Point in Time
Act No: No. 35 of 2016
Act Title: FISHERIES MANAGEMENT AND DEVELOPMENT

AN ACT of Parliament to provide for the conservation, management and development of fisheries and other aquatic resources to enhance the livelihood of communities dependent on fishing and to establish the

[ Date of commencement: 23rd September, 2016. ]
[ Date of assent: 3rd September, 2016. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Citation and commencement

This Act may be cited as the Fisheries Management and Development Act, 2016 and shall come into force on the fourteenth day after publication in the Gazette.

2.
Interpretation

In this Act, unless the context otherwise requires—

"access agreement or arrangement" means any agreement or arrangement entered into pursuant to section 128;

"Act" includes regulations or other forms of subsidiary legislation made hereunder;

"agent" means any person or unit appointed by the Board or Director-General to execute designated functions under this Act, or such other agent as may be appointed in accordance with section 17 (1) (c);

"aircraft" means any propelled or remotely controlled airborne device capable of sustained movement through the atmosphere and includes helicopters and monitoring devices;

"artisanal fisheries" means small scale traditional fisheries that may be carried out for subsistence or commercial purposes in which the owner is directly involved in the day-to-day running of the enterprise and relatively small amounts of capital are used;

"artisanal fishing vessel" means any local fishing vessel, canoe or un-decked vessel with a length overall of not more than ten meters, which is motorised or not motorised by an outboard or inboard engine not exceeding forty horsepower, or powered by sails or paddles, but does not include decked or undecked semi-industrial fishing vessels or vessels used for recreational fishing;

"Authority" means the Fish Marketing Authority established by section 198;

"aquaculture" means the cultivation, propagation or farming of aquatic organisms, including fish, molluscs, crustaceans and aquatic plants whether from eggs, spawn, spat, seed or other means or by rearing fish lawfully taken from the wild or lawfully imported into Kenya, or by other similar process;

"aquaculture establishment" means any area, enclosure, premise or structure set up or used on land or in water for the purposes of aquaculture, and includes any cage or raft or other system;

"aquaculture resources" means live fish and marine plants cultivated under aquaculture;

"authorized officer" includes a fisheries officer, a disciplines officer of the service and any person appointed by the Board under section 18;

"automatic location communicator" means a device approved by the Director which is placed on a fishing vessel and is designed to transmit, whether independently or in conjunction with another device or devices, information or data concerning position, fishing and such other activities of the vessel as may be required and includes a mobile transceiver unit;

"barter" means trade of fish and fish products by two or more persons without use of money;

"beach management unit" means an organization of fishers, fish traders, boat owners, fish processors and other beach stakeholders who traditionally depend on fisheries activities for their livelihoods;

"Board" means the Fisheries Service Board established by section 10;

"Board of Directors" means the Board of Directors of the Fish Marketing Authority established under section 201;

"buy" includes—

(a)

barter;

(b)

purchase;

(c)

attempt to barter;

(d)

attempt to purchase;

(e)

receive on account or consignment;

(f)

receive in order to send, forward or deliver for sale;

(g)

broker a sale;

(h)

purchase or barter for future goods or for any consideration of value; and

(i)

purchase or barter as an agent for another person;

"buyer" means any person who buys;

"Cabinet Secretary" means Cabinet Secretary for the time being responsible for fisheries;

"carrier vessel" means a vessel that carries fish that have been harvested by another vessel but does not engage in fishing itself;

"commercial aquaculture" includes any aquaculture operation resulting or intending or appearing to result in the sale or trade of any fish which is a product of such aquaculture operation, including semi-commercial aquaculture;

"Council" means the Kenya Fisheries Council established under section 6;

"crew member" means a worker who is part of a team working on a fishing vessel, towards a common function, whether paid or unpaid, other than the master, a pilot or shore-based persons carrying out work aboard a fishing vessel and fisheries observers;

"dealing in fish" includes collecting, transporting, storing, transshipping, buying or selling fish or fish products for purposes of trade;

"designated Fishing Port" means fishing port established under section 50(1)b;

"Director-General" means the person appointed as such under section 15;

"export" in relation to fish or fish products means to—

(a)

send or take out of Kenya; or

(b)

carry or transport anything out of the country;

"export facility" means any building or vessel or area in which fish and fish products is handled, prepared and stored for export purposes, including the surroundings under the control of the same management;

"farming" in relation to any fish means the breeding, cultivating and rearing of any such fish or the cultivating of any such vegetation, as the case may be;

"fish" means any marine or aquatic animal or plant, living or not and processed or not, and any of their parts and includes any shell, coral, reptile and marine mammal;

"fisher" means every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers;

"fish landing station" means a point on the shore of any waters or coastline of which the Director-General has by notice in the gazette designated as a point to land fish;

"fish processing" means any process that adds value to or preserves fish and includes the cutting up, dismembering, cleaning, sorting, icing, freezing, drying, chilling, salting, gutting, smoking, canning or any other action taken to alter the shape, appearance or form of fish from that in which the fish is when first taken from its natural habitat;

"fish processing establishment" means any place other than a licensed fishing vessel where fish are canned, dried, gutted, salted, iced, chilled, frozen, smoked or otherwise processed or stored but does not include a restaurant, eating place, hotel, or place where fish is prepared for immediate retail sale or consumption;

"fish product" means any product or part thereof (including oil) obtained by fish processing, and intended for use as human food, animal feed or raw material ingredient in the manufacture of other commodities of commercial or ornamental value;

"fisheries officer" means the Director-General and any employee of the Service described in the first schedule;

"fishery" means—

(a)

one or more stocks of fish, or parts thereof existing in a delineated area, which can be treated as a unit for the purposes of conservation, development and management, taking into account geographical, scientific, technical, customary, recreational, economic and other relevant characteristics; or

(b)

any fishing for such stocks;

"fishery resources" or "fisheries resources" means any fishery or stock, species or habitat of fish or part thereof;

"fishing" means—

(a)

searching for or taking of fish;

(b)

the attempted searching for or taking of fish;

(c)

engaging in any other activity which can reasonably be expected to result in the locating or taking of fish;

(d)

placing, searching for or recovering any fish aggregating device or associated equipment including radio beacons;

(e)

any operation on Kenya fishery water or on the high seas in support of or in preparation for any activity described in paragraphs (a), (b), (c) or (d);

(f)

use of an aircraft which is related to any activity described in paragraphs (a), (b), (c) or (d), except for flights in emergencies involving the health or safety of a crew member or the safety of a vessel, but does not include aquaculture or the transportation of fish;

"fishing gear" means any equipment, implement, structure, construction, installation or other article that can be used in the act of fishing, whether or not it is used in connection with a vessel, including any fishing net, line, float, cork, buoy, basket, light, winch, boat or aircraft;

"fishing operations" includes fishing, supply of provisions to fishing vessels, and the handling and processing of fish up to the time it is first landed;

"fishing port" means a place on a lake shore or sea front where fishing vessels may resort for shelter, servicing, loading and off-loading of fish and fishing equipment;

"fishing related activity" means any activity in support of, or in preparation for, fishing including the—

(a)

transshipping of fish to or from any vessel;

(b)

landing, packaging, processing, handling or transporting of fish that have not been previously landed at port ;

(c)

provision of personnel, fuel, gear and other supplies at sea or performing other activities in support of fishing operations;

(d)

exporting fish or fish products from the country;and

(e)

attempting or preparing to do any of the above;

"fishing vessel" means any vessel used for, equipped to be used for, or of a type that is normally used for, fishing or fishing related activities;

"flag State" in relation to a vessel that is not a Kenya fishing vessel means the State in which the vessel is registered, provided it is registered in only one State;

"foreign fishing vessel" means any fishing vessel other than a Kenya fishing vessel and includes any support vessel, notwithstanding that the vessel may be registered or licensed or required to be registered or licensed in Kenya pursuant to this Act or under the Merchant Shipping Act and Kenya Maritime Act;

"genetic resource" includes germplasm of plants, animals or other organisms containing useful characters of actual or potential value;

"Government" means the Government of Kenya;

"high seas" means the waters beyond areas under the jurisdiction of any State including the territorial sea, exclusive economic zone or other zone of national jurisdiction;

"illegal fishing" includes—

(a)

activities conducted by national or foreign vessels in waters under the jurisdiction of a state without the permission of that state, or in contravention of its laws and regulations;

(b)

activities conducted by vessels flying the flag of states that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which those states are bound or relevant provisions of international law;and

(c)

activities carried out in violation of national laws or international laws or international obligations, including those undertaken by co-operating states to a relevant regional fisheries management organization;

"import" means the bringing into Kenya or Kenya Fishery waters of any fish or fish product and aquatic flora from any place outside Kenya;

"industrial fishing vessel"means a decked fishing vessel with an overall length of twenty meters or greater and with an inboard engine;

"international agreement" includes any treaty, convention, or other legally binding instrument, including bilateral, multilateral regional agreements or arrangements that Kenya is a party pursuant to the Treaty Making and Ratification Act, 2013, Cap 371;

"international conservation and management measures" means measures which are notified in the Gazette in accordance with section 31;

"Kenya fishery waters" includes all maritime zones declared in the Maritime Zones Act, Cap. 250 internal waters, Lakes, riverine systems and any other waters including intertidal, inland and riverine over which Kenya exercises or claims jurisdiction;

"Kenya fishing vessel" means a fishing vessel which is registered under the Merchant Shipping Act, and does not hold any other registration, or is wholly owned and crewed by residents of Kenya or by other persons gazetted by the Service as persons who traditionally fish in Kenya fishery waters, and which meets such other conditions as may be prescribed;

"Kenya Marine and Fisheries Research Institute" means the institute established under the Science and Technology Act;

"landing" means bringing any fish or fish product to the harbour, port or beach from within or outside the Kenya fishery waters and offloading;

"licensing period" means the period of time during which any licence or authorization issued in accordance with this Act is valid;

"locally based foreign fishing vessel" means any foreign fishing vessel which—

(a)

is based in and fully controlled or operated from Kenya;

(b)

fishes exclusively in the Kenya fishery waters; and

(c)

lands all of its catch or a substantial part of its catch in Kenya;

"master" means a person in command or in charge or apparently in command of the vessel, aircraft or a vehicle, but does not include a pilot on board a vessel solely for the purpose of navigation;

"management" means an integrated process of information gathering, analysis, planning, consultation, decision making, allocation of resources, formulation and implementation of rules and regulations which govern fisheries activities in order to ensure the continued production of the resources and accomplishment of other fisheries objectives;

"operator" means any person responsible for the operations of, directs or controls a vessel, including the owner, charterer and master of the vessel;

"person" means any natural person or business enterprise and includes a corporation, partnership, cooperative, association and any foreign government, its subdivisions or agents;

"pollution" shall have the meaning assigned to it under the Environmental Management and Co-ordination Act, 1999;

"recreational fishing" means non-commercial fishing by an individual for leisure or relaxation;

"sell" includes—

(a)

any method of disposition for consideration of anything which has value or which can be exchanged for cash or barter;

(b)

disposition to an agent for sale on consignment;

(c)

offering or attempting to dispose of for value or receiving or having in possession for disposal for value or displaying for disposal for value, or sending or delivering for disposal for value or causing or permitting to be sending or delivering for disposal for value, or causing or permitting to be disposed for value, offered or displayed for disposal for value;and

(d)

disposition by way of raffle, lottery, or other game of chance under the Betting Control and Licensing Act; and "sell" and "sold "have a corresponding meaning;

"semi-industrial fishing vessel" includes—

(a)

a decked fishing vessel with an overall length of not less than ten meters and not more than fifty GRT and not powered by an inboard engine; and

(b)

an undecked fishing vessel with an overall length of not less than ten meters and not more than twenty meters with less than fifty GRT and powered by engines of at least forty horse power;

"subsistence fishing" means local or non-commercial fisheries, oriented not primarily for recreation but for the procurement of fish for consumption by the fishers, their families and community;

"support vessel" means a vessel carrying out operations in connection with and support of a fishing vessel including transport, supply;

"surveillance" means checking and ensuring compliance with control measures imposed under this Act in fishing or fishing related activities;

"Service" means the Kenya Fisheries Service established under section 7;

"subsistence fishing" means local or non-commercial fisheries, oriented not primarily for recreation but for the procurement of fish for consumption by the fishers, their families and community;

"support vessel" means any vessel carrying out operations in connection with and support of a fishing vessel including transport, supply or fishing;

"surveillance" means checking and ensuring compliance with control measures imposed under this Act in fishing and fishing related activities;

"test fishing operation" means any fishing operation undertaken over a limited period of time with the approval of the Director–General for the purpose of testing the feasibility of commercial fishing operations with a view to establishing fishery operations, and not for commercial purposes;

"territorial waters" shall have the meaning assigned to it under the Maritime Zones Act, Cap. 371 and includes the territorial sea;

"transshipment" means transferring fish or fish products to or from any vessel, whether or not the fish or fish products have first been taken on board the vessel from which the fish is passed;

"unregulated fishing"includes—

(a)

activities conducted by vessels without nationality, or by those flying the flag state not party to that organization, or by a fishing identity in a manner that is not consistent with the conservation and management measure;and

(b)

activities carried in areas or fish stocks in relation to which there are no applicable conservation or management measures in where the fishing activity is conducted;

"unreported fishing" includes activities which the relevant authority has not been notified;

"vehicle" means any car, truck, van, bus, trailer or other powered land conveyance;

"vessel monitoring system" includes a satellite based reporting system capable of monitoring the position and activities of fishing vessels.

