Anti-Counterfeit Act

Section 1. Short title Section This Act may be cited as the Anti-Counterfeit Act.

Section 2. Interpretation Section the manufacture, production, packaging, re-packaging, labelling or making, whether in Kenya, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods;

Section 3. Establishment of the Authority Section 3(1) There is hereby established an Authority to be known as the Anti-Counterfeit Authority. Section 3(2)(a) suing and being sued; Section 3(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 3(2)(c) borrowing and lending money; Section 3(2)(d) charging fees for services rendered by it; Section 3(2)(e) entering into contracts; and Section 3(2)(f) doing or performing all such other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done by a body corporate.

Section 4. Headquarters Section The headquarters of the Authority shall be in Nairobi. [Act No. 18 of 2018 , Sch.]

Section 5. Functions of the Authority Section enlighten and inform the public on matters relating to counterfeiting;

Section 6. Board of the Authority Section 6(1)(a) a Chairperson appointed by the Cabinet Secretary from amongst the members appointed under paragraph (h); Section 6(1)(b) the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or his or her representative; Section 6(1)(c) the Principal Secretary in the Ministry for the time being responsible for matters relating to finance or his or her representative; Section 6(1)(cc) the Attorney-General or his representative; Section 6(1)(d) deleted by ActNo. 25 of 2015, Sch.; Section 6(1)(e) the Commissioner-General of the Kenya Revenue Authority, who may be represented by the Commissioner of Customs; Section 6(1)(f) the Managing Director of the Kenya Bureau of Standards; Section 6(1)(g) the Chief Executive of the Kenya Association of Manufacturers or a representative, being a person who meets the qualifications set out in paragraph (h); and Section 6(1)(h) intellectual property rights; Section 6(1)(h)(i) intellectual property rights; Section 6(1)(h)(ii) consumer protection, or Section 6(1)(h)(iii) trade. Section 6(2) A person shall not qualify to be appointed as Chairperson under subsection (1)(a) u...

Section 7. Powers of the Board Section formulate, with approval of the Cabinet Secretary, policies pertaining to the organisation, management and implementation of the objects of the Authority;

Section 8. Conduct of business and affairs of the Board Section 8(1) The conduct and regulation of the business and affairs of the Board shall be as provided for in the Schedule. Section 8(2) Except as provided for in the Schedule, the Board may regulate its own procedure.

Section 9. Remuneration of Board members Section The members of the Board shall be paid such remuneration, fees, allowances and disbursements for expenses as may be approved by the Cabinet Secretary for the time being responsible for finance, on the recommendation of the Board.

Section 10. Executive Director Section 10(1) There shall be an Executive Director of the Authority who shall be appointed by the Board, and whose terms and conditions of service shall be determined by the Board in the instrument of appointment or otherwise in writing from time to time. Section 10(2)(a) has a degree in law, science, information technology or business administration from a recognized institution and has at least three years working experience in the relevant field; or Section 10(2)(b) has at least seven years working experience in matters relating to trade or industry. Section 10(3)(a) be an ex officio member of the Board but shall have no right to vote at any meeting of the Board; Section 10(3)(b) be the secretary to the Board; Section 10(3)(c) subject to the directions of the Board, be responsible for the day to day management of the affairs of the Authority; Section 10(3)(d) be responsible to the Board generally for supervision of inspectors; and Section 10(3)(e) be responsible to the Board generally for the implementation of this Act.

Section 11. Staff of the Authority Section The Board may appoint such officers, agents and other staff of the Authority as are necessary for the proper discharge of its functions under this Act or any other written law, upon such terms and conditions of service as the Board may determine. [Act No. 18 of 2018 , Sch.]

Section 12. The common seal Section 12(1) The common seal of the Authority shall be kept in the custody of the Executive Director or of such other person as the Board may direct, and shall not be used except upon the order of the Board. Section 12(2) The common seal of the Authority, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless and until the contrary is proved, any necessary order or authorization by the Board under this section shall be presumed to have been duly given. Section 12(3) The affixing of the common seal of the Authority shall be authenticated by the signature of the Chairperson of the Board and the Executive Director: Provided that the Board shall, in the absence of either the Chairperson or the Executive Director, in any particular matter, nominate one member of the Board to authenticate the seal of the Authority on behalf of either the Chairperson or the Executive Director. [Act No. 18 of 2018 , Sch.]

