Kenya Trade Remedies Act

Section 1. Short title Section This Act may be cited as the Kenya Trade Remedies Act.

Section 2. Interpretation Section by nature confidential; or

Section 3. Establishment of Agency Section 3(1) There is established an Agency to be known as the Kenya Trade Remedies Agency. Section 3(2)(a) suing and being sued; Section 3(2)(b) purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; Section 3(2)(c) borrowing and lending money; and Section 3(2)(d) doing or performing all other things or acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate.

Section 4. Headquarters of the Agency Section The headquarters of the Agency shall be in Nairobi.

Section 5. Functions of the Agency Section investigate and evaluate allegations of dumping and subsidization of imported products in Kenya;

Section 6. Management of the Agency Section 6(1)(a) a Chairperson appointed by the President upon the recommendation of the Public Service Commission through a competitive process; Section 6(1)(b) the Principal Secretary in the Ministry for the time being responsible for matters relating to finance or a representative of the Principal Secretary; Section 6(1)(c) the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or a representative of the Principal Secretary; Section 6(1)(d) the Principal Secretary in the Ministry for the time being responsible for matters relating to industrialisation or a representative of the Principal Secretary; Section 6(1)(e) the Attorney-General or a representative of the Attorney-General; Section 6(1)(f) three other members appointed competitively by the Cabinet Secretary; and Section 6(1)(g) the Executive Director of the Agency who shall be the Secretary. Section 6(2) The Board shall ensure that all it appointments conform to the values and principles of the Constitution under Articles 27 and 32 and other relevant provisions of the Constitution.

Section 7. Qualification for appointment Section 7(1)(a) holds a masters degree in a relevant discipline from a university recognized in Kenya; Section 7(1)(b) has had a distinguished career in a senior management position in the private or public sector; Section 7(1)(c) has at least ten years' relevant professional experience; and Section 7(1)(d) satisfies the requirements of Chapter Six of the Constitution. Section 7(2)(a) holds a degree in a relevant discipline from a university recognized in Kenya; Section 7(2)(b) has had a distinguished career in his or her respective field; Section 7(2)(c) has at least seven years’ relevant professional experience; and Section 7(2)(d) satisfies the requirements of Chapter Six of the Constitution. Section 7(3) The members shall elect the vice-Chairperson from among the members appointed under section 6 (f).

Section 8. Disqualification from appointment Section is a member of Parliament or a County Assembly;

Section 9. Tenure and vacation of office Section 9(1) The Chairperson and members of the Board under section 6 (a) and (f) shall be appointed for a term of three years on such terms and conditions as may be specified in the instrument of appointment and shall be eligible for re-appointment for one further term of three years. Section 9(2)(a) the Board recommends to the Cabinet Secretary the removal of the member on the ground of misconduct or poor performance; Section 9(2)(b) the member violates the provisions of the Public Officer Ethics Act (Cap. 185B); Section 9(2)(c) the member is absent from three consecutive sittings of the Board without the written approval of the Chairperson; Section 9(2)(d) the member resigns in writing to the Cabinet Secretary; Section 9(2)(e) the member dies; or Section 9(2)(f) the member is declared bankrupt.

Section 10. Powers of the Board Section supervise and offer guidance and strategic direction to the Agency;

Section 11. Conduct of business and affairs of the Board Section The Board shall conduct its affairs in accordance with the provisions of the First Schedule, but subject thereto, the Board may regulate its own procedure.

Section 12. Delegation by the Board Section The Board may, by resolution in writing, either generally or in any particular case, delegate to any committee of the Agency or to any member, officer, employee or agent of the Agency, the exercise of any of the powers or the performance of any of the functions of the Board under this Act.