3.
Jurisdiction and sovereign rights of Kenya
(1)

Kenya shall have full jurisdiction and sovereign rights over fisheries resources in accordance with the Maritime Zones Act, and such other maritime zones or areas which may be claimed from time to time, and full sovereignty and jurisdiction over fisheries resources in all public waters within its territory, including to the outer limit of the territorial sea, notwithstanding any right, including ownership or occupation, that any person may possess in relation to the water, seabed, riverbed or subsoil.

(2)

In accordance with subsection (1), the sovereign rights of management and control over such fisheries resources are vested in Kenya.

(3)

Ownership of all information required to be reported, notified or otherwise given pursuant to this Act, including all information generated by an automatic location communicator or similar device that is part of a vessel monitoring system, is vested in the Government.

4.
Application

This Act, unless the contrary intention appears, shall apply to—

(a)

all Kenya fishery waters and areas over which Kenya exercises jurisdiction or sovereign rights;

(b)

fishing and fishing related activities, utilization of fish and genetic material derived from fish and any other activity falling within the scope of this Act;

(c)

persons, vessels, vehicles, aircraft, export facilities or other craft or place engaged in or otherwise connected with any activity falling within the scope of this Act;

(d)

persons (including non-citizens) and vessels (including foreign vessels) in and in relation to the Kenya fishery waters;

(e)

persons (including non-citizens) and vessels (including foreign vessels) in areas beyond national jurisdiction—

(i) following hot pursuit initiated in the Kenya fishery waters and conducted in accordance with international law; or
(ii) as required pursuant to this Act or international conservation and management measures; or
(iii) as permitted by international law or any international agreement; and
(f)

all Kenya fishing vessels and all persons on them or dealing with them or having any relevant relationship to them or to persons on them, in and in relation to any area within or beyond national jurisdiction in so far as it does not conflict with the jurisdiction of another State.

5.
Objective and guiding principles
(1)

The objective of this Act is to protect, manage, use and develop the aquatic resources in a manner which is consistent with ecologically sustainable development, to uplift the living standards of the fishing communities and to introduce fishing to traditionally non-fishing communities and to enhance food security.

(2)

The implementation of this Act shall be guided by the following principles—

(a)

long-term sustainable use, conservation and management of fisheries resources and habitat, and adoption and implementation of management measures in such a manner as to ensure that the fisheries resources and habitat are not overexploited, threatened or endangered;

(b)

allocation and access to the fisheries resources in a manner that achieves optimum utilization, equitable distribution and long- term sustainable development of fisheries resources to achieve economic growth, human resource development, employment creation, a sound ecological balance and generational equity;

(c)

conservation and protection of fisheries habitats;

(d)

ensuring the effective application of the ecosystem approach to fisheries management;

(e)

ensuring that biodiversity and genetic diversity in the marine environment is maintained and enhanced;

(f)

fostering recreational and ornamental fishing, aquaculture and commercial fishing activities for the benefit of the country;

(g)

encouraging the participation of users of the fisheries resources, and the general community, in the management of fisheries;

(h)

ensuring that management measures are based on the best scientific evidence available and are designed to maintain or restore stocks capable of producing sustainable yield, as qualified by relevant environmental and economic factors including fishing patterns, the interdependence of stocks and generally recommended international standards;

(i)

application of the precautionary approach to the management and development of the fisheries at no less standard than is set out in any international agreement;

(j)

managing fisheries resources in an efficient and cost effective manner, including setting targets for the recovery of management costs;

(k)

collection and, as appropriate sharing, in a timely manner complete and accurate data and information concerning fishing activities and fisheries;

(l)

implementation and enforcement of conservation and management measures through effective monitoring, control and surveillance;

(m)

promotion of sustainable aquaculture in appropriate zones as a viable option to contribute to food security replenishing natural habitats through diversification from capture fisheries and wealth generation;

(n)

minimization of wastage, bycatch, discards, catch by lost or abandoned gear, pollution and the promotion of development and use of selective, environmentally safe and cost-effective fishing gear and techniques;

(o)

prevention or elimination of over-fishing and excess capacity and managing levels of fishing efforts so they do not exceed levels commensurate with sustainable use of fishery resources;

(p)

effective implementation of international agreements and relevant international laws in conformity with the Treaty Making and

Ratification Act, 2013;

(q)

ensuring effective cooperation with coastal States, fishing States and entities and competent organisations; and

(r)

ensuring that the livelihood of fishers is enhanced.

(3)

All of the principles in subsection (1) should be applied to the greatest extent possible, and the principle set out in subparagraph (2)(a) shall be given priority at all times.

PART II – THE KENYA FISHERIES ADVISORY COUNCIL
6.
Establishment of the Kenya Fisheries Council
(1)

There is hereby established an advisory body to be known as the Kenya Fisheries Advisory Council ("the Council"), which shall consist of—

(a)

the Cabinet Secretaries responsible for fisheries;

(b)

the Cabinet Secretary responsible for interior and co-ordination of national government;

(c)

Cabinet Secretary responsible for transport and infrastructure;

(d)

the Cabinet Secretary responsible for national treasury;

(e)

the Cabinet Secretary responsible for foreign affairs and international trade;

(f)

a representative from a university or research institution with expertise in fisheries and who shall be nominated by the University council;

(g)

a representative from the consumer federation nominated by the national consumer federation;

(h)

a designate from the Council of Governors with expertise in fisheries who shall be nominated by the Council of governors; and

(i)

a representative of fisheries nominated by a national umbrella of body fisheries.

(2)

The function of the Council shall be to review and advise the national Government on—

(a)

policies in relation to the co-ordination of fisheries management in relation to the aquatic environment and human dimensions;

(b)

the allocation and access to fisheries resources;

(c)

intergovernmental agreements and arrangements related to fisheries;

(d)

research, education, capacity development in fisheries and the management of fisheries resources;

(e)

management plans and resources for the development of the fisheries sector; and

(f)

any other matters connected with this or any other related Act.

(3)

The chairperson of the Council shall be appointed by the President from persons nominated under clause (6)(2) not being a Cabinet Secretary, upon recommendation by the Cabinet Secretary responsible for fisheries.

(4)

The Vice Chairperson of the Council shall be elected by members of the Council at their first sitting, provided that the chair and vice chairperson shall not be of the same gender.

(5)

In making appointments of the members to the Council, the Cabinet Secretary shall observe regional, gender, age, disability and ethnic balance.

(6)

Each Cabinet Secretary represented on the Council in accordance with subsection (1) may designate an alternate who is knowledgeable and experienced in issues relevant to fisheries;

(7)

The Council may establish such working groups and committees as it deems necessary and as are agreed by the Cabinet Secretary.

(8)

The Ministry responsible for fisheries shall provide secretariat services for the Council.

PART III – THE KENYA FISHERIES SERVICE
7.
Establishment and status
(1)

There is hereby established a Service to be known as the Kenya Fisheries Service, which shall be responsible for the conservation, management and development of Kenya's fisheries resources in accordance with this Act.

(2)

The Service shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—

(a)

suing and being sued;

(b)

taking, purchasing, charging and disposing of movable and immovable property, and doing any other act or thing which may or be done by a body corporate.

(3)

The common seal of the Service shall not be affixed to any instrument except pursuant to a resolution of the Board and the affixing of the seal shall be attested by two members of the Board.

8.
Headquarters

The Service shall have its headquarters in Nairobi and may establish such offices in the counties as may be appropriate to ensure that its services are provided at the county level.

9.
Functions of Service

The functions of the Service shall be to—

(a)

ensure the appropriate conservation development of standards on management, sustainable use, development and protection of the fisheries resources;

(b)

formulate and monitor the implementation of policies regarding the conservation, management and utilization of all fisheries resources within the scope of this Act;

(c)

develop standards for the management of all fisheries and aquaculture activities and fishing related activities within the scope of this Act;

(d)

develop guidelines for the preparation of fisheries specific management plans for the Kenya fishery waters;

(e)

provide education to create public awareness and support for fisheries conservation, management, development and sustainable use;

(f)

set and meet goals for fisheries conservation, management, development and sustainable use;

(g)

in consultation with the Kenya Marine and Fisheries Research Institute, approve and co-ordinate research activities in relation to matters falling within the scope of this Act;

(h)

collect and analyse data in relation to resources and activities falling with the scope of this Act;

(i)

identify manpower requirements and recruit manpower at all levels for the Service;

(j)

liaise as appropriate with agencies and persons, including stakeholders, industry, government agencies, regional and international organisations and experts, whether local or foreign, on matters falling within the scope of this Act;

(k)

act on behalf of the government, subject to the Treaty Making and Ratification Act, 2013 in relation to any domestic or international agreement relating to fishing, fishing related activities or any matter falling within the scope of this Act, to which Kenya is or may become a party;

(l)

administer and co-ordinate international protocols, conventions and treaties regarding fisheries in all its aspects in consultation with the Cabinet Secretary pursuant to the Treaty Making and Ratification Act, 2013, Cap 242;

(m)

subject to the Public Health Act and the Food, Drugs and Substance Act, Cap 254 control and regulate fish safety and quality;

(n)

raise revenue through levies, fees, investments and other means in accordance with this Act and the Constitution, including solicitation by public appeal or otherwise, and accept and receive subscriptions, donations, devices and bequests, whether of movable or immovable property and whether absolute or unconditional for the general or special purposes of the Service or subject to any trust;

(o)

undertake the development of appropriate fisheries infrastructure, that relates to its mandate under this Act and the Constitution;

(p)

facilitate investment in commercial fisheries, in collaboration with relevant agencies, persons or bodies, including Government departments;

(q)

promote development and introduction of appropriate technologies in aquaculture production, processing and preservation in collaboration with relevant agencies, county governments and stakeholders;

(r)

identify and promote construction of any works deemed necessary for the sustainable development and economic utilization of fisheries resources;

(s)

in collaboration with county government and the Fish Marketing Authority established under section 201, identify opportunities and promote all aspects of fisheries marketing;

(t)

arrange and enter into joint ventures or any other forms of investment arrangement for purposes of performing any of its functions;

(u)

co-ordinate fish quality assurance and operations of the marine and coastal fisheries, aquaculture and inland and riverine fisheries;

(v)

coordinate and or undertake monitoring, control and surveillance of all activities within the scope of this Act; and

(w)

perform such other duties and functions consistent with the provisions of this Act as may be necessary to carry out the objectives and provisions of this Act.

10.
Establishment, functions, powers and duties of the Board of Directors
(1)

There shall be a board of directors of the Service, which shall—

(a)

provide general control over and be accountable to the Cabinet Secretary for the exercise of the functions and powers of the Service;

(b)

advise the Cabinet Secretary on all matters pertaining to the conservation, management standards, development, and sustainable use of fisheries resources;

(c)

provide recommendations to the Cabinet Secretary for overall policy in matters within the scope of this Act;

(d)

collaborate with the Fish Marketing Authority established under section 204 and other agencies to ensure that trade in fish is carried out in accordance with the provision of this Act;

(e)

approve the annual budget and financial plan of the Service and otherwise provide oversight for all financial matters;

(f)

endorse the annual report of the Service required under section 25 and transmit it through the Cabinet Secretary to Parliament;

(g)

establish an open, competitive, transparent and objective selection process, and required qualifications for, the Director-General, and as appropriate for other persons employed by the Service;

(h)

establish an open, competitive employment policies, a transparent and objective selection process and general terms and conditions for employees of the Service;

(i)

provide policy guidance over the exercise of the functions and powers of the Service; and

(j)

perform any other function which the Cabinet Secretary may by notice in the Gazette prescribe.

(2)

The staff of the service shall be as provided under the First Schedule.

(3)

Each member of the Board, when exercising powers or performing duties under this Act shall—

(a)

act in good faith and in what the member believes to be the best interests of the Service;

(b)

comply with the provisions of this Act;

(c)

exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances taking into account, among other things, to—

(i) the nature of the Service;
(ii) the nature of the decision; and
(iii) the position of member and the nature of the responsibilities undertaken by him or her; and
(d)

rely on reports, statements and financial data and other information officially provided to the Board by the Director-General and other government entities.

11.
Membership of the Board
(1)

The members of the Board shall consist of—

(a)

a chairperson appointed by the President from among the members appointed under paragraph (c);

(b)

the Principal Secretaries of the Ministries for the time being responsible for—

(i) fisheries;
(ii) defence;
(iii) finance;
(c)

five members, not being public officers, openly appointed by the Cabinet Secretary for their long-term knowledge and experience in the conservation, management, development and sustainable use of fisheries resources;

(d)

all members must meet the requirements of Chapter Six of the Constitution.

(2)

The Director-General shall be the secretary to the Board.

(3)

The members of the Board shall at their first meeting after appointment, elect a deputy chairperson from amongst their numbers provided that the chairperson and deputy chairperson shall not be of the same gender.