Section 13. Delegation by the Board Section The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law.

Section 14. Protection from personal liability Section 14(1) No matter or thing done by a member of the Board or by any officer, member of staff or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever. Section 14(2) Any expenses incurred by any person in any suit or prosecution brought against him in any court in respect of any act which is done or purported to be done by him under the direction of the Authority, shall, if the court holds that such act was done bona fide , be paid out of the general funds of the Authority, unless such expenses are recovered by him in such suit or prosecution. [Act No. 18 of 2018 , Sch.]

Section 15. Liability of the Board for damages Section The provisions of section 14 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or by any other written law or by the failure, whether wholly or partially, of any works. [Act No. 18 of 2018 , Sch.]

Section 16. Liability for damage or loss on application of Act Section 16(1) Any person who suffers damage or loss caused by wrongful seizure, removal or detention of goods alleged to be counterfeit goods pursuant to a complaint laid with the Executive Director in accordance with the provisions of this Act, shall be entitled to claim compensation for the damage or loss suffered by him against the complainant: Provided that compensation shall only be paid where the complaint was false, negligent or laid in bad faith. Section 16(2)(a) in the seizure or removal of the alleged counterfeit goods, the inspector, or, in the detention and storage of those goods, the person so in charge, depending on the circumstances, has been grossly negligent; or Section 16(2)(b) the inspector or the person so in charge, as the case may be, in the seizure, removal, detention or storage of those goods, acted in bad faith. Section 16(3) Reference in subsection (2) (a) and (b) to an inspector or to a person in charge of a counterfeit goods depot shall be construed to include any person acting on the instruction or under the supervision of the inspector or the person so in charge, as the case may be. Section...

Section 17. Funds of the Authority Section such moneys as may be appropriated by Parliament for the purposes of the Authority;

Section 18. Financial year Section The financial year of the Authority shall be the period of twelve months ending on the thirtieth of June in each year. [Act No. 18 of 2018 , Sch.]

Section 19. Annual estimates Section 19(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 Authority for that financial year. Section 19(2)(a) the payment of salaries, allowances and other charges in respect of the officers, agents or members of staff of the Authority; Section 19(2)(b) the payment of pensions, gratuities and other charges in respect of retirement benefits payable to the members of staff of the Authority; Section 19(2)(c) the maintenance of the buildings and grounds of the Authority; Section 19(2)(d) the maintenance, repair and replacement of the equipment and other property of the Authority; and Section 19(2)(e) the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance, replacement of buildings or equipment, or in respect of such other matters as the Board may deem appropriate. Section 19(3) The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and, once approved, shall be submitted to the Cabinet Secretary for approval and, after the...

Section 20. Accounts and audit Section 20(1) The Board shall cause to be kept proper books and records of accounts of the income, expenditure, assets and liabilities of the Authority. Section 20(2)(a) a statement of the income and expenditure of the Authority during that financial year; and Section 20(2)(b) a statement of the assets and liabilities of the Authority on the last day of that financial year. Section 20(3) The accounts of the Authority shall be audited and reported upon by the Auditor-General in accordance with the provisions of the Public Audit Act (Cap. 412B). [Act No. 18 of 2018 , Sch.]

Section 21. Investment of funds Section 21(1) The Board may invest any of the funds of the Authority in securities in which the Board may by law invest trust funds, or in any other securities which the Cabinet Secretary for the time being responsible for finance may, from time to time, approve. Section 21(2) The Board may, subject to the approval of the Cabinet Secretary for the time being responsible for finance, place on deposit with such bank or banks as it may determine, any moneys not immediately required for the purposes of the Authority. [Act No. 18 of 2018 , Sch.]

