Scrap Metal Act

Section 1. Short title Section This Act may be cited as the Scrap Metal Act.

Section 2. Interpretation Section pack in drums or other containers; or

Section 3. Establishment and incorporation Section 3(1) There is established the Scrap Metal Council. Section 3(2)(a) suing and being sued; Section 3(2)(b) purchasing or otherwise acquiring, holding or disposing movable or immovable property; and Section 3(2)(c) doing or performing all things or acts for the furtherance of the provisions of this Act which may be lawfully done or performed by a body corporate.

Section 4. Composition of the Council Section 4(1)(a) a Chairperson appointed by the Cabinet Secretary who has at least five years' experience in the public or private sector; Section 4(1)(b) the Principal Secretary of the Ministry for the time being responsible for matters relating to transport or representative; Section 4(1)(c) the Commissioner General of the Kenya Revenue Authority or a representative; Section 4(1)(d) the Inspector-General of Police or a representative; Section 4(1)(e) the Principal Secretary of the Ministry for the time being responsible for matters relating to industrialisation or his or her representative; Section 4(1)(f) one person nominated by the Scrap Metal Dealers Association; Section 4(1)(f)(i) one person nominated by the Scrap Metal Dealers Association; Section 4(1)(f)(ii) one person nominated by the metal cottage industry; Section 4(1)(f)(iii) one person nominated by the Kenya Association of Manufacturers; Section 4(1)(f)(iv) one person nominated by large utility companies or agencies in charge of infrastructure, to be appointed on rotational basis; Section 4(1)(f)(v) one person nominated by the Consumer Federation of Kenya. Section 4(2) The members o...

Section 5. Removal of Council members from office Section at any time resign from office by notice in writing to the Cabinet Secretary; or

Section 6. Functions of the Council Section 6(1)(a) the appropriate measures and mechanisms for regulating the scrap metal industry in ensuring economic growth, protection of public health and conformity to the principles of environmental stewardship as required by the Basel Convention; Section 6(1)(a)(i) the appropriate measures and mechanisms for regulating the scrap metal industry in ensuring economic growth, protection of public health and conformity to the principles of environmental stewardship as required by the Basel Convention; Section 6(1)(a)(ii) the appropriate measures and mechanisms for protecting public interest against vandalism, theft of utility infrastructure and private property; Section 6(1)(a)(iii) the methods of attracting investors on the utilization of excess scrap materials and supporting existing users of scrap metal; Section 6(1)(a)(iv) the applicable licence fees to be prescribed under this Act; and Section 6(1)(a)(v) any other matter relevant to the operations of this Act. Section 6(1)(b) receive, vet and process all applications for the grant and renewal of licences. Section 6(1)(c) receive public complaints and disputes from the public and within the s...

Section 7. Business affairs of the Council Section 7(1) The conduct and regulation of the business and affairs of the Council shall be as provided for in the First Schedule but subject thereto, the Council may regulate its own procedure. Section 7(2) The Ministry responsible for matters relating to industrialization shall provide secretariat services to the Council.

Section 8. Protection from personal Liability Section 8(1) No act or omission by any member of the Council or by any officer, employee, agent or servant of the Council shall, if the act or omission was done bona-fide for the purposes of executing a function, power or duty under the Act render such member, officer, employee, agent or servant personally liable to any action, claim or demand whatsoever. Section 8(2) The provisions of subsection (1) shall not relieve the Council of the liability to pay compensation to any person for any injury to him or her, his or her property or to any of his or her interests caused by the exercise of any power conferred by this Act or by failure, whether wholly or partially, of any action or omission.

Section 9. Restriction from dealing in scrap metal Section 9(1) A person shall not deal in scrap metal, unless that person has a licence issued by the Council and is a member of Scrap Metal Dealers Association. Section 9(2)(a) for a first offence to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years or both; and Section 9(2)(b) for a second or subsequent offence to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding five years or both.

Section 10. Application for licence Section 10(1) A person seeking a licence or renewal of a licence shall apply to the Council as provided in the Second Schedule. Section 10(2)(a) specify the name of the dealer; Section 10(2)(b) specify the premises in which the applicant intends to deal in scrap metal; and Section 10(2)(c) be accompanied by the prescribed fee. Section 10(3) The Council shall consider the application for the grant or renewal of a licence and shall approve or reject the application within thirty days from the date of application. Section 10(4)(a) if the applicant has been convicted of any offence under this Act at any time during the three years immediately preceding the date of the application; Section 10(4)(b) if the applicant has been convicted of any offence involving fraud or dishonesty at any time during the five years immediately preceding the date of the application; Section 10(4)(c) if the applicant is an un-discharged bankrupt or a company in liquidation; or Section 10(4)(d) if the applicant's premises are in the opinion of the Council unsuitable for dealing in scrap metal; or Section 10(4)(e) in the case of renewal of a licence, if the applicant does not...