(4)

The Cabinet Secretary shall in making appointments under subsections (1)(c) have regard to the principle of gender parity, age, regional and ethnic balance and shall, to the extent possible, ensure an equitable representation from different sub-sectors of the fisheries sector.

(5)

A person shall be qualified to be appointed under subsection (1) (c) if, in addition to the requirements of that subsection, such person holds a university degree or its equivalent in—

(a)

natural resource or environmental management, development or science;

(b)

fisheries studies, including fisheries governance, management, development or science;

(c)

marine affairs;

(d)

port management;

(e)

aquatic science; or

(f)

any other matters related to the functions of the Board.

(6)

The term of all members described in subsection (1) and (2) who are not ex officio members, and persons appointed pursuant to subsection (5) shall be three years, and they shall be eligible for re-appointment for a total of two terms.

12.
Termination of appointment as a member of the Board
(1)

The office of member of the Board, other than an ex officio member, shall become vacant if the member—

(a)

resigns from office by notice in writing addressed to the Chairperson, who shall transmit such resignation to the Cabinet Secretary;

(b)

is removed from office by the Cabinet Secretary if the member—

(i) has been absent from three consecutive meetings of the Board without notifying the Chairperson;
(ii) is adjudged bankrupt or enters into a composition scheme or arrangement with his creditors;
(iii) is convicted of an offence involving false statements, fraud or dishonesty;
(iv) is convicted of a criminal offence;
(v) is unable to, by reason of mental or physical infirmity to discharge functions as a member of the Board;
(vi) is found to have acted in a manner prejudicial to the aims and objectives of this Act; or
(vii) fails to comply with the provisions of this Act relating to disclosure.
(2)

Vacancies occurring pursuant to this section or for any other reason prior to the expiration of a member's term, shall—

(a)

in the case of an ex officio member be filled by appointment of another nominee by the Cabinet Secretary of the relevant Ministry or the governing body of the relevant parent organization;

(b)

in the case of a member other than an ex officio member be filled in the same manner as vacancies arising from the expiration of that member's term

Provided that such appointments shall only be effective for the remainder of any applicable unexpired term of the departing member.

(3)

The exercise of a power or the performance of a function of the Board is not invalidated by reason of a vacancy in the membership of the Board.

13.
Disclosure of interest
(1)

A member of the Board shall declare his or her interest in any matter falling within the functions of the Board in which the member of the Board knows or ought to have reasonably known that an interest exists as described in subsection (5).

(2)

A member who has an interest shall, after the relevant facts have come to his or her knowledge, immediately disclose the nature of his or her interest to Board members through the Chair.

(3)

The disclosure given under subsection (2) shall be recorded in the minutes of the Board meeting at which the disclosure is made, or the first Board meeting which follows the disclosure, and the member shall—

(a)

not take part, after the disclosure, in any matter under consideration by the Board which relates to the interest, including any deliberation or decision of the Board;

(b)

be disregarded for the purpose of constituting a quorum of the Board for any deliberation or decision referred to in subsection (a).

(4)

A person has an interest in a matter where that person—

(a)

could benefit directly or indirectly from a decision on a matter over which he or she has influence or control, or if a matter over which that member has influence or control relates in any way to —

(i) a business or property the member directly or indirectly owns or controls;
(ii) a business or property owned or controlled, directly or indirectly, by a family member;
(iii) a business or property in which the member has a beneficial interest of any kind, whether through a trust or otherwise;
(b)

is party to, or will or may derive a material financial benefit from the matter;

(c)

has a material financial interest in another party to the matter;

(d)

is a family member of a person who will or may derive financial benefit from the matter; or

(e)

is otherwise directly or indirectly materially interested in the transaction.

(5)

In this section, the following terms shall have the meanings stated—

"benefit" shall mean gain or advantage of any kind, and shall include financial gain, property, service, or improvement of condition;

"business" shall mean businesses of any kind whether situated in the Republic of Kenya or elsewhere and whether incorporated or not;

"family member" shall mean a parent, brother, sister, spouse, cousin, aunt, uncle, nephew, niece or child including a person who is adopted legally or for whom care was given by the member such that there exists a relationship in the nature of parent and child, and shall also mean a spouse of any person referred to in this definition and their children and any other member of a person's immediate family;

"interest" shall mean either direct ownership of, indirect ownership of, shares in financial benefit from, remuneration, fees or commissions from, or complete or partial control of, such property or business;

"member" or "member of the Board" means any member of the Board of Directors;

"property" shall mean real or personal property of every description whether situated in the Republic of Kenya or elsewhere.

14.
Meetings of the Board
(1)

The Board shall meet not less than four times in every financial year, and not more than four months shall elapse between the date of one meeting and the date of the next meeting and the date for each meeting shall be confirmed not less than five working days in advance of such meeting.

(2)

Special meetings shall be convened upon a written request by the Chairperson of the Board or not less than four members, and in accordance with such other procedures as the Board may agree in by-laws:

Provided that at least five working days' notice of the meeting shall be given to every member.

(3)

At a meeting of the Board—

(a)

five members, one of whom shall be the Chairperson or his or her nominee, constitute a quorum;

(b)

the Chairperson, or in his or her absence the Deputy Chairperson, shall preside, and if both the Chairperson and the Deputy Chairperson are absent, the members present shall appoint, from among their own number, a Chairperson for that meeting;

(c)

matters arising shall be decided by a majority of the votes of the members present and voting; and

(d)

the person presiding has a deliberative, and in the event of an equality of votes on any matter, also a casting vote.

(4)

The Chairperson may nominate an employee of the Service to attend any Board meeting and present any matter or introduce any item of business, but shall not be entitled to vote or be counted towards a quorum.

(5)

The Board shall cause minutes of its meetings to be recorded and kept.

(6)

The Board may, in its discretion at any of its meetings—

(a)

invite a person or persons to attend; or

(b)

receive or hear submissions or information from any person.

(7)

The Board shall establish a consultative process with the stakeholders in order that information and views on relevant fisheries management may be exchanged as appropriate, and the Board shall take into account any information or views received from stakeholders through such process when considering management measures relevant to those stakeholders.

(8)

The Board may from time to time, establish such advisory sub-committees as it considers necessary in relation to its functions and powers for the purpose of making reports and recommendations to the Board and sub-committees shall be comprised of Board members.

(9)

Any decision of a sub-committee established by the Board under sub-section (8) shall be subject to ratification by a fully constituted Board meeting.

(10)

Subject to this Act, the procedures of the Board are as determined by the Board.

15.
Appointment of the Director-General
(1)

There shall be a Director-General of the Service who shall be competitively recruited by the Board openly and transparently, and on such terms and conditions as may be specified in the instrument of appointment.

(2)

A person shall be qualified to be appointed under subsection (1) if such person holds an advanced degree from a recognized university in—

(a)

natural resource or environmental management, or science;

(b)

fisheries studies, including fisheries governance, management, development or science;

(c)

aquatic science; or

(d)

any other related field, and has at least ten years' experience in a senior management position in a public institution.

16.
Functions of the Director-General
(1)

The Director-General shall be the chief executive officer of the Service and shall be responsible to the Board for the day-to-day management of the affairs of the Service and shall, on behalf of the Board and subject to this Act, have the general superintendence of all matters within the scope of this Act.

(2)

Without prejudice to the generality of the foregoing, the Director-General shall—

(a)

be responsible for carrying out the functions, managing the affairs and exercising the powers of the Service;

(b)

ensure efficient and effective administration of the Service, including through the preparation of annual work plans and development strategies for the Service;

(c)

recommend to the Board the recruitment of competent human resources for the Service;

(d)

collaborate with the Fish Marketing Authority established under section 204 and other agencies to identify marketing and investment opportunities for the fisheries sector;

(e)

upon direction by the Board, enter into agreements on behalf of the Service for the management, conservation, use and exploitation of fisheries resources; and

(f)

perform such other functions as the Board may in consultation with the Cabinet Secretary direct from time to time.

(3)

The Director-General may, in writing, delegate the exercise of any of the powers and functions conferred on him by this Act to the Director or any other staff member of the Service as may be approved by the Board, except this power of delegation.

17.
Other staff of the Service
(1)

The Board may, on such terms and conditions as it deems fit, appoint—

(a)

such officers of the Service as are specified in Part A of the First; and

(b)

such disciplined officers of the unit established under section 20 as are specified in Part B of the First Schedule; and

(c)

such other employees, agents, servants or consultants of the Service, as may be necessary for the performance of the functions of the Service.

(2)

Every person appointed under subsection (1) (b) shall take and subscribe to the oath of allegiance set out in Part C of the First Schedule.

(3)

The provisions Part D of the First Schedule have effect with respect to the Service.

(4)

The Board shall within a reasonable time provide for a staff superannuation scheme to determine service for the employees of the Service.

18.
Authorized officers
(1)

The Cabinet Secretary may, in consultation with the Council and the Director-General and with the approval of the Board, by notice in the Gazette appoint a police officer of or above the rank of an inspector, or an officer with the Kenya Navy or other armed force to be an authorised officer for purposes of this Act.

(2)

A person appointed under subsection (1), shall perform such functions as the Board may specify.

19.
Honorary fisheries officers
(1)

The Director-General may, with the approval of the Board, by notice in the Gazette appoint suitable persons to be honorary fisheries officers for the purpose of assisting the Service in carrying into effect the provisions of this Act.

(2)

An honorary fisheries officer shall—

(a)

hold office subject to such conditions as the Director may prescribe, for a period of five years; and

(b)

have such functions as may be prescribed by rules made under this Act.

20.
Establishment of Monitoring, Control and Surveillance Unit
(1)

There is hereby established within the Service Monitoring, Control and Surveillance Unit (MCS) hereinafter referred to as "the MCS Unit".

(2)

The MCS Unit shall have the functions of—

(a)

monitoring, control and surveillance, including enforcement, and compliance with this Act and any other legislation relating to activities falling within the scope of this Act; and

(b)

cooperating and coordinating with, and performing relevant functions within the broader system of monitoring, control and surveillance at bilateral, sub-regional, regional and international levels to implement agreements or measures which are binding upon Kenya or which the Cabinet Secretary, as appropriate in consultation with the Cabinet Secretaries responsible for internal security and defence, directs subject to the Treaty Making and Ratification Act, 2013.

(3)

The MCS Unit shall include the officers specified in Part B of the First Schedule, and such other persons or categories of officers as may be appointed by the Cabinet Secretary by notice in the Gazette from time to time.

(4)

In addition to the provisions in Part XIII of this Act relating to the powers of authorized officers, the Cabinet Secretary may by notice in the Gazette provide for—

(a)

the organization and deployment of the Unit;

(b)

the duties to be performed by members of the Unit, and their guidance in the discharge of those duties;

(c)

the regulation of matters relating to discipline in the Unit;

(d)

the description and issue of arms, ammunition accoutrements, uniforms and other necessary supplies to members of the Unit; and

(e)

matters relating generally to the good order and administration of the Unit.

21.
Inter-agency monitoring, control and surveillance unit
(1)

The Cabinet Secretary may make regulations establishing and assigning functions to an inter-agency monitoring control and surveillance unit ("the Inter-agency MCS Unit").

(2)

The Inter-agency MCS Unit shall comprise members specified in Part D of the First Schedule and such other persons as the Cabinet Secretary may co-opt thereto.

(3)

The principal function of the inter-agency MCS Unit shall be to ensure coordinated and effective inter-agency enforcement of and compliance with this Act.

(4)

The Director-General shall serve as the chairperson and the Service shall be the secretariat of the Inter-agency MCS Unit.

PART IV – FINANCIAL AND ADMINISTRATIVE PROVISIONS
22.
Funds of the Service
(1)

The funds of the Service shall consist of—

(a)

such monies as may be appropriated by Parliament;

(b)

such monies or assets as may accrue to or vest in the Service in the course of the exercise of its powers and the performance of its functions under this Act; and

(c)

all monies from any other source provided for or donated or lent to the Service.

(2)

The moneys of the Service shall be expended in accordance with this Act, and only in payment for—

(a)

discharge of expenses, obligations and liabilities of the Service;

(b)

the remuneration of the staff of the Service and for allowances to the members of the Board;

(c)

contracts for technical consultants, observers, researchers and other personnel, activities or operations which support the functions and programmes of the Service;

(d)

travel expenses relating to official;

(e)

training and education courses or programmes for purposes relating to the objectives of the Service, and the functions and programmes of the Service;

(f)

financial assistance for management and development activities in the Counties consistent with the functions of the Service;

(g)

grants to institutions, agencies, associations or other organizations for the purpose of promoting fisheries conservation and management;

(h)

rewards for information leading to convictions for offences under this Act, Cap 412 C, in accordance with such requirements as may be prescribed;

(i)

purchase of capital items necessary to carry out the functions and duties of the Service;

(j)

contributions to donor aid projects as agreed with the donor agency; and

(k)

such other purposes as are consistent with the functions and powers of the Service as the Board, after consultation with the Director-General, shall determine.

(3)

The Service may make such investments as the Board may approve, subject to the approval of the Cabinet Secretary for the time being responsible for matters relating to finance.