Section 22. Appointment of inspectors Section 22(1) The Board shall, for purposes of enforcing the provisions of this Act, appoint such number of inspectors as the Board may consider appropriate and shall issue to them, in writing or in such form as may be prescribed, certificates of authority to act as inspectors. Section 22(2)(a) hold office subject to such terms and conditions as the Board may determine; Section 22(2)(b) have full police powers in the exercise of their duties under this Act. Section 22(3) In addition to inspectors appointed under subsection (1), any member of the Board, police officer, authorised customs officer, trade development officer, industrial development officer, trade mark and patent examiner, seed and plant inspector, public health inspector, and inspectors appointed under the Standards Act (Cap. 496), the Weights and Measures Act (Cap. 513), the Copyright Act (Cap. 130), the Food, Drugs and Chemical Substances Act (Cap. 254), the Pharmacy and Poisons Act (Cap. 244) and the Pest Control Products Act (Cap. 346) are hereby designated as inspectors for purposes of this Act. Section 22(4) The Board may designate other public officers to be inspectors for p...

Section 23. Powers of inspectors Section 23(1)(a) enter upon and inspect any place, premises or vehicle at, on or in which goods that are reasonably suspected of being counterfeit goods are to be found, or on reasonable grounds are suspected to be manufactured, produced or made, and search such place, premises or vehicle and any person found in such place, premises or vehicle, for such goods and for any other evidence of the alleged or suspected act of dealing in counterfeit goods, and for purposes of entering, inspecting and searching such a vehicle, an inspector may stop the vehicle, wherever found, including on any public road or at any other public place; Section 23(1)(b) take the steps that may be reasonably necessary to terminate the manufacturing, production or making of counterfeit goods, or any other act of dealing in counterfeit goods being performed, at, on or in such place, premises or vehicle, and to prevent the recurrence of any such act in future: Provided that those steps shall not include the destruction or alienation of the relevant goods unless authorized by an order issued by a court of competent jurisdiction; Section 23(1)(c) seize detain, and, where applicable...

Section 24. Obstruction and breaking of seal Section 24(1)(a) wilfully obstructs an inspector in the discharge of his duties; Section 24(1)(b) wilfully fails to comply with any requirement properly made to him by an inspector; Section 24(1)(c) without reasonable cause, fails to give to an inspector any assistance or information which the inspector may reasonably require of that person for the purpose of the performance of his duties under this Act; or Section 24(1)(d) in giving any such information as is mentioned in paragraph (c), makes any statement which he knows to be false or does not believe to be true, Section 24(2)(a) breaks, damages or tampers with a seal applied by an inspector under this Act; or Section 24(2)(b) removes any goods, documents, articles, items, objects or things sealed or sealed-off by an inspector or detained or stored at a counterfeit goods depot under this Act,

Section 25. Duty of inspector upon seizure of goods Section 25(1)(a) forthwith seal, clearly identify and categorize the goods and prepare, in quadruplicate, an inventory of such goods in the prescribed form and cause the person from whom the goods are seized to check the inventory for correctness, and, if correct, cause that person to make a certificate under his signature on each copy of the inventory and if the seized goods are removed under paragraph (c), the inspector shall endorse that fact under his signature on every copy of the inventory, in which case the inventory shall also serve as a receipt; Section 25(1)(b) furnish one copy of the inventory to the person from whom the goods are seized and another to the complainant, if any, within five working days after the seizure; Section 25(1)(c) as soon as possible, remove the goods, if transportable, to a counterfeit goods depot for safe storage, or, if not capable of being removed or transported, declare the goods to have been seized in situ, and seal off or seal and lock up the goods or place them under guard at the place where they were found, and thereupon that place shall be deemed to be a counterfeit goods depot; and Sect...

Section 26. Evidence and presumptions Section 26(1) Copies of any statement taken down or other documentary evidence procured by an inspector in the course of exercising his powers under this Act, may be made available to a complainant upon an application in the prescribed manner. Section 26(2) In any civil proceedings concerning an act of dealing in counterfeit goods by any person, it shall be permissible to present evidence about that person’s conviction or convictions on account of an offence or offences founded on acts of dealing in counterfeit goods. Section 26(3) A statement made by an inspector to the effect that the goods specified in the inventory attached to that statement are goods seized by him from a specified person at a specified place and on a specified date shall be prima facie evidence of the facts stated therein concerning the counterfeit goods or any act of dealing therein. Section 26(4) Where the subsistence of an intellectual property right in respect of protected goods or any person’s title to or interest in such intellectual property right is in issue in any civil or criminal proceedings concerning counterfeit goods, the substance of, title to or interest in...