Section 11. Issue of licence Section be issued in the form prescribed in the Third Schedule;

Section 12. Appeal to Cabinet Secretary Section Where the Council refuses to issue or renew a licence, the applicant may appeal to the Cabinet Secretary.

Section 13. Licence not transferable Section 13(1) A licence shall not be transferable except with the consent of the Cabinet Secretary on the advice of the Council and shall authorize dealing at the specified premises. Section 13(2) Notwithstanding subsection (1), the Council may, on the application of a licensee and upon payment of the prescribed fee, vary a licence by substituting for the specified premises, other premises as provided in the Sixth Schedule and thereupon all the provisions of this Act shall apply to such premises. Section 13(3) Any licensee who contravenes this section commits an offence and is liable on conviction to a fine not exceeding three million shillings.

Section 14. Cancellation of licence Section the licensee becomes bankrupt, or, being a company, goes into liquidation; or

Section 15. Appeal to High Court Section A person whose licence has been cancelled by the Council may appeal to the Cabinet Secretary and if not satisfied by the decision of the Cabinet Secretary, may appeal to the High Court.

Section 16. Display of signboard Section 16(1) Every licensee shall conspicuously display a signboard within his or her premises the manner prescribed. Section 16(2)(a) bear the full name of the licensee: Section 16(2)(b) bear the words "LICENSED SCRAP DEALER" in capital letters; Section 16(2)(c) be in English or Kiswahili. Section 16(3) Subsections (1) and (2) shall not apply to a person who internally generates scrap metal as a result of their internal processes. Section 16(4) Any person who fails to comply with the requirements of subsections (1) or (2) commits an offence and is liable on conviction to a fine not exceeding two million shillings.

Section 17. Record by licensee Section 17(1) Every licensee shall prepare in duplicate, a record as prescribed in the Fourth Schedule or in such other form as the Cabinet Secretary may in any particular case approve, of each variety of scrap metal, which was at the date and time of the grant of the licence in the licensee's possession or under the licensee's control and shall sign the duplicate copy of the register and submit it to the Council within one month of the grant of the licence. Section 17(2) The record shall contain the weight, dimensions and general description of the scrap metal. Section 17(3) The licensee shall keep this record for a maximum of seven years. Section 17(4) Any licensee who fails to comply with this section commits an offence and is liable on conviction to a fine not exceeding two million shillings and where such offence continues after conviction, to a fine not exceeding two thousand shillings for each day in which such offence continues or until the licence is revoked.

Section 18. Register by licensee Section 18(1)(a) the weight, dimensions and general description of the scrap metal which from time to time come into the possession or control of the licensee and in respect of each item, the name of the person whether the licensee, servant or agent, who purchased, acquired or received the scrap metal, and the date and time of, and the consideration for the transaction, and the name, identity card number, address and telephone number of the person from whom the licensee, servant or agent purchased, acquired or received the scrap metal from; and Section 18(1)(b) the weight, dimensions and general description of the scrap metal which the licensee sells, disposes or which otherwise ceases to be in his or her possession or control, and showing in respect of each item, the date and time of the transaction and the name, identity card number, address and telephone number or other means of identification of the person to whom the licensee, servant or agent sold, disposed of or parted with possession or control of such scrap metal. Section 18(2) Every entry required to be made under subsection (1) shall be made within twenty-four hours of the time when the t...

Section 19. Presumption as to records Section Every entry required to be prepared or kept under section 17 or section 18 of this Act shall be deemed, unless the contrary is shown, to have been made with the authority of the respective licensee.

Section 20. Restriction on licensees Section 20(1)(a) except between the hours of half-past six o'clock in the morning and half-past six o'clock in the evening; Section 20(1)(b) with any person under the age of eighteen years, whether that person is acting or purporting to act on his or her own behalf or on behalf of another person; or Section 20(1)(c) with any person who does not satisfy the licensee as to his or her identity. Section 20(2) A licensee shall not store or deal in any scrap metal elsewhere other than at the specified premises; unless the licensee is authorized by the Council. Section 20(3) A variation of the licence shall be in the form prescribed in the Sixth Schedule Section 20(4) Any licensee who contravenes this section commits an offence and is liable on conviction to a fine not exceeding one million shillings and, where such offence continues after conviction, to a fine not exceeding two thousand shillings for each day in which such offence continues or until the licence is revoked.

Section 21. Restriction on disposing or changing the form of scrap metal Section 21(1)(a) dispose of; Section 21(1)(b) disfigure or in any way change the form or shape of; or Section 21(1)(c) bale any scrap metal within seven days of acquiring possession or control of the scrap metal except with the written permission of the Principal Secretary. Section 21(2) Any person who contravenes sub-section (1) commits an offence and is liable on conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years or to both.

Section 22. Information regarding stolen or lost property Section 22(1)(a) name; Section 22(1)(b) identity number; Section 22(1)(c) telephone number; and Section 22(1)(d) address of the person from whom he or she acquired or saw such property. Section 22(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding one year or to both.