(4)

The Service may open and maintain an account with a bank approved by the National Treasury under the Public Finance and Management Act, 2012 and shall at all times maintain one account and shall pay all its moneys into such account.

23.
Financial Year

The financial year of the Service shall be the period of twelve months ending on the thirtieth June in each year.

24.
Annual estimates
(1)

At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of the revenue and expenditure of the Service for that year.

(2)

The annual estimates shall make provision for all the estimated expenditure of the Service for the financial year concerned, and in particular shall provide for—

(a)

the payment of salaries, allowances and other charges in respect of the staff and members of the Service;

(b)

the payment of pensions, gratuities and other charges in respect of retirement benefits which are payable out of the funds of the Service; and

(c)

the acquisition, maintenance, and repair and replacement of the equipment and other movable property of the Service.

(3)

No expenditure shall be incurred for the purpose of the Service except in accordance with the annual estimates approved under subsection (2).

25.
Accounts and audit
(1)

The Board shall cause to be kept proper books and records of account of its income, expenditure and assets of the Service.

(2)

The accounts of the Service shall be audited and reported upon in accordance with the Public Audit Act, No. 34 of 2015.

26.
Director-General to report to the Board
(1)

The Director-General shall, within four months after close of each fiscal year, furnish to the Board—

(a)

an annual report on the progress and the performance of the Service in relation to its functions and the exercise of its powers; and

(b)

a financial report, audited by an auditor appointed by the Board, for the year ended 30th June previously in accordance with the requirements in section 26(2).

(2)

The financial reports of the Service shall be recorded under an "accrual basis" of accounting in accordance with accounting principles generally applied in commercial practice.

(3)

The Board shall consider and as appropriate endorse the reports required under subsection (1) as soon as practicable after receiving them, and transmit them through the Cabinet Secretary to the National Assembly.

(4)

The Cabinet Secretary shall transmit the reports required under subsection (1) to the Speaker for presentation to Parliament.

(5)

The Service shall ensure that the reports required pursuant to subsection (1) are available to the public or other government agencies upon the presentation to Parliament.

27.
Fisheries Research and Development Fund
(1)

There is established a fund to be known as the Fisheries Research and Development Fund which shall be administered by the Director-General.

(2)

There shall be paid into the Fund—

(a)

such monies as may be provided by Parliament;

(b)

donations made to the Service from any source for purposes of the Fund, and

(c)

royalties paid to the Service:

Provided that the Service shall not accept any grant, gift, donation or bequest made on any condition that the Service performs or discharges any duty or obligation other than duties or obligations imposed by this Act.

(3)

The object of the fund shall be to provide supplementary funding for research intended to further the development of fisheries management, capacity building, scholarships, grants and support for the observer programme established under section 147.

(4)

The Cabinet Secretary may by notice in the Gazette provide for the mode of administration of the Fund established under sub-section (1).

28.
Fish Levy Trust Fund
(1)

There is hereby established a fund to be known as the Fish Levy Trust Fund.

(2)

The Fish Levy Trust Fund shall consist of—

(a)

a levy imposed by the Cabinet Secretary under section 28 by Order to require the payment of levies by persons engaged in fishing or fishing related activities of a fish levy ("the levy") which may provide requirements relating, inter alia, to activities within the scope of this Act; and the evidence by which a person's liability to pay the levy, or the payment thereof, may be established, and the time at which any amount shall become payable.

(b)

donations made to the Service from any source for purposes of the Fund; and

(c)

such other sums of money or other assets as may be specifically designated to the Fish Levy Trust Fund by the Service out of its general fund.

(3)

The object of the fund shall be to provide supplementary funding of activities geared towards management, development and capacity building, awards and urgent mitigation to ensure sustainability of the fisheries resource.

(4)

The Trust shall be administered by a five member Board of Trustees nominated through an open and competitive process and they shall meet the requirements of Chapter six of the Constitution.

(5)

The members of the Board of Trustees shall include—

(a)

two fisherpersons from fresh waters and marine waters;

(b)

two persons nominated by the traders exporters association and fish processors; and

(c)

one person appointed by the Cabinet Secretary responsible for fishing with background in aquatic science.

PART V – FISHERIES CONSERVATION, MANAGEMENT AND DEVELOPMENT
29.
Fisheries vest in the State
(1)

All fisheries resources vest in the State and shall be conserved, managed and developed consistently with this Act, including its objective and principles, and acknowledging their role as the heritage of the people of Kenya.

(2)

Nothing in this Act shall be deemed to prevent any member of the community from using, subject to such conditions as may be prescribed under this Act, such fisheries or fisheries resources as it has been the custom of that community to use.

Fisheries Development Measures

30.
Fisheries development measures

The Director-General may, in consultation with County governments, other appropriate agencies and other departments of Government, promote the development of activities within the scope of this Act, through, inter alia—

(a)

providing a national framework of extension and training services;

(b)

conducting research and surveys;

(c)

promoting co-operation among fishers;

(d)

spearheading arrangements for the orderly marketing of fish;

(e)

stocking waters with fish and supplying fish for stocking;

(f)

promoting the adoption of alternative means of livelihood amongst fishers;

(g)

promoting the development of ornamental fisheries;

(h)

promote the development of other sustainable methods of insitu and exsitu fishing;

(i)

providing for the establishment of investor friendly licensing and approval systems;

(j)

developing a comprehensive fish marketing, system, including fish auction, through strengthening linkages along the market value chain;

(k)

encouraging persons in the private sector to organize into associations and form a national coordinating mechanism to ensure efficient marketing systems that adhere to sanitary and phytosanitary requirements;

(l)

facilitating participation in national, regional and international trade negotiations and meetings;

(m)

promoting value addition and utilization of fish by-products and by catch;

(n)

providing for the establishment of accredited fish safety and quality control laboratories and other infrastructural facilities; and

(o)

such other measures and actions as may be approved by the Board.

International fisheries conservation and management measures

31.
Notification by the Director-General
(1)

The Director-General shall by notice in the Gazette give notice of any international conservation and management measures recognized by Kenya for the purposes of this Act.

(2)

A notice under subsection (1) shall append the relevant agreement or arrangement, or international conservation and management measure.

32.
Implementation of international conservation and management measures
(1)

Where the Director-General has reason to suspect that a foreign fishing vessel is, or has been, involved in the contravention of an international conservation or management measure in areas beyond the national jurisdiction of Kenya, the Director-General may, and in cases where such measure has been notified pursuant to section 31(1)—

(a)

provide to the appropriate authorities of the flag State, relevant coastal States, relevant regional fisheries management organization and others as appropriate, relevant information, including any available evidence, relating to such contravention;

(b)

request immediate investigations by the flag State;

(c)

when such foreign fishing vessel is in a port in Kenya, promptly notify the appropriate authorities of the flag State of the vessel accordingly; and

(d)

take additional measures in conformity with international law, including such measures as the flag State of the vessel has expressly requested or to which it has consented and any measures agreed through the relevant regional fisheries management organization.

Co-ordination of Fisheries Management with the Counties

33.
Director-General to keep Counties informed of management measures, processes
(1)

The Director-General shall ensure that all County Governments are consulted and kept informed of relevant management measures and processes taken pursuant to this Act.

(2)

Each County shall collaborate with the Director-General in the management of fisheries and shall, for this purpose ensure that the Director-General is informed, by effective means of communication, of relevant developments in relation to the management of fisheries within the County.

34.
County may develop fisheries management plans
(1)

Each County may develop fisheries management measures and plans for fisheries resources within its jurisdiction as provided in the Fourth Schedule to the Constitution.

(2)

In developing the management measures and plans, referred to in subsection (1), the relevant authorities in the County shall take steps to ensure that such plans and measures are consistent with the provisions of this Act, including its objective and principles, and that they take into account relevant measures taken, information and data available, and the economic and social value of the resource pursuant to this Act.

35.
County to submit fisheries management plans to Director-General for endorsement

Each fisheries management plan developed by authorities in each County shall —

(a)

take into consideration, to the extent possible, elements of a fisheries management plan described in section 39; and

(b)

take into account any recommendations that may be made by the Director-General with respect to the plan.

36.
Relations between National and County governments
(1)

Where there is any conflict between a County fisheries management plan and the management-related provisions of this Act, the Director-General shall consult with the County government and give appropriate direction.

(2)

Where the Director-General is of the opinion, based on information from the implementing officer, that the County government has conducted its affairs in relation to fisheries management in a manner which is contrary to the provisions of this Act, the Director- General shall, with the approval of the Board—

(a)

serve the County government with a notice requiring it to take specified action within a specified period to rectify and improve the fisheries management, and

(b)

if the County government does not take action as required, the Director-General shall prepare a report and submit to the Cabinet Secretary with recommendations on the action to be taken.

37.
Establishment of Beach Management Units
(1)

The Cabinet Secretary may for purposes of ensuring structured community participation in fisheries management, make regulations setting out standards for the management of beach management units established by the county governments.

(2)

Regulations made under subsection (1) may provide, inter alia, in respect of the beach management units, for—

(a)

objectives, structure, areas of jurisdiction and mandate in co-management;

(b)

minimum standards in the general administration of the beach management units;

(c)

standards to be adhered to by beach management units in imposing levies and charges and the management and utilization of such funds;

(d)

such other standards which the Cabinet Secretary may consider necessary for the effective administration and management of the beach management unit;

(e)

the protection of vulnerable groups, especially youth and women; and

(f)

processes necessary to ensure that not more than two thirds of Beach Management Units are of the same gender and to ensure the inclusion of youth and persons with disability in leadership.

Fisheries Conservation and Management

38.
Responsibility for planning fisheries management

The Director-General shall be responsible for planning for the conservation, management, development and sustainable use of all fish and fisheries within Kenya fishery waters.

39.
Fisheries management plans
(1)

The Board may, in consultation with the Council of Governors and on the recommendation of the Director-General, declare a fishery as a designated fishery where, having regard to scientific, economic, cultural, environmental and other relevant considerations, it is determined that the fishery—

(a)

is important to the national interest; and

(b)

requires special conservation and management measures for effective sustainable use of the fisheries resources.

(2)

The Director-General shall, in consultation with the relevant county governments—

(a)

prepare, keep under review and be responsible for the implementation of fisheries management plans for the conservation management, development and sustainable use of each designated fishery in the Kenya fishery waters;

(b)

prepare, keep under review and be responsible for the implementation of fisheries management plans for any other fisheries in the Kenya fishery waters as may be necessary and practicable; and

(c)

determine the priority for the preparation of fisheries management plans, taking into account the advice of any committee established and carrying out functions under this Act and of other relevant stakeholders.

(3)

The Director General shall, in consultation with the counties and other stakeholders, develop guidelines and standards for the development of fisheries management plans that must conform to this Act and shall include—

(a)

identification of the fisheries resource and its characteristics, including its economic and social value and interrelationship with other species in the ecosystem;

(b)

an assessment of the present state of exploitation of the fisheries resource and potential average annual yields;

(c)

the objectives to be achieved in the management and development of the fishery;

(d)

the best information on all relevant biological, social, economic and other applicable factors, determine the maximum sustainable yield;

(e)

the measures, if any, to be taken to promote the development of Kenya fisheries;

(f)

any relevant traditional fishing rights, methods or principles;

(g)

the impact of the plan upon the fishery or fisheries involved, associated and dependent species, habitat, the ecosystem in general and any other area determined relevant;

(h)

management measures;

(i)

any research necessary to enhance management of the fisheries;

(j)

the information and other data required to be given or reported for effective management and development;

(k)

an implementation strategy which explains how the objectives are to be achieved including through stakeholder consultations;

(l)

a plan for monitoring and assessment of the implementation of the fisheries management plan;

(m)

a process for amending or repealing the plan, including the consultation and other processes to be followed; and

(n)

social impact assessment of the plan with reference to disadvantaged groups including women, persons with disability and the youth.

(4)

The Director-General shall, during the preparation of each fisheries management plan, consult as required and appropriate with any committee which may be established and performing its functions under this Act and stakeholders that may be affected by the plan.

(5)

The Director-General shall consult wherever practicable with the appropriate fisheries management authorities of other States in the region, and in particular with those sharing the same or interrelated stocks, with a view to ensuring the harmonization of their respective fisheries management plans and fisheries management in general.

(6)

Each fisheries management plan or review shall come into force upon its publication in the Gazette.

(7)

The management measures in each fisheries management plan shall have the legal force of regulations made pursuant to this Act.

(8)

Any person who engages in fishing or fishing related activities in the Kenya fishery waters or who processes or sells fish taken from the fishing waters shall supply such information in respect of such activities as the Director-General may require in accordance with a fisheries management plan.

(9)

Any person who fails to comply with the management plan commits an offence and shall be liable—

(a)

in case of industrial fishing, to a fine not exceeding five hundred thousand shillings; or

(b)

in case of artisanal fishing, to a fine not exceeding one hundred thousand shillings.

(10)

Any person who fails to supply information required under sub section (8) commits an offence and shall be liable on conviction to a fine of two hundred and fifty thousand shillings or to a term of imprisonment in respect of artisanal fishing not exceeding three months, and in respect of all other activities not exceeding six months or both.

