sales of specified goods over the immediately preceding year, or such longer immediately preceding period not exceeding three years;
(ii) detailed production plans including production processes or formulae, and specifying the types and quantities of goods to be imported; and
(iii) a list of the goods or materials to be imported including description, tariff classification, quantity, value and estimated amount of duty to be remitted,

and a copy of the approved application shall be returned to the applicant duly certified by the Tax Remission for Exports Office.

9.
Frequency of making application

Applications under regulation 7(b) or 8(b) can only be made once every six months except where evidence can be provided that exports or sales have or will reasonably be expected to exceed the average exports or sale value for a six month period.

10.
Register of applicants

The Tax Remission for Exports Office shall maintain a register of applicants for duty remission under these Regulations which shall contain the name, postal address and location of the business premises, and any other information that the Tax Remission for Exports Office may require.

11.
Undertaking by applicant

Remission of duty on goods shall be conditional upon the applicant undertaking in Form C.56 or C.60 to—

(a)

pay duty on any imported goods that have not been—

(i) used in the production of approved exports or indirect exports where remission is granted under regulation 3;
(ii) used in the production of approved goods where remission is granted under regulation 4;
(iii) re-exported;
(iv) transferred to an approved bonded factory as provided for under regulation 25; or
(v) transferred to the next production period as provided for in regulation 26;
(b)

complete and submit to the Tax Remission for Exports Office a reconciliation declaration as required under regulation 23;

(c)

keep and maintain books and records in accordance with regulation 19; and

(d)

provide security in the form and manner referred to in regulation 15.

12.
Exclusion of other exemptions

Goods manufactured from goods imported under these Regulations shall not be eligible for duty remission under any other written law.

13.
By-products

Where a by-product results from a process of manufacture or production utilising goods subject to duty remission under these Regulations, duty shall be payable on such imported goods in the same proportion that the value of the by-product bears to the total value of all goods manufactured or produced from such imported goods unless the by-products are exported.

14.
Scrap or waste

Where any scrap or waste of commercial value results from a process of manufacture or production utilizing goods subject to duty remission under these Regulations, duty shall be payable on the prevailing value of the scrap or waste in accordance with section 127 or 127B, as the case may be, and the First Schedule, unless the scrap or waste is exported, or destroyed under supervision of the proper officer.

15.
Entry and bond forms for imports

Goods imported under these Regulations shall—

(a)

be entered on Form C.63 with a declaration of “REMISSION UNDER APPROVED MANUFACTURE, Legal Notice Number of “ endorsed on each copy in block letters; and

(b)

have a security bond posted in an amount determined by the Commissioner, but not exceeding the duty that would otherwise be payable, and executed on the Form CB. 13.

16.
Transfer and bond forms for goods from an indirect exporter
(1)

Goods purchased from an indirect exporter under these Regulations shall—

(a)

be transferred from an indirect exporter to the approved manufacturer or producer for use in the production of exports using Form C.58; and

(b)

have a security bond posted by the recipient of the transferred goods in an amount determined by the Commissioner but not exceeding the duty that would otherwise be payable on the indirect imports, and executed on the Form CB. 13.

(2)

Goods transferred from a gazetted approved supplier to an indirect exporter shall—

(a)

be entered in Form C.58; and

(b)

have a bond security executed on Form CB.13.

17.
Cancellation of security bond

The security bond shall be cancelled only—

(a)

after the reconciliation declaration has been verified and approved by the Commissioner;

(b)

any unused imported goods have been re-exported or transferred to an approved bonded factory; or

(c)

the duty has been paid.

18.
Period for processing application

The Tax Remission for Exports Officer shall within seven working days of the receipt of a satisfactorily completed and supported application as required under regulation 7 or 8 give approval or advise the applicant of a rejection stating the reasons for such rejection.

19.
Maintenance of books and records

Every person who has been granted a remission from duty shall keep and maintain at his place of business detailed books and records relating to the purchase, importation, stocks of goods, packing, sales, shipping and exportation of all goods.

20.
Examination of books and records

The books and records referred to in regulation 19 shall be kept for five years from the time of application for remission and shall be made available, upon request, to the proper officer, including an officer of the Tax Remission for Exports Office, for examination and verification at all reasonable times.

21.
Other records

Separate books and records from those maintained for domestic goods shall be maintained for stocks of imported goods, indirect imports and indirect exports.

22.
Powers of inspection

A proper officer including an officer from the Tax Remission for Exports Office shall have powers to inspect and verify the books and records, inspect the production facilities of any remission applicant and examine any goods or materials within the production facility or any storage place related thereto.

23.
Submission of reconciliation declaration

A reconciliation declaration in Form C.57 in respect of the duty remission granted shall be submitted to the Commissioner in three copies within a nine month period from the time of approval of the remission application, or, for applications approved under regulation 7(a) or 8(a) on completion of the order or contract, whichever is the earlier.

24.
Supporting documents for reconciliation declaration

The declaration referred to in regulation 23 shall be submitted together with—

(a)