Section 13. Executive Director of the Agency Section 13(1) There shall be an Executive Director of the Agency who shall be the Chief Executive Officer of the Agency. Section 13(2) The Board shall, subject to subsection (3), appoint the Executive Director after a competitive recruitment process on such terms and conditions as may be specified in the instrument of appointment. Section 13(3)(a) possesses a post-graduate degree in economics, international trade, trade law, customs or equivalent qualifications and has at least five years professional experience; or Section 13(3)(b) possesses a basic degree in a relevant field and has at least ten years professional experience in matters relating to trade and industry; and Section 13(3)(c) satisfies the requirements of Chapter Six of the Constitution. Section 13(4)(a) responsible to the Board generally for the functions of the Agency; Section 13(4)(b) an ex officio member of the Board who has no right to vote at any meeting of the Board; Section 13(4)(c) the secretary to the Board; Section 13(4)(d) subject to the directions of the Board, responsible for the day to day management of the affairs of the Agency; and Section 13(4)(e) responsi...

Section 14. Removal of the Executive Director Section 14(1)(a) inability to perform the functions of the office due to physical or mental incapacity; Section 14(1)(b) gross misconduct or misbehaviour; Section 14(1)(c) incompetence or neglect of duty; Section 14(1)(d) violation of the Constitution or any other law; or Section 14(1)(e) any other ground that would justify removal from office under the terms and conditions of service. Section 14(2)(a) sufficient notice of its decision and the grounds on which the decision is based; and Section 14(2)(b) an opportunity to challenge the grounds of the Board’s decision.

Section 15. Staff of the Agency Section The Board may appoint such officers or other staff as necessary for the proper discharge of the functions of the Agency, upon such terms and conditions of service as the Board may determine in consultation with the Salaries and Remuneration Commission.

Section 16. Common seal of the Agency Section The common seal of the Agency shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board.

Section 17. Protection from personal liability Section An officer, employee or agent of the Agency or any person acting on such officer’s, employee’s or agent’s directions is not personally liable to any action, claim or demand whatsoever for an act or omission by a member of the Agency or any officer, employee or agent of the Agency if the act or omission is done without malice for purposes of executing the functions, powers or duties of the Agency.

Section 18. Liability of the Agency for damages Section Despite section 17 , the Agency is liable to pay compensation or damages to any person for any injury to that person, that person's property or any of that person's interests where such injury, loss or damage is occasioned by the Agency, its agents or officers in the course of carrying out the lawful functions of the Agency.

Section 19. Funds of the Agency Section 19(1)(a) funds appropriated by the National Assembly for purposes of the Agency; Section 19(1)(b) moneys or assets as may accrue to or vest in the Agency in the course of the exercise of its powers or the performance of its functions under this Act or any other written law; Section 19(1)(c) sums as may be payable to the Agency pursuant to this Act or any other written law, or pursuant to any trust; Section 19(1)(d) any grants, gifts, donations or endowments received by the Board on behalf of the Agency; Section 19(1)(e) any other funds that may be received by the Agency from any other source; and Section 19(1)(f) fees from consultancy and other services by the Agency. Section 19(2) The Agency shall disclose details of the sources of its funds in its annual report.

Section 20. Financial year Section The financial year of the Agency shall be the period of twelve months ending on the thirtieth June in each year.

Section 21. Annual estimates Section 21(1) The Board shall, not less than three months before the commencement of each financial year cause to be prepared estimates of the revenue and expenditure of the Agency for that financial year. Section 21(2)(a) the payment of the salaries, allowances and other charges in respect of the members, staff and agents of the Agency; Section 21(2)(b) the payment of the pensions, gratuities and other charges in respect of retirement benefits to staff of the Agency; Section 21(2)(c) acquisition and the proper maintenance of the buildings and grounds of the Agency; Section 21(2)(d) the proper maintenance, repair and replacement of the equipment and other movable property of the Agency; Section 21(2)(e) the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment or in respect of such other matters as the Agency may deem fit; and Section 21(2)(f) any other expenditure necessary for the performance of the functions of the Agency. Section 21(3) The annual estimates shall be approved by the Board and be submitted to the Cabinet Secretary for approval before...

Section 22. Accounts and audit Section 22(1) The Board shall cause to be kept proper books and records of accounts of the income, expenditure, assets and liabilities of the Agency. Section 22(2)(a) a statement of income and expenditure of the Agency during that financial year; and Section 22(2)(b) a statement of the assets and liabilities of the Agency on the last day of that financial year. Section 22(3) The accounts of the Agency shall be audited and reported upon by the Auditor-General in accordance with the provisions of the Public Audit Act (Cap. 412B).