40.
Fisheries management measures
(1)

The Director-General may in accordance with the best scientific advice and such other relevant information as may be available, with the approval of the Cabinet Secretary, by notice in the Gazette, impose, inter alia, any of the following measures for the conservation and management of any fishery—

(a)

closed seasons and or areas for species of fish or methods of fishing provided that customary fishing rights are protected;

(b)

prohibited fishing areas for all or designated species of fish or methods of fishing;

(c)

limitations on the types of gear, including mesh sizes of nets, that may be used for fishing;

(d)

limitations on the types and/or number of fishing vessels permitted to engage in fishing provided that customary fishing rights are protected;

(e)

limitations on the amount, size, age and other characteristics and species or composition of species, of fish that may be caught, landed or traded;

(f)

regulate the landing of fish and provide for the management of fishing ports, including fish landing stations;

(g)

control of the introduction into, or harvesting or removal from Kenya fishery waters of any species of fish, including aquatic plants;

(h)

define and identify fragile aquatic ecosystems and provide structures to enable collaborative protection;

(i)

regulate trade in endangered species of fish and fish products;

(j)

prohibit the possession, trade in or manufacture of prohibited gear in a specified area or areas; and

(k)

any other measures consistent with the objective and principles of this Act.

(2)

Any person who contravenes the provisions of a notice issued under this section commits an offence and is liable on conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding one year or to both in respect of industrial fishing, and to a fine not exceeding twenty thousand shillings or imprisonment for a term not exceeding three months or to both in respect of artisanal fishing.

(3)

The measures referred to in this section may include —

(a)

refusal to issue or renew licences;

(b)

imposition of special licence or catch fees; and

(c)

preferential licencing.

41.
Limitation of fishing and fishing related activities
(1)

The Director-General may take fisheries management measures to limit fishing and fishing related activities in accordance with the objective and principles of this Act and shall communicate such measures by notice in writing to the persons affected.

(2)

A person aggrieved by the action taken by the Director-General pursuant to subsection (1) may appeal in writing to the Cabinet Secretary.

42.
Prohibited fishing gear and methods
(1)

No person shall use, permit to be used or attempt to use or carry on board a vessel—

(a)

fishing gear that has not been authorized by a valid and applicable licence issued pursuant to this Act for the purpose of fishing unless otherwise provided in this Act;

(b)

any fish aggregating device unless an authorization has been issued in accordance with this Act;

(c)

a trawl net or other net the mesh of which is less in stretched diagonal length than the prescribed mesh size;

(d)

the method of pair trawling for the purpose of fishing;

(e)

monofilament net for the purpose of fishing;

(f)

more than one net at a time for the purpose of fishing with trawl net;

(g)

attachments to any trawl net except as may be prescribed;

(h)

a gill net, whether drifting or set, in any river or body of water forming part of the riverine system a gill net, whether drifting or set, in any river or body of water forming part of the riverine system if the mesh of the net is less than forty-five millimeters in stretched diagonal length;

(i)

a seine net the mesh of which is less than forty-five millimetres in stretched diagonal length;

(j)

a beach seine net for the purpose of fishing;

(k)

a seine net in any body forming part of the riverine system;

(l)

firearms or other electrical shock devices for the purpose of fishing including stunning, disabling or killing fish or in any way rendering fish to be caught easily; or

(m)

such other gear as may be prescribed or prohibited by regulations established under this Part.

(2)

Unless otherwise prescribed, no person shall use for fishing, from an industrial fishing vessel, any net or combination of nets the mesh of which is less than—

(a)

sixty millimetres in stretched diagonal length for the meshes forming the cod-end of the net for demersal trawl nets;

(b)

forty-five millimetres in stretched diagonal length for the meshes in the cod-end for catching shrimp and other shellfish;

(c)

forty-five millimetres in stretched diagonal length for seine nets; and

(d)

in the case of a trawl net, where the sides of the net are less than the mesh of the cod-end.

(3)

No person shall use on an industrial fishing vessel a bottom trawl in coastal waters of less than fifteen meters depth.

(4)

No person shall, for the purpose of fishing, set any net across any river from bank to bank so as to form a barrier.

(5)

No person shall—

(a)

permit to be used, use or attempt to use any explosive, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or in any way rendering fish more easily caught; or

(b)

carry or have in possession or control any explosive, electric shock device, poison or other noxious substance in circumstances indicating an intention of using such substance for any of the purposes referred to in subparagraph (a).

(6)

Any explosive, electric shock device, poison or other noxious substance found on board any fishing vessel shall be presumed, unless the contrary is proved, to be intended for the purposes referred to in paragraph (1) (a) of subsection (42).

(7)

A person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction to a fine not exceeding five million shillings or to a term of imprisonment not exceeding three years or to both in respect of industrial fishing and to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three months or to both in respect to artisanal fishing.

43.
Damage, destruction to and interference with fishing gear, vessel, person prohibited
(1)

No person shall while using a vessel, wilfully and negligently damage, destroy, interfere with, endanger or cause injury in respect of—

(a)

any fishing gear that he or she does not own or use or that is not associated with such vessel;

(b)

any other vessel and/or persons thereon; or

(c)

any persons on any other vessel or otherwise in the Kenya fishery waters.

(2)

Where a vessel becomes entangled with fixed fishing gear or other object referred to in subsection (1), the master shall—

(a)

undertake to minimize any damage caused by the gear;

(b)

where practicable return the gear to the sea and log the position; and

(c)

make a full report of the incident and steps taken by him or her to the Director General at the earliest opportunity.

(3)

Where events referred to in subsection (1) or (2) occur, the master shall, immediately—

(a)

where any person has been injured or harmed in any way—

(i) rescue such person from the sea;
(ii) administer all possible first aid or medical treatment; and
(iii) steam directly to shore and seek further medical treatment;
(b)

where there has been a death of a person, recover the body and bring it directly to port; and

(c)

make full report of the incident and steps taken to the police.

(4)

A person who contravenes sub-section (1), (2) or (3) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term for a term of imprisonment not exceeding one year or to both, and in addition that person shall fully compensate the owner of the fishing gear for any damage or injury caused under civil law as a consequence of the action unless there is sufficient proof that the damage, destruction, interference or endangerment took place in an area where the person or vessel that caused such consequence were legally entitled vessel that caused such consequence were legally entitled to be at that time and it was not reasonably possible to detect the fishing gear or vessel and any relevant fishing gear was not marked in accordance with the requirements pursuant to this Act.

(5)

Where human life is lost as a consequence of any negligent or wilful action under sub-section (1), the responsible person shall be liable on conviction to a fine not exceeding one million shillings or imprisonment to a term not exceeding ten years or to both, and in addition that person shall compensate the estate of the deceased under civil law.

(6)

Each person making a claim for compensation pursuant to subsection (4) shall do so within a period of three years.

44.
Leaving or abandoning objects in the sea Prohibited
(1)

No person shall dump gear, moorings or other objects in the sea or leave unnecessarily or abandon such objects in the sea or on the seabed if they may adversely affect fish or other marine organisms including by continuing to enmesh, trap or otherwise catch fish, impede harvesting operations, damage harvesting gear or endanger vessels.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding three years, or to both, and in addition such person shall be responsible for the full cost of clearing or removing the relevant objects in respect of industrial fishing or to a fine not exceeding fifty thousand shillings or to a term of imprisonment not exceeding three months in respect of artisanal fishing.

45.
Declaration of endangered species of fish
(1)

The Cabinet Secretary may, by notice in the Gazette, declare any species of fish to be endangered or threatened with extinction, and shall, to the extent possible, include those species relevant to Kenya that have been declared endangered or threatened under any international agreement or instrument to which Kenya is party.

(2)

Unless otherwise provided by the Cabinet Secretary, no person shall engage in fishing for, catch, possess, transport, process, buy or sell any species of fish declared endangered or threatened with extinction pursuant to subsection (1).

(3)

A person who contravenes sub-section (2) commits an offence and shall be liable on conviction to—

(a)

a fine not exceeding two hundred and fifty thousand shillings or to a term of imprisonment not exceeding three years or to both in respect of industrial fishing; or

(b)

a fine not exceeding fifty thousand shillings or a term of imprisonment not exceeding six months in respect of artisanal fishing.

(4)

Where a species of fish has been declared as endangered under subsection (1), the Cabinet Secretary shall take special measures for its protection.

46.
Prohibitions and requirements for marine mammals
(1)

Subject to subsection (3), no person shall engage in fishing for marine mammals in Kenya fishery waters or use any port in Kenya for the purpose of equipping or supplying a vessel intended to be used for fishing for marine mammals.

(2)

Any marine mammal caught either intentionally or unintentionally shall be released immediately and returned to the waters from which it was taken with the least possible injury.

(3)

The Director General may give written authorization to fish for marine mammals in a limited manner for research purposes.

(4)

A person who contravenes subsection (1) or (2) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding three years or to both.

47.
Marine Protected Areas
(1)

The Cabinet Secretary may, in consultation with the Kenya Fisheries Advisory Council, stakeholders and the Board, by notice in the Gazette, declare any area of the Kenya fishery waters to be a Marine Protected Area, and shall, as part of such declaration, identify its components including the following—

(a)

area;

(b)

boundaries;

(c)

purpose;

(d)

objective;

(e)

a mandate for total or partial regulation;

(f)

management measures;

(g)

decision-making responsibilities;

(h)

procedures for the coordination of stakeholders;

(i)

procedures for conflict resolution;

(j)

procedures for monitoring and review.

(2)

The Cabinet Secretary may, subject to approval by the National Assembly, make regulations to give effect to this section.

48.
Fisheries impact assessments
(1)

Any person or Government Ministry or other agency that plans to conduct any activity other than fishing which is likely to have an adverse impact on fish and their habitat, shall apply to the Director-General in the prescribed form prior to the commencement of the planned activity with a view to ensuring the conservation and protection of such resources.

(2)

Where an application is made under subsection (1), the Director General shall refer the matter to the National Management Authority who shall give a report regarding the likely impact of such activity on the fishery resources, including theirs habitat and possible means of preventing or minimizing adverse impact.

(3)

Any report or recommendation prepared in accordance with subsection (2) shall be taken into account by the relevant person, Government Department or other agency in the planning of the activity and in the development of means of preventing or minimising any adverse impacts.

(4)

Any report made under sub-section (2) shall be completed within six months of making the application.

(5)

Any person who violated any provisions of this section commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both and in addition such a person shall be liable to pay compensation in respect of any resulting loss or damage as well as full cost of restoring the affected habitat to its previous state.

49.
Pollution of the Kenya Fishery Waters
(1)

No person shall prepare for the introduction of, attempt to introduce or introduce into the Kenya fishery waters, directly, indirectly, deliberately, any deleterious article or substance, including articles or substances which may have toxic, hazardous or other harmful properties or effects in relation to fish or the marine environment, and which may adversely affect the habitat or health of the fish.

(2)

A person who contravenes subsection (1) is guilty of an offence and shall be liable on conviction to fine not exceeding five million shillings or to a term of imprisonment not exceeding ten years or to both, and in addition shall be liable to pay compensation in respect of any resulting loss or damage as well as the full cost of restoring the affected habitat and fishery resources to their previous state.

(3)

The Director-General may suspend or cancel the licence of a vessel to which this section applies until such time as all fines, penalties and damages have been satisfied.

(4)

Notwithstanding subsection (2), in the event of an accidental introduction into the Kenya fishery waters of any deleterious article or substance prohibited in subsection (1), or in the event of encountering such articles, the owner, operator or master of the vessel shall immediately report the incident to the Director-General giving the following information to the extent possible—

(a)

the name of the reporting person and, as appropriate, the name and call sign, if any, of the vessel from which the introduction or encounter occurred;

(b)

the nature of the article disposed or encountered;

(c)

the location of the article or substance; and

(d)

the time and date of the incident.

(5)

Unless it is provided otherwise, the provisions of section 93 of the Environmental Management and Co-ordination Act, No. 8 of 1999, shall apply to offences involving discharge of pollutants under this Act.

50.
Fish landing stations, etc
(1)

The Cabinet Secretary may, on the recommendation of the Director-General as endorsed by the Board establish by a notice in the Gazette—

(a)

fish landing stations,

(b)

designated fishing ports, and

(c)

protected fish breeding grounds.

(2)

Notwithstanding subsection (1), the areas specified in the Second Schedule are declared to be designated fishing ports, with effect from the date of the commencement of this Act.

(3)

No person other than a sport fisherman shall land any fish at any point except at a fish landing station or port.

(4)

A person who contravenes the provisions of sub-section (3) commits an offence and shall be liable on conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding three months or to both in case of fish landing stations or to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both in case of ports.

51.
Placing of live fish
(1)

No person shall place or, by act of omission or otherwise, cause to be placed, any species of live fish in any place in Kenya fishery waters without authorization issued in writing by the Director-General, except where—

(a)

the fish species being so placed previously occurred in the same body of water prior to being fished therefrom; or

(b)

a fish farmer is stocking his pond with fish obtained from another fish farmer with whom he shares the same water catchment area.

(2)

Any person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding three hundred and fifty thousand shillings or to imprisonment for a term not exceeding two years, or to both.