Section 27. Storage and access to seized goods Section 27(1)(a) is ordered by a court to return, release, destroy or otherwise dispose of those goods as specified in the order: Provided that in the case of counterfeit goods, such goods shall be destroyed at the expense of the local manufacturer or importer, as the case may be, based on the environmental considerations and the capacity of the country to destroy the goods, or shall be reshipped; Section 27(1)(b) is directed by an inspector under section 28 to release the goods to the person from whom they were seized. Section 27(2) Upon an application in the prescribed manner, goods seized under section 23(1) shall, within five working days, be made available for inspection by the complainant or prospective complainant, if any, the suspect or any other interested person, at the counterfeit goods depot at any reasonable time. Section 27(3) Upon an application in the prescribed manner, the Executive Director may make a sample of the seized goods available within a period of five working days to the applicant for testing or analysis. Section 27(4) An inspector may take, in the prescribed manner, samples of goods in reasonable quantities...

Section 28. Release of seized goods Section 28(1) Where any goods are seized and detained under section 23 , they shall be returned, less any portion thereof which has been reasonably utilized for the purpose of any test or analysis, to the person from whom they were seized within a period of three months after the date of seizure unless, within such period, some person is charged with an offence under this Act and it is alleged that such offence was committed in relation to or in connection with such goods. Section 28(2) Where a prosecution for an offence under this Act is commenced within the period mentioned in subsection (1), and any person is convicted of that offence, the court which made the conviction may order that any goods seized and detained in relation to or in connection with which such offence was committed shall be forfeited to the Government for destruction at the expense of the person so convicted. Section 28(3) The court before which a person is charged with an offence under this Act shall, whether such person is convicted of the offence or not, order that any goods in his possession which appear to the court to be counterfeit goods or to be tools used or intende...

Section 29. Counterfeit goods depot Section 29(1) The Board may, by notice in the Gazette , designate any place to be a counterfeit goods depot for the purposes of this Act. Section 29(2) The Board shall appoint a fit and proper person to be in charge of a counterfeit goods depot.

Section 30. Conduct of prosecutions Section 30(1) The Director of Public Prosecutions may, pursuant to the provisions of the Criminal Procedure Code (Cap. 75), appoint public prosecutors for purposes of cases arising under this Act. Section 30(2) The Board shall, for purposes of section 171(4) of the Criminal Procedure Code (Cap. 75), be deemed to be a public authority. [Act No. 12 of 2012 , Sch.]

Section 31. Disclosure of information and impersonation Section 31(1)(a) any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of powers of entry conferred on him under this Act; or Section 31(1)(b) any information obtained by him in the performance of functions under this Act, Section 31(2) If any person who is not an inspector purports to act as such, such person commits an offence.

Section 32. Offences Section have in his possession or control in the course of trade, any counterfeit goods;

Section 33. Laying a complaint Section 33(1) Any holder of an intellectual property right, his successor in title, licensee or agent may, in respect of any protected goods, where he has reasonable cause to suspect that an offence under section 32 has been or is being committed, or is likely to be committed, by any person, lay a complaint with the Executive Director. Section 33(2) The complainant shall furnish, to the satisfaction of the Executive Director, such information and particulars, as may be prescribed, to the effect that the goods with reference to which that offence has allegedly been, or is being, or is likely to be, committed, prima facie are counterfeit goods. Section 33(3)(a) that the complainant is a person entitled to lay a complaint under subsection (1); and Section 33(3)(b) the goods claimed to be protected goods, prima facie are protected goods; and Section 33(3)(b)(i) the goods claimed to be protected goods, prima facie are protected goods; and Section 33(3)(b)(ii) the intellectual property right, the subject matter of which is alleged to have been applied to the offending goods, prima facie subsists; and Section 33(3)(c) that the suspicion on which the complain...