Section 23. Anti-dumping and countervailing measures Section 23(1)(a) in the case of goods dumped in Kenya, an antidumping duty in an amount equal to or less than the margin of dumping of the imported goods; and Section 23(1)(b) in the case of subsidized goods imported in Kenya, a countervailing duty in an amount equal to or less than the amount of subsidy on the imported goods. Section 23(2) Where a product is being imported in Kenya in such increased quantities and under such conditions as to cause or threaten to cause serious injury to a domestic industry that produces a like or a directly competitive product, the Cabinet Secretary may request the Cabinet Secretary responsible for finance to impose a safeguard measure. Section 23(3) The imposition of a safeguard measure under subsection (2) shall be done in accordance with provisions of this Act and the Schedules to this Act. Section 23(4) Where the Cabinet Secretary is required to act on the recommendation of the Agency to impose an antidumping, countervailing or a safeguard measure, the Cabinet Secretary shall take action on the recommendation within sixty days of receiving the recommendation. Section 23(5) Where the Cabinet S...

Section 24. Investigation and evaluation of alleged dumping and subsidized exports in Kenya Section 24(1) An application for or the conduct of the investigation or evaluations of alleged dumping or subsidized exports in Kenya shall be carried out in accordance with the procedure set out in the Second Schedule. Section 24(2) An application for the investigation or evaluation of alleged dumping or import of subsidized goods in Kenya may be made by the manufacturer of a like product or an authorized person.

Section 25. Investigation and evaluation of alleged increase in imports in Kenya Section 25(1) An application for investigation, the conduct of investigation or evaluation of imports that have caused or threaten to cause serious injury to an industry in Kenya shall be conducted in accordance with the procedure set out in the Third Schedule. Section 25(2) An application for the investigation or evaluation of imports that have caused or threaten to cause serious injury in Kenya may be made by a manufacturer of a like product, the official of an association of manufacturers in that industry or an authorised person.

Section 26. Power to obtain information Section The Agency may in writing and within a specified period direct any person to provide the Agency with any information relating to an investigation or evaluation in a form as may be prescribed by the Agency.

Section 27. Right to claim confidentiality Section 27(1) A person who has been directed to provide information to the Agency may identify all or any part of the information that the person provides to the Agency as confidential. Section 27(2) Where a person makes a claim for confidentiality under this section, such person shall do so in writing and set out the grounds for treating the information as confidential information. Section 27(3) The Agency shall take all measures to protect any person who gives information to it.

Section 28. Non-disclosure of confidential information Section 28(1) The Agency shall not disclose to any unauthorised person information that is confidential under this Act until the Agency determines the extent to which confidentiality shall be extended regarding the information. Section 28(2) Where the Agency finally determines the extent of the confidentiality of information, it may only disclose to unauthorised persons such information that has not been determined confidential under this section.

Section 29. Restricted use of information Section 29(1) Any decision of the Agency shall be in writing and shall state the reasons for the decision. Section 29(2) lf the reasons for a decision of the Agency reveal the use of confidential information, the Agency shall notify the person who provided the confidential information of the decision in writing and such notice shall include a copy of the decision. Section 29(3) The Agency shall give the notice in subsection (2) at least fourteen days before it publishes its decision. Section 29(4) A person notified by the Agency of a decision to disclose confidential information under this section, may apply to the High Court within fourteen days after receiving the notice for an order to protect the confidentiality of the information. Section 29(5) The Agency may not publish its decision until the High Court determines the application made under subsection (4).

Section 30. Appointment of investigating officers Section 30(1) The Board may appoint any person as an investigating officer and the appointment shall be published in the Kenya Gazette . Section 30(2) In the performance of their duties, the investigating officers appointed under subsection (1) shall possess and display upon request by any person official identification documents that identify them as investigating officers of the Agency. Section 30(3) During an investigation, the Agency may enlist the support of police officers where necessary.