52.
Director-General to direct stock assessments, collection and analysis of other information and forward to the Board
(1)

In addition to the information requirements specified in Part VIII, the Director-General may by notice in writing direct any person whom he is satisfied is suitably qualified to undertake the periodic stock assessment of all the fishery waters and collect and analyze statistical and other data and information on activities under the scope of this Act and forward the same to the Board.

(2)

In addition to the requirements set out in Part VIII, any data collected pursuant to this section shall be maintained in a database in such form as the Director-General may determine.

(3)

Any person who contravenes the provisions of a notice issued under this section commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.

53.
Prohibited activities relating to fish or fish products taken contrary to the laws of another State
(1)

No person shall, within Kenya or in the fishery waters, on their own account or any other capacity—

(a)

cause or permit a person acting on his or her behalf, or

(b)

use or permit a vessel to engage in fishing or related activity, to take, import, export, tranship, land, transport, sell, receive, acquire or buy any fish or fish product taken, possessed, transported or sold in violation of any law or regulation of another State or of international conservation and management measures in line with section 31 of this Act.

(2)

This section does not apply to fish taken on the high seas contrary to the law of another State where Kenya does not recognise the jurisdiction of that State over those fish except to vessels flying Kenya's flag or to areas where the boundaries are disputed or not clear.

(3)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to—

(a)

a fine not exceeding five million shillings or to a term of imprisonment not exceeding five years or to both, in relation to industrial fishing; or

(b)

a fine not exceeding one hundred thousand shillings or to imprisonment for term not exceeding six months or to both, in relation to artisanal fishing.

PART VI – IMPORT, EXPORT AND TRADE AND MARKETING OF FISH AND FISH PRODUCTS
54.
Import and release of live fish
(1)

No person shall import any live fish into Kenya without the written approval of the Director-General and in accordance with such procedures as may be prescribed and the approval shall only be given upon production of an environmental impact assessment report on the effect of each introduction.

(2)

No person shall release any live fish imported into Kenya into the fishery waters except with the written approval of the Director-General.

(3)

The Director-General shall not approve any release of live fish unless the fish has been kept under observation and control for such period and on such terms and conditions as the Director-General thinks fit.

(4)

Where the Director-General is satisfied that any fish which has been imported into Kenya is unsuitable for the purpose of release the Director may order the fish to be forfeited and destroyed.

(5)

The importer and exporter of any fish destroyed under subsection (4) shall not be entitled to compensation.

55.
Export of live fish
(1)

No person shall export any live fish from Kenya except in accordance with regulations.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding three years or to both.

56.
Possession and trade in fish, fish product or other marine resources prohibited
(1)

No person who has clear cause to believe that a fish, fish product or other fisheries resources have been obtained in contravention of this Act shall buy, sell, possess or otherwise trade in such fish, fish products, or other fisheries resources.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding three years or to both, and in addition all fish or fish products in respect of which the offence is committed shall be forfeited.

57.
Promotion of fish production and marketing

The Director-General may, in consultation with Fish Marketing Authority, for the purposes of promotion of fish production and marketing—

(a)

enter into arrangements and agreements with registered associations or institutions for the management development and administration of fisheries, and

(b)

facilitate the establishment of fish market management units and aquaculture production units.

PART VII – FISH QUALITY AND SAFETY
58.
Competent authority
(1)

The Ministry responsible for the Service shall be the competent authority responsible for the official control of the safety of fish, fish products and fish feed.

(2)

The Cabinet Secretary shall establish a technical committee on Fish Quality and Safety.

(3)

The functions of the Committee shall be to—

(a)

monitor the production of fish products and fish feed with a view to assessing risks to humans;

(b)

regulate fish handling, landing, transportation, processing and marketing;

(c)

work in collaboration with other Government agencies in matters related to this section;

(d)

carry out inspection of operational fishery enterprises for compliance with fish safety regulations issued by the Cabinet Secretary;

(e)

lay down all procedures to be followed for compliance with provisions under paragraph (f);

(f)

specify conditions for the placing on the market of fish, fish products and fish feed;

(g)

maintain a register of fishery enterprises approved by the competent authority.

(h)

issue health certification of fish, fish products and fish feed subject to the consignment meeting set requirements;

(i)

perform such other functions as may be necessary or expedient for food safety conditions of fish products in accordance with this Act.

(4)

The Cabinet Secretary may for the purposes of subsection (2) make regulations, and such regulations shall regard to conduct of the affairs of the standing committee.

59.
Harmonization of fish safety and quality standards

The Director-General may, pursuant to the Treaty Making and Ratification Act, 2013 in consultation with the Cabinet Secretary enter into arrangements or agreements with other States within shared fishery resources for the purpose of harmonization of fish safety and quality standards.

60.
Sale, export of adulterated or contaminated fish, or fish products prohibited
(1)

Any person who sells or exports fish or fish products intended for human consumption shall comply with all applicable food quality, health and sanitation requirements and shall not sell or export such fish or fish products which—

(a)

are adulterated;

(b)

are contaminated with or contains a poisonous or harmful substance or pathogenic micro-organisms;

(c)

have not met applicable inspection standards; or

(d)

are otherwise injurious to human health.

(2)

A person who knowingly and wilfully contravenes sub-section (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to an imprisonment for a term not exceeding ten years or to both, and in addition any fish or fish products involved in the transaction and those owned or controlled by such person shall be forfeited.

PART VIII – AQUACULTURE
61.
Aquaculture activities requirements
(1)

No person shall engage in commercial aquaculture activities except in accordance with this Act.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding three hundred thousand shillings or to a term of imprisonment not exceeding five years or to both.

62.
Aquaculture development plan
(1)

The Director-General shall, in consultation with the Oceans and Fisheries Advisory Council, prepare an aquaculture development plan for the review and endorsement by the Board and approval by the Cabinet Secretary, with the objective of promoting the sustainable development of aquaculture in Kenya in accordance with the principles and objectives of this Act.

(2)

Any aquaculture development plan developed under subsection (1) shall be for duration of three years.

(3)

The aquaculture development plan shall include—

(a)

a statement of the objectives and priorities of the plan and a strategy for achieving those objectives;

(b)

performance indicators to monitor the extent to which the objectives of the plan are being attained;

(c)

a strategy for monitoring progress at least on an annual basis, and as appropriate an evaluation of the implementation of the aquaculture plan that preceded it;

(d)

a description or identification of any area of water which is suitable for aquaculture and the type of aquaculture for which the area is suitable;

(e)

a description of suitable methods for undertaking any type of aquaculture;

(f)

identification of suitable or unsuitable species of fish for aquaculture;

(g)

requirements or standards for water quality, aquaculture waste, escapement, environmental impact assessments and the introduction, transfer and release of fish for purposes related to aquaculture; and

(h)

any other matter concerning aquaculture which the Board or Director-General considers appropriate.

(4)

The first aquaculture development plan shall be prepared and submitted through the Board to the Cabinet Secretary for approval as soon as reasonably practicable and in any case within one year from the date on which this Act enters into force.

63.
Collaboration with Counties

The Director-General shall, in collaboration with County authorities and relevant bodies, ensure that—

(a)

aquaculture development is ecologically sustainable and allows rational use of the resource shared by aquaculture and other activities; and

(b)

the livelihood, culture and traditions of local communities and their access to fishing grounds are not affected by aquaculture development.

64.
Prohibited to deprive community of traditional access to fisheries
(1)

No person shall, by carrying out aquaculture activities, deprive a local community of its traditional access to fishing grounds without good cause and without first consulting the affected community.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding three hundred thousand shillings or to a term of imprisonment not exceeding three years or to both, and in addition shall restore to the local community its traditional access.

65.
County' s responsibility to monitor non-commercial aquaculture activities
(1)

County governments shall monitor aquaculture and mariculture practices and operations in areas under their respective jurisdictions pursuant to this Act.

(2)

Where any person or any County government has cause to believe that any fish and fish products from any waters used for aquaculture activities are infected with a disease which can reasonably be foreseen to become, or which has become, of epidemic proportions, such County government shall in consultation with the Cabinet Secretary, give notice in writing to the owner of the relevant waters requiring the destruction of all fish and fish products in the said waters or the taking of such other measures as the county government may specify in the notice.

(3)

Every person who receives a notice under subsection (2) shall comply with its requirements at her own expense, and in default of such compliance, the local fisheries authority may enter the relevant facility and take or cause to be taken such measures as may be necessary for complying with the requirements of the notice and any expenses incurred shall be recoverable as a civil debt from the person so notified.

(4)

A person who does not comply with the requirements in the notice received pursuant to subsection (2) commits an offence and shall be liable on conviction not exceeding three hundred thousand shillings or to a term of imprisonment not exceeding three years or to both, and in addition shall be responsible for costs directly associated with the resulting damage.

(5)

Where an officer wilfully, negligently or without justifiable cause issues a notice under sub-section (2), the officer shall be held personally liable for any resultant loss.

66.
Permission of Director-General and approval by Board required
(1)

No person shall, without written permission granted by the Director-General on the advice of the Board—

(a)

introduce or cause to be introduced into Kenya or the Kenya fishery waters any exotic species of fish or any genetically modified fish;

(b)

transfer any eggs, fingerlings or seed of exotic or genetically modified species or such adult species of fish from one aquaculture establishment in Kenya to another or from any location in Kenya to another;

(c)

import or export live fish for the purpose of aquaculture; or

(d)

release into the fishery waters any fish except for indigenous wild fish caught in Kenya.

(2)

Permission for any activity in subsection (1) may be granted subject to such conditions as the Director-General, with the written approval of the Board, considers appropriate and after an environmental impact assessment has been undertaken.

(3)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings or to a term of imprisonment not exceeding five years or to both.

67.
Director-General's authority to inspect, seize fish destined for import or expert or diseased, highly invasive fish
(1)

The Director-General may inspect or cause to be inspected any fish before or after they are imported for the purpose of aquaculture and inspect or cause to be inspected any fish produced by aquaculture operations that are destined for export.

(2)

The Director-General may seize, hold, quarantine, disinfect or destroy any live fish that have been imported or that are destined for import or export for purposes of aquaculture, and shall take such measures where it is determined that the species are diseased or highly invasive.

68.
Aquaculture waste
(1)

Each person engaged in commercial aquaculture in Kenya shall ensure that aquaculture waste—

(a)

does not cause an unsightly or offensive condition at the licence area; and

(b)

is secured or treated in a manner designed to prevent it from being blown, washed or swept off the licence area.

(2)

Where any person fails or apparently fails to fulfil the conditions set out in subsection (1), the Director-General, in consultation with the National Environmental Management Authority, may notify such person in writing of the requirement to take measures to restore the applicable area to such standard as the Director-General may specify within a stated period of time, and may upon inspection require such person to redesign the applicable area.

(3)

Each person who is notified by the Director-General pursuant to subsection (2) shall promptly fulfil the requirements set out in the notification.

(4)

A person who contravenes subsection (1) or (3) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding five years or to both, and in addition shall be responsible for compensation for the costs of restoring the applicable area as required pursuant to subsection (2).

69.
Escapement
(1)

Each person engaged in commercial aquaculture in Kenya shall take appropriate measures to prevent or minimise the risk of the escape of aquaculture stock into the wild.

(2)

Where there has been an escape of hatchery reared aquaculture stock or damage to a farming structure, equipment or facility that may lead to the escape of hatchery reared aquaculture stock, the operator of the relevant aquaculture establishment shall take immediate measures to minimise the damage and to repair any damage caused to the extent possible.

(3)

Each person engaged in commercial aquaculture in Kenya shall, within twelve hours after becoming aware of the escape of hatchery reared aquaculture stock or damage to a farming structure in relation to a facility over which the person exercises management or control or to other equipment, that may lead to the escape of hatchery reared aquaculture stock, notify the Director-General of the escape or damage, including the following—

(a)

the species of fish affected;

(b)

the date (or an estimate of the date) on which the escape or damage took place;

(c)

the number and biomass (or an estimate of the number and biomass) of the fish that have escaped; and

(d)

the age or developmental stage of the fish at the time of their escape and details of the circumstances in which the escape or damage took place, and, within seven days after becoming aware of such escape or damage, notify the Director-General in writing of the action taken to deal with it.

(4)

A person who contravenes subsection (1), (2) or (3) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding five years or to both.

70.
Use of drug, chemical, etc. restricted
(1)

No person shall use in a commercial aquaculture establishment any drug, pharmaceutical, antibiotic or other chemical for the treatment of fish diseases or for the enhancement of fish growth without the written approval of the Director-General.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding five years or to both.

71.
Information on wild, genetically modified species

The Director-General shall have the authority to collect information and data on wild and genetically modified species for the purpose of assessing their impact on aquaculture.

72.
Interfering with aquaculture establishment prohibited
(1)

No person shall, without a valid and applicable aquaculture license—

(a)

interfere with or harvest the product of an aquaculture establishment without the written authority of the licensee;

(b)

place any object in the water, or promote or undertake any activity in a manner so as to obstruct an aquaculture operation being carried out by another person;

(c)

destroy, damage, displace or alter the position of any equipment lawfully deployed in connection with an aquaculture licence; or

(d)

without lawful excuse cause the release of any product of an aquaculture establishment.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding two hundred thousand shillings or to a term of imprisonment not exceeding five years or to both, and in addition shall fully compensate the relevant licensee for any damage which is the direct result of his/her contravention.