Section 34. Powers of the Commissioner or Executive Director Section 34(1)(a) goods featuring, bearing, embodying or incorporating the subject matter of that intellectual property right or to which the subject matter of that right has been applied; and Section 34(1)(b) imported into or enter Kenya during the period specified in the application: Section 34(2)(a) a specimen of the goods to which the subject matter of his relevant intellectual property right relates; Section 34(2)(b) the subsistence and extent of that intellectual property right; and Section 34(2)(b)(i) the subsistence and extent of that intellectual property right; and Section 34(2)(b)(ii) his title to that right. Section 34(3)(a) the goods claimed to be protected are prima facie protected goods; Section 34(3)(b) the intellectual property right, the subject matter of which relates to the protected goods, prima facie subsists; and Section 34(3)(c) the applicant prima facie is the owner of that intellectual property right. Section 34(4) When an application made under subsection (1) has been granted and notice thereof given under subsection (5), the counterfeit goods of the type with reference to which that application...

Section 34A. Compounding of offences Section 34A(1) Subject to subsection (2), the Executive Director may, where satisfied that any person has committed an offence under this Act in respect of which a fine is provided for or in respect of which anything is liable to forfeiture, order such person to pay a sum of money, not exceeding the amount of the fine to which the person would have been liable if he or she had been prosecuted and convicted for the offence, as he may deem fit, and the Executive Director may order anything liable to forfeiture in connection with the offence to be forfeited. Section 34A(2) The Executive Director shall not exercise the powers conferred under subsection (1) unless the person admits in the prescribed form that he or she has committed the offence and requests the Executive Director to deal with such offence under this section. Section 34A(3)(a) the order shall be in writing and shall have attached to it the request of the person to the Executive Director to deal with the matter; Section 34A(3)(b) the order shall specify the offence which the person committed and the penalty imposed by the Executive Director; Section 34A(3)(c) a copy of the order shall...

Section 34B. Trademark Section 34B(1) Trademarks relating to goods to be imported into Kenya, irrespective of the place of registration, shall be recorded with the Agency, in the prescribed manner if the registration is current. Section 34B(2) Applicants for recordation of trademarks shall be notified of the approval or denial of an application filed under this section in a prescribed manner by notice in the Anti-Counterfeit newsletter published by the Agency. Section 34B(3)(a) the name, complete business address, and citizenship of the trademark owner or owners (if a partnership, the citizenship of each partner; if an association or corporation the State, country, or other political jurisdiction within which it was organized, incorporated, or created); Section 34B(3)(b) the places of manufacture of goods bearing the recorded trademark; Section 34B(3)(c) sample of the trademarked goods or a sufficient digital photographic representation of the trademarked goods with appropriate details for identification and differentiation from any counterfeits; Section 34B(3)(d) the name and principal business address of each foreign person or business entity authorized or licensed to use the tra...

Section 35. Penalties Section 35(1)(a) in the case of a first conviction, to imprisonment for a term not exceeding five years, or to a fine, in respect of each article or item involved in the particular act of dealing in counterfeit goods to which the offence relates, not less than three times the value of the prevailing retail price of the goods, or both; Section 35(1)(b) in the case of a second or any subsequent conviction, to imprisonment for a term not exceeding fifteen years, or to a fine, not less than five times the value of the prevailing retail price of the goods, or both. Section 35(2) A person convicted of an offence under section 24 or 31, shall be liable to imprisonment for a term not exceeding three years, or a fine not exceeding two million shillings, or both. Section 35(3)(a) shall, when considering which penalty to impose, take into account, inter alia, any risk to human or animal life, health or safety or danger to property, whether movable or immovable, that may arise from the presence or use of the counterfeit goods in question; Section 35(3)(b) the source from which the counterfeit goods involved in the commission of the offence, were obtained; Section 35(3)(b)...

Section 36. Exemption from stamp duty Section No duty shall be chargeable under the Stamp Duty Act (Cap. 480) in respect of any instrument executed by, or on behalf of, or in favour of the Authority, which, but for this section, the Authority shall would be liable to pay. [Act No. 18 of 2018 , Sch.]

Section 37. Regulations Section 37(1) The Cabinet Secretary may make regulations generally for the better carrying into effect the provisions of this Act. Section 37(2)(a) anything required by this Act to be prescribed; Section 37(2)(b) any inventory to be prepared or made under this Act; Section 37(2)(c) any matter necessary or expedient for the proper and effective control, management and administration of a counterfeit goods depot and the proper care of the goods detained therein; Section 37(2)(d) the manner and procedures for proper disposal of counterfeit goods; Section 37(2)(e) any other matter that may be necessary or expedient for the proper and effective administration of this Act.