Section 31. Investigation Section 31(1) An investigating officer may question any person under oath or affirmation during the course of an investigation. Section 31(2) A person questioned by an investigating officer may be accompanied by a legal representative. Section 31(3) An investigating officer may summon any person to provide information on the subject of the investigation at any point during an investigation or to deliver to the investigating officer or to produce any book, document or any other object or information referred to in the summons at a time and place as may be specified in the summons. Section 31(4)(a) accept any relevant information either in oral or written form from any person; Section 31(4)(b) it is given or proven under oath or affirmation; or Section 31(4)(b)(i) it is given or proven under oath or affirmation; or Section 31(4)(b)(ii) would be admissible as evidence in a court of law; or Section 31(4)(c) refuse to accept any information, document or other thing that is unduly repetitious. Section 31(5) Where the investigating officer receives oral information under subsection (4), the investigating officer shall set down the information in writing as soon a...

Section 32. Response to investigation Section 32(1) A person shall be required to respond to an investigating officer honestly. Section 32(2) Despite subsection (1), a person shall not be required to respond if such response would be an admission of the commission of an offence by that person.

Section 33. Power to enter and search under warrant Section 33(1) A court may issue a warrant to an investigating officer to enter and search any premises that are within the jurisdiction of that court if the investigating officer swears or affirms that there are reasonable grounds to believe that anything connected with an investigation in terms of this Act is in the possession of or under the control of a person who is on or in those premises and such warrant may be issued in the absence of the person whose premises the investigating officer wishes to enter and search. Section 33(2)(a) specifically identify the premises that may be entered and searched; and Section 33(2)(b) authorize the named investigating officer to enter and search the premises and to do any other thing authorised to be done in the warrant. Section 33(3)(a) warrant is executed; Section 33(3)(b) warrant is cancelled by the court; Section 33(3)(c) purpose for issuing the warrant lapses; or Section 33(3)(d) expiry of one month after the date that the warrant was issued. Section 33(4) A warrant may be executed only during the day unless the court authorizes that it may be executed at night or at a time that is rea...

Section 34. Power to enter and search Section enter the premises mentioned in the warrant;

Section 35. Review Section Any person affected by a determination, recommendation or decision of the Agency or of the Cabinet Secretary may appeal to the High Court within thirty days of the determination, recommendation or decision being made for a review.

Section 36. Variation or setting aside of determination, recommendation or decision Section where there is an ambiguity, obvious error or an omission in the determination, recommendation or decision. In such cases, the variation or setting aside shall only be to the extent of correcting the ambiguity, error or omission; or

Section 37. Standard of proof Section In any proceedings under this Act, other than criminal proceedings, the standard of proof is on a balance of probabilities.

Section 38. Breach of confidence Section 38(1)(a) in carrying out any function or exercising any power under this Act; or Section 38(1)(b) as a result of initiating a complaint or participating in any proceedings under this Act. Section 38(2)(a) for the purpose of the proper administration or enforcement of this Act; Section 38(2)(b) for the purpose of the administration of justice; Section 38(2)(c) at the request of the Executive Director or an investigating officer entitled to receive the information; or Section 38(2)(d) that shall be disclosed under this Act.

Section 39. Hindering administration of Act Section A person commits an offence if that person hinders, obstructs or unduly influences any person in the exercise of a power or the performance of a duty under this Act.

Section 40. Failure to attend when summoned Section fails, without sufficient cause, to appear at the time and place specified or to remain in attendance until excused; or

Section 41. Penalty Section Any person convicted of an offence under this Act, where no penalty is provided for, is liable to a fine not exceeding five million shillings or to imprisonment for a period not exceeding five years, or to both.

Section 42. Regulations Section 42(1) The Cabinet Secretary may in consultation with the Agency, make regulations for the better carrying into effect the provisions of this Act. Section 42(2)(a) the purpose and objective of the delegation under this section is to enable the Cabinet Secretary to make regulations to provide for the better carrying into effect the provisions of this Act; Section 42(2)(b) the authority of the Cabinet Secretary to make regulations under this Act will be limited to bringing into effect the provisions of this Act and the fulfilment of the objectives specified under this section; Section 42(2)(c) the principles and standards applicable to the regulations made under this section are those set out in the Interpretation and General Provisions Act ( Cap. 2 ) and the Statutory Instruments Act (Cap. 2A).