73.
Transboundary aquaculture ecosystems

Subject to applicable regional and international law, the Director-General shall initiate dialogue with other riparian States to ensure that governments and aquaculture farmers are obliged to protect transboundary aquatic ecosystems from —

(a)

escapement of aquaculture species into shared water bodies;

(b)

waste from aquaculture activities;

(c)

diseases that are likely to become or have reached epidemic proportions; and

(d)

effluent that might affect transboundary aquatic ecosystems.

74.
Regulations for Aquaculture
(1)

The Cabinet Secretary may make Regulations for the better carrying out of the provisions of this Act.

(2)

Without prejudice to the generality of the provisions of subsection (1), the Regulations shall include—

(a)

fish hatchery standards;

(b)

qualifications of persons authorized to offer aquaculture extension services;

(c)

the mode of establishment of fish cages or any such form of aquaculture establishment in Kenya fishery waters;

(d)

aquaculture extension systems;

(e)

fish disease surveillance, control and management in aquaculture establishments;

(f)

the use of biotechnology to increase productivity;

(g)

codes of practice for fish farmers; or

(h)

any other measure that he deems necessary for the proper management of aquaculture.

PART IX – INFORMATION, DATA AND RECORDS
75.
Information, data and records
(1)

The Director-General may, for purposes of this Act, require any person to keep and furnish in such manner and form and at such time as the Director may specify—

(a)

any information and data, including information relating to fishing, fisheries, aquaculture, landing, research, storage, food safety, processing, buying, selling, exports and other related transactions;

(b)

accounts, records, returns, documents; and

(c)

any other information in relation to activities falling within the scope of this Act additional to that specified under this Act.

(2)

The following categories of persons shall keep such accounts, records, documents, and furnish such returns, data and other information, in accordance with the requirements under this Act—

(a)

holders of licences or authorizations issued under this Act;

(b)

owners, operators, legal representatives, and masters of vessels licensed or authorized under this Act;

(c)

owners and persons in charge of any premises where fish or fish products are received, bought, stored, transported, processed, sold, or otherwise disposed of;

(d)

persons who engage in the receiving, buying, selling, transporting, processing, storage, export, import or disposal of fish or fish products;

(e)

persons who engage in commercial aquaculture activities;

(f)

persons engaged in recreational fishing;

(g)

persons engaged in fishing otherwise than for the purpose of sale of the fish caught, including research; and

(h)

such other persons who may be required to do so by the Director-General pursuant to this Act.

(3)

The Director-General may, for purposes of verification of accounts, records, documents, returns, or information required to be kept, furnished or communicated in any manner or form under subsection (1) or (2)—

(a)

audit or inspect any accounts, records, returns or other information or place where such information may be kept;

(b)

audit or inspect any vessel, processing plant aquaculture establishment or other facility operating under the scope of this Act; and

(c)

require from any person further information, clarification or explanation regarding any accounts, returns or information kept, furnished or communicated under this section in accordance with such time limits as may be specified or prescribed.

(4)

A person who—

(a)

is required pursuant to subsections (1), (2) or (3) to keep, furnish, provide or communicate any accounts, records, returns or other data or information and does not do so as lawfully requested or required; or

(b)

does not facilitate, assist or comply with the requirements for an audit or inspection undertaken pursuant to subsection (3),

commits an offence and shall be liable on conviction to a fine of three hundred thousand shillings or to a term of imprisonment not exceeding five years or to both, and any licence issued pursuant to this Act which is held by such person shall be revoked.

76.
Ownership of information

Ownership of all information required to be reported, notified or otherwise given to the Government and all information generated by automatic location communicators or similar device that is part of a vessel monitoring system under this Act is vested in the Government.

77.
Information in partnership agreements between vessel agents and vessel owners
(1)

True copies of all agreements setting out the terms of partnership,

association or other contractual obligations of agents to vessel owners shall be deposited in their full and unabridged form with the Ministry upon the application in respect of a foreign fishing vessel for any licence or authorization under this Act.

(2)

In cases where an agreement contains information of a significantly sensitive commercial nature, such information may be concealed provided that it is declared, certified and legally notarised as such.

(3)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine of one million thousand shillings or to a term of imprisonment not exceeding three years or to both.

(4)

Any person who, not being party to the partnership, association or other contractual obligation referred to in subsection (1), divulges information of a confidential nature or conceals information which is not of a significantly sensitive commercial nature, commits an offence and shall be liable on conviction to a fine of three hundred thousand shillings or to a term of imprisonment not exceeding five years or to both.

78.
Information on labels of containers, etc. containing fish harvested in

Kenya fishery waters

(1)

The labels of any container or packaging materials containing fish harvested in the Kenya fishery waters shall clearly indicate—

(a)

that the fish were harvested in the Kenya fishery waters, irrespective of the flag State of the vessel or nationality of any person involved in the production of such fish, and shall not indicate in any way that such fish is the product of any State other than Kenya;

(b)

the name of the fishing vessel that harvested the fish;

(c)

the name of the company that is the owner or operator of the fishing vessel; and

(d)

such other information that may be prescribed.

(2)

A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine of three hundred thousand shillings or to a term of imprisonment not exceeding three years or to both.

79.
Information to be true, complete and correct
(1)

Any information given, furnished or maintained or required to be given, furnished or maintained under this Act shall be true, complete and accurate.

(2)

A person who keeps, furnishes or communicates any accounts, records, returns or information by or under this Act, and gives, furnishes, or maintains information which is false, misleading or inaccurate in contravention of subsection (1) in any material respect, commits an offence and shall be liable on conviction to a fine of three hundred and fifty thousand shillings or to a term of imprisonment not exceeding three years or to both, and any relevant licence issued pursuant to this Act which is held by such person may be revoked.

80.
Confidential information
(1)

No person carrying out duties or responsibilities under this Act, including the Cabinet Secretary, Board members and Director-General shall, unless authorized or otherwise provided or directed in accordance with this Act, reveal information or other data of a confidential nature or designated as confidential in accordance with this Act, acquired by virtue of their said authority, duties and responsibilities to any person not having such authority or carrying out such duties and responsibilities.

(2)

The Cabinet Secretary in consultation with the Director-General may designate any information as confidential, and in doing so may also exempt general summaries of aggregated information from confidentiality requirements.

(3)

The Director-General may authorise in writing any person to—

(a)

receive or access confidential information;

(b)

access or restrict access to such premises holding confidential information as he/she may designate.

(4)

Notwithstanding subsection (2), the following information shall be confidential unless the Cabinet Secretary in consultation with the Director-General otherwise directs—

(a)

any information or data of a commercial nature provided in records, returns, or other documents required under this Act;

(b)

any information or data supplied by a vessel monitoring system or part thereof in accordance with this Act;

(c)

such raw data from scientific research as may be designated by the Cabinet Secretary in consultation with the Director-General; and

(d)

such other information or data as may be required by the Cabinet Secretary in consultation with the Director-General.

(5)

Information may be disclosed to the extent—

(a)

that disclosure is authorized or required under this Act or any other law;

(b)

that the person providing the information authorized its disclosure;

(c)

necessary to enable the Director-General to publish statistical information relating to the fisheries sector;

(d)

necessary for enforcement of Kenya laws by other Ministries and agencies of the Government of Kenya;

(e)

necessary to discharge regional or international obligations or to promote regional and international cooperation or coordination in monitoring, control and surveillance of relevant activities; and

(f)

necessary to enable advice to be given to the Cabinet Secretary.

(6)

The Cabinet Secretary in consultation with the Director-General may authorise the release of any information—

(a)

relating to the real-time or other position of any vessel, upon request, to the responsible authority for purposes including surveillance, search and rescue and other emergency;

(b)

for purposes he or she deems would be supportive of the objectives and enforcement of this Act, including reasonable transparency in decision-making; or

(c)

designated as confidential for such purposes as the Cabinet Secretary may approve or as may be prescribed.

(7)

Any information designated as confidential shall maintain such classification for a period of five years from the time of such designation, and at the expiry of five years, the Cabinet Secretary in consultation with the Director-General may extend such classification for a further period of up to five years or more as they may deem necessary for purposes relating to the objectives and enforcement of this Act.

(8)

A person who does not comply with the requirements of subsection (1), except where disclosure is authorized pursuant to subsection (3), (5) or (6) commits an offence and shall be liable on conviction to a fine of one million shillings.

81.
Registers of licences and authorizations
(1)

The Director-General shall establish and maintain a national register of licences and authorizations issued under this Act in accordance with such requirements as may be prescribed or required by the Minister.

(2)

The register established under subsection (1) shall include—

(a)

information on applications for licences and authorizations under this Act;

(b)

information on each licence and authorization issued, renewed, suspended or cancelled under this Act, including the activity, date and duration;

(c)

information on each licensed or authorized person;

(d)

information on the relevant vessel, facility, and/or licensed or authorized activity;

(e)

any record of non-compliance with the licence or authorization;

(f)

any record of action taken as a result of non-compliance;

(g)

the requirements of any relevant international conservation and management measures of an organization of which Kenya is a member or cooperating non-member; and

(h)

such other information that may be prescribed or required by the Director-General.

(3)

The register established under subsection (1) shall contain information relating to fishing vessels licensed or authorized for fishing or fishing related activities—

(a)

within areas under national jurisdiction; and

(b)

in areas beyond national jurisdiction.

(4)

The Director-General shall, in respect of information contained in the register in accordance with subsection (2), provide access to such information on request by directly interested Government bodies, regional fishery bodies including regional fisheries management organizations, international organizations and foreign States or entities, taking into account any applicable laws regarding the confidentiality or release of such information.

(5)

The Director-General shall ensure that the information on each license and authorization in the database is sufficient for purposes of fisheries management and monitoring, control and surveillance, and to implement the international and regional agreements to which Kenya is party or cooperating non-party.

(6)

The Director-General shall ensure that, where appropriate, information is released from the database and communicated to other States and regional and international organizations in a timely manner to ensure the discharge of the regional and international obligations of Kenya including as a flag State and as a member of regional fisheries management organizations.

(7)

Registration of a licence or authorization in the national register shall not be considered a licence or authorization for the purposes of this Act.

(8)

A person may, upon payment of such fee as may be prescribed, access any non-confidential information from the register.

82.
Information on legal and administrative action taken in respect of violations of the Act

The Director-General shall maintain and make publicly available a record of the outcome of any legal or administrative action taken in respect of any violation against this Act that results in a judgment or administrative determination.

83.
Information available to public

The Director-General shall make information available to the public and as necessary disseminate relevant information to stakeholders for purposes of fisheries conservation, management and development, including regional and international organizations, except for such information that may be designated confidential in accordance with section 82.

PART X – LICENSING AND REGISTRATION

Licences, authorizations and registration

84.
Licences and authorizations required
(1)

A valid and applicable licence issued in accordance with section 92(3) shall be required for—

(a)

using an industrial fishing vessel for fishing or fishing related activities in the Kenya fishery waters;

(b)

using a semi-industrial fishing vessel for fishing or related activities in the Kenya fishery waters;

(c)

using an artisanal fishing vessel for commercial purposes;

(d)

commercial aquaculture; and

(e)

such other activity or activities within the scope of this Act for which a licence or authorization may be required by the management measures in an applicable Fisheries Management Plan adopted in accordance with the requirements in this Act, or as may be prescribed from time to time.

(2)

The respective county governments shall be responsible for issuing licenses with respect to—

(a)

using any vessel for recreational fishing in the Kenya fishery waters; and

(b)

operating a fish processing establishment within the respective county.

(3)

The Cabinet Secretary shall prescribe the standards for the registration of vessels and grant, renewal and revocation of licences by a county government under sub-section (2).

(4)

Each County Government may enact county specific legislation setting out the—

(a)

criteria for the registration of a vessel and issuance of a licence to an applicant for a licence under subsection (2);

(b)

information required to be submitted by an applicant for registration or issuance of a licence;

(c)

process of determination of an application;

(d)

conditions for the issuance or renewal of a licence under this Act;

(e)

grounds for the rejection of an application or cancellation of a licence issued under this Act;

(f)

process of application for the renewal of licences, de-registration of a vessel and revocation of a licence issued to an applicant by the county government; and

(g)

appointment of inspectors or such other authorised officers to carry out such inspections as the county executive committee member responsible for fisheries may consider necessary for the implementation of this Act.

(5)

A valid and applicable written authorization issued in accordance with section 88 and 89 shall be required for—

(a)

using a Kenyan fishing vessel in areas outside the Kenyan fishery waters;

(b)

each transhipment, including the transfer of fish from a fishing vessel to a carrier vessel or a shore based facility for the purpose of export;

(c)

using any vessel for marine scientific research or test fishing;

(d)

using any foreign fishing vessel to enter a port in Kenya; and

(e)

deployment and maintenance of any fish aggregating device in the Kenya fishery waters.

85.
Subsistence exemption from licence requirements
(1)

Any person fishing only for purposes of non-commercial subsistence, intended to result in consumption of the fish caught, shall be exempt from the requirement for a licence but shall require to apply to the respective county government for registration.

(2)

The Cabinet Secretary may by order published in the Gazette determine the quantity of fish which may be deemed to be fish for own consumption under subsection (1), and different quantities may be determined for different areas of Kenya.

(3)

Subsection (1) shall not apply to a person employed by a licensee, or, subject to section 23 of the Penal Code, to a company which is a licensee, in respect of any act done by the person or company as such licensee.

86.
Grant, renewal and issuance of licences and authorizations
(1)

The Board, on the recommendation of the Director-General may approve the grant or renewal of licences or authorizations for any purpose specified in section 87 after all inspections, verifications and other pre-licensing requirements under this Act have been discharged and each licence or authorization shall be issued or renewed upon the written endorsement of the Cabinet Secretary.

(2)

A licence or authorization shall not have legal force or effect unless it has been approved and endorsed as required in subsection (1).

(3)

The Director-General shall, in approving or renewing a licence under subsection (1), act in accordance with the procedures required pursuant to this Act and such other transparent and accountable standards as may be determined and published.

(4)

The Director-General shall promptly issue such licences or authorizations when all required conditions under this Act have been met and the Cabinet Secretary has endorsed such licence or authorization.

(5)

Where the Director-General declines to approve, issue or renew a licence or authorization, the Director-General shall state in writing reasons for the decision, and promptly transmit them to the applicant.

87.
Standards for approval, renewal and issuance of licences and authorizations
(1)

In approving or renewing licences and authorizations pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134,

the Director-General shall take into account the extent to which the relevant fishing vessel, including its operator or other relevant person, as appropriate, has—

(a)

the ability to comply with, or has complied with this Act, relevant laws of Kenya and any applicable licensing terms and conditions or Fisheries Management Plan and such other standards as may be required in writing by the Director-General;

(b)

complied, and has the ability to further comply with other applicable regional and international obligations of Kenya;

(c)

complied with all applicable vessel registration requirements;

(d)

complied with all applicable requirements for pre—licensing inspections and related procedures, including as appropriate the full payment of costs for inspections;

(e)

provided all required data and information;

(f)

in the case of an operator or person, complied with applicable laws of other States and international conservation and management measures;

(g)

where the applicant has been convicted of any offence under this Act or any other law relevant to the activity for which application was made, the requirements of the judgment have been fully met; and

(h)

complied with other relevant laws of Kenya including any applicable requirements of the Merchant Shipping Act,

(2)

In approving or renewing licences and authorizations in respect of any fishing vessel other than a Kenya fishing vessel pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134, the Director-General shall take into account the ability of the relevant flag State to ensure compliance by its fishing vessels with the laws of Kenya.

(3)

An industrial or semi-industrial fishing licence shall not be issued or have legal force or effect unless the relevant vessel submits to inspection at the port of Mombasa or such other port as may be required by the Director-General, at the expense of such vessel, and it is established in writing by an inspector, or in the case of a port outside Kenya a person duly authorized by the relevant government agency to carry out the duties of an inspector, that all required licence conditions have been met, including that all gear on board is authorized pursuant to the licence.

(4)

A fish processing licence shall not be issued or have legal force or effect unless the county executive committee member responsible for fisheries in the respective county in consultation with the Director-General is satisfied that the fish processing establishment or any other operation complies with all such safety and sanitary standards as this Act, other laws of Kenya and conditions as the Cabinet Secretary by notice in the Gazette may require.

88.
Requirements for denial of licences and authorizations
(1)

A licence or authorization shall not be approved, endorsed, issued or renewed where—

(a)

a relevant vessel is not intended for use as a fishing vessel;

(b)

a relevant vessel does not hold a valid and applicable registration, or holds more than one registration;

(c)

a relevant vessel is not a Kenya vessel and does not have a valid and applicable authorization or licence from its flag State to fish in areas beyond national jurisdiction, including in Kenya fishery waters;

(d)

the issuance of a licence would be contrary to any applicable fisheries management plan or an aquaculture development plan;

(e)

the applicant for a commercial aquaculture licence has not undertaken an environmental impact assessment as required in respect of an aquaculture licence, or that such an assessment concludes that a licence should not be approved, endorsed, issued or renewed;

(f)

the species of fish that the applicant for a commercial aquaculture licence proposes to farm, the method of aquaculture that the applicant proposes to employ or the proposed site for aquaculture do not meet standards or requirements that may be prescribed or publicly notified for aquaculture;

(g)

within the previous six years, the applicant, or a vessel or person closely connected with the applicant in respect of activities falling within the scope of this Act, has been convicted of a serious offence pursuant to this Act or any international agreement and has not complied with a judgment or administrative determination unless, in respect of a vessel there has been a change of ownership of the vessel and there is no connection between the former owner(s) and the new owner(s), and the new owner(s) do not have a history of engaging in illegal, unreported or unregulated fishing;

(h)

the applicant, vessel, or associated person has been charged with an offence pursuant to this Act more than three times and has—

(i) not submitted to judicial or administrative procedures; or,
(ii) has submitted to judicial or administrative procedures but has not fully complied with the final decision or determination;
(i)

the issuance of the licence or authorization would be inconsistent with an international agreement to which Kenya is party;

(j)

the operator of the fishing vessel has not provided a performance bond if so required pursuant to section 134;

(k)

the activity is likely to threaten the sustainability of a fishery resource;

(l)

in the case of a foreign fishing vessel, an agent has not been appointed; or

(m)

the vessel in respect of which the licence is sought has been included on a list of illegal, unreported and unregulated fishing vessels established and maintained by a competent regional fishery body in accordance with its rules and procedures.

(2)

A licence or authorization shall not be approved, issued or renewed for any fishing vessel if that vessel was previously licensed or authorized by a foreign State for fishing within or in areas beyond national jurisdiction and was convicted of a violation under national law or undermined the effectiveness of international conservation and management measures, and, as a consequence—

(a)

the foreign State suspended such licence or authorization because of illegal, unreported or unregulated fishing activities by the vessel, and the suspension has not expired; or

(b)

the foreign State within the last three years preceding the application for a licence under this Act withdrew such licence or authorization for illegal, unreported or unregulated fishing activities.

(3)

The restriction in subsection (2) does not apply if the ownership of the vessel has changed since the vessel undermined international conservation and management measures, and the new owner has provided sufficient evidence to the Director-General demonstrating that the previous owner or operator has no further legal, beneficial or financial interest in the vessel.

(4)

For the purpose of subsection (1) (e) the term ‘associated' shall include situations where the same legal or beneficial owner, or agent is shared.

89.
Application for the grant or renewal of licences or authorizations
(1)

Except where otherwise prescribed, an application for a licence or authorization under this Act shall—

(a)

contain such information as may be required in this Act or in writing by the Director-General or as may be prescribed;

(b)

be in such form as may be prescribed or such other form as may be approved by the Director-General;

(c)

in the case of industrial fishing vessels, be accompanied by an International Tonnage Certificate showing the gross tonnage issued under the International Tonnage Rules;

(d)

be accompanied by a fishing plan which shall specify for each month of the full period of validity of a licence or authorization, a fishing plan including the—

(i) fishing gear to be used;
(ii) species to be targeted for fishing, and expected quantity;
(iii) species that will constitute bycatch and expected quantity; and
(iv) area in which fishing or fishing will take place; and
(e)

be made in accordance with such procedures and other requirements as may be approved by the Director General.

(2)

A non-refundable application fee as may be prescribed shall be payable and shall accompany every application for a licence or authorization required pursuant to this Act or the renewal of such licence or authorization.

(3)

Where—

(a)

the Director-General considers that an application has been made for an inappropriate class of licence;

(b)

there is insufficient evidence or information accompanying the application upon which to make a recommendation regarding the application;

(c)

the information accompanying the application appears to be false, misleading or inaccurate; or

(d)

upon such other grounds as may be approved by the Board, the Director-General shall return the application to the applicant with details of her/his reasons for returning the application, and the applicant may submit a revised application with such additional evidence or information as may be appropriate.

(4)

If the information on an application is found to be false, misleading or inaccurate the Director-General may decline to grant the licence or authorization, or if such information is discovered to be false, misleading or inaccurate after the grant of the licence or authorization, the Director-General may suspend or cancel the licence or authorization.

90.
Terms and conditions of licences and authorizations
(1)

A licence or authorization granted under this Act—

(a)

shall be subject to the terms and conditions, requirements and endorsements as are provided in this Act or as may be otherwise prescribed or required by the Director-General by Public Notice from time to time;

(b)

subject to subsection (2), shall enter into force on the date specified in it; and

(c)

unless sooner revoked or suspended in accordance with this Act, remains in force until the date on which it expires in accordance with the period approved by the Director-General from time to time for the class of licence or authorization to which it belongs.

(2)

No licence or authorization shall be issued unless—

(a)

the approved fee and other required charges have been paid at the required time; and

(b)

where applicable—

(i) a performance bond has been issued as required pursuant to section 134 and notified to the Director-General; and
(ii) any access fee or other charges or levies payable under any relevant access agreement or arrangement, right or licence have been paid.
(3)

The holder of a licence or authorization issued pursuant to this Act shall—

(a)

comply with this Act, the laws of Kenya, any applicable access agreement, fisheries management plan, and international conservation and management measures;

(b)

comply with all relevant provisions of national law relating to navigational standards and the safety of vessels at sea; standards relating to work conditions on board fishing vessels; and

(c)

not engage in fishing or fishing related activities, operate a fish processing establishment or engage in commercial aquaculture except as stated in the licence or authorization.

(4)

The holder of a licence or authorization in respect of a fishing vessel shall ensure that the licence or authorization, or a certified copy thereof is carried on board any relevant vessel at all times during the period of validity and the master shall upon request, produce it to an authorized officer or inspector or other person authorized under this Act to inspect it, provided that the Director-General may authorise a true copy of a licence to be temporarily carried in circumstances where it has not been reasonably practical for the original to be placed on board a vessel.

(5)

The holder of a licence or authorization issued pursuant to this Act, other than for a fishing vessel, shall display the licence or authorization or a certified copy thereof in the registered business office, and produce it upon request to an authorized officer or inspector or other person authorized under this Act to inspect it.

(6)

A person who contravenes subsection (3), (4) or (5) commits an offence and shall be liable on conviction to a fine not exceeding three hundred and fifty or to a term of imprisonment not exceeding three years or to both.

91.
Preference for employment of citizens of Kenya
(1)

Where commercial employment is foreseen in relation to the activity for which the licence or authorization is sought, it shall be a condition of the licence or authorization is sought, it shall be a condition of the licence or authorization that citizens of Kenya possessing the necessary qualifications and experience shall be given preference for employment, and such employment shall be in accordance with the Employment Act, No. 1 of 2007.

(2)

A licensee shall not—

(a)

import unskilled labour; or

(b)

in any case use child labour,

for the carrying out of any of its operations undertaken under the terms of the applicable licence or authorization.

(3)

Where the applicant for a licence or authorization is partly or wholly a foreign citizen or company, or where an applicable fisheries access agreement, arrangement, right, licence or authorization has been entered into pursuant to section 89 and 90, such applicant shall be required, to the extent possible and in such manner as the Director-General may in consultation with the Cabinet Secretary approve, to contribute to the training and employment of Kenya citizens taking into account the requirements of safety and the need to maintain acceptable standards of efficiency in the conduct of the operations.

(4)

A person who contravenes subsection (2) or who does not fulfil requirements made by the Director-General under subsection (3) commits an offence and shall be liable on conviction to a fine not exceeding three hundred thousand shillings.

92.
Period of validity of licences and authorizations

A licence or authorization issued pursuant to this Act shall, unless otherwise provided, be valid for a maximum period of one year and may be renewable, subject to any fisheries management decision taken in accordance with this Act and the terms and conditions set out in the licence or authorization.

93.
Fees, charges or levies
(1)

A licence or authorization granted under this Act shall be subject to payment of—

(a)

such licence fee prescribed for that class of licence as may be prescribed; and

(b)

such other fees, charges or levies as are set out in this Act, or as may be prescribed or required by the Director General by public notice.

(2)

The Director-General may, as a component of the licence or authorization fee for any fishing vessels, charge for the costs relating to observers described in section 148 (b) of this Act, and shall deposit such component into a designated account in the Fund established in section 27 and use such component solely for the purposes of the observer programme set out in section 147 and to pay the observer costs identified in section 152.

(3)

The Director-General may charge licence holders for the costs of services,

including inspection services, in accordance with such policy and at such levels as the Cabinet Secretary may establish by Public Notice.

(4)

Unless otherwise prescribed or required, the amounts payable pursuant to subsections (1), (2) and (3) shall be paid as a condition of the issuance of a licence and no licence shall be issued unless they have been paid in full.

94.
Suspension or cancellation of licence or authorization
(1)

The Director-General may, by written notice to the holder of a licence or authorization or that person's agent, suspend or cancel any licence or authorization issued pursuant to this Act for any of the following reasons—

(a)

there has been a contravention of the licence or authorization, this Act, an applicable international agreement or international conservation and management measures or relevant applicable law of a third country in respect of which the licence or authorization was given, and —