Section 23. Scrap metal of unknown origin Section 23(1) No person whether a licensee, servant or agent shall allow scrap metal whose origin is unknown into his or her possession whether in the licensed premises or otherwise. Section 23(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding seven years or to both.

Section 24. Destruction of infrastructure Section 24(1) A person shall not remove, deface or destroy any scrap metal from the infrastructure designed for roads, bridges, railways, pipelines, telecommunication, electricity, water and sewerage, or any government infrastructure project. Section 24(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years or to both.

Section 25. Forfeiture of scrap metal Section 25(1) Subject subsection (3), an inspector may seize any scrap metal whose ownership is undetermined and shall within a period of fourteen days present it before a Court and if the Court is satisfied that the owner cannot be found, declare it forfeited to the State. Section 25(2) A Court may order that any scrap metal in respect of which an offence has been committed under this Act shall be forfeited to the State. Section 25(3) Where the Court intends to make an order of forfeiture, the inspector shall issue the notice prescribed in the Seventh Schedule to the person from whom the scrap metal was seized from. Section 25(4) An order for the forfeiture of scrap metal under subsection (1) or subsection (2) may be a conditional order, and upon a conditional order being made, the Court shall direct an inspector to advertise the order in the Gazette . Section 25(5)(a) the person has a lawful title to the scrap metal or part thereof in respect of which the conditional order of forfeiture has been made; or Section 25(5)(b) the personas not involved in the commission of the offence in respect of which such order was made,

Section 26. Exports of scrap metal Section 26(1) A person shall not export scrap metal in any form. Section 26(2) Notwithstanding subsection (1), the Cabinet Secretary for matters relating to finance, in consultation with the Cabinet Secretary responsible for industrialization and with the recommendation of the Council, may, under such circumstances as may be prescribed, authorize the export of specific scrap metal for a specified period. Section 26(3) A certificate for each consignment shall be issued by the Principal Secretary. Section 26(4) Any exemption allowed under this section shall be valid for six months from the date of issue of the certificate of exemption. Section 26(5) Any person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding five years or to both.

Section 27. Actions by agents or servants Section 27(1) Where any act or thing is done or omitted to be done by an agent or servant employed by a licensee who, if done or omitted by such licensee would constitute an offence under this Act, such licensee shall be personally liable for such offence as if the act or omission was occasioned by the licensee. Section 27(2) Every agent or servant employed by a licensee who in the course of business does or omits to do anything which would under this Act constitute an offence if done or omitted by a licensee commits an offence and is liable on conviction to the punishment prescribed under this Act.

Section 28. Offence committed by a company, cooperative society or other person Section Where an offence under this Act committed by a company, cooperative society or other body of persons, corporate or not corporate, is proved to have been committed with the consent of or to have been facilitated by the neglect of any director, Chairperson, manager, secretary or other officer of the company, co-operative society or other entity, the director, Chairperson, manager, secretary or other officer of the company as well as the company, cooperative society or other entity, shall upon conviction be liable to the punishment prescribed under this Act.

Section 29. Appointment of inspector Section 29(1) The Cabinet Secretary shall, for purposes of enforcing the provisions of this Act, appoint such number of inspectors with adequate training in metallurgy or a related field of study, as the Cabinet Secretary may consider appropriate and shall issue to such inspectors, certificates of authority to act as scrap metal inspectors. Section 29(2)(a) shall hold office subject to such terms and conditions as the Cabinet Secretary may determine; Section 29(2)(b) shall have police powers in the exercise of his or her duties under this Act; Section 29(2)(c) may subject to the direction of the Director of Public Prosecutions summon, examine witnesses under oath or affirmation and conduct prosecutions for offences committed under this Act. Section 29(3) The Cabinet Secretary may designate other public officers to be inspectors for purposes of this Act. Section 29(4) The Cabinet Secretary may amend or withdraw the appointment of inspectors under this section. Section 29(5) The appointment of inspectors under this section shall be by notice in the Gazette for a renewable period of three years.

Section 30. Power of entry Section 30(1)(a) enter upon and inspect any place, premises or vehicle at, on or in which goods that are reasonably suspected of being stolen scrap metal or vandalized infrastructure are to be found and make a record as provided in the prescribed form; Section 30(1)(b) take the steps that may be reasonably necessary to terminate the deal or transaction on vandalized or stolen scrap metal at, on or in such place, premises or vehicle, and to prevent the recurrence of any such act in future: Section 30(1)(c) seize, detain, and, where applicable, remove for detention, all the scrap metal found at, on or in such place, premises or vehicle or other modes of conveyance; Section 30(1)(d) seize detain, and, where applicable, remove for detention, any tools which may be used in processing such scrap metal; Section 30(1)(e) question that person and take down a statement from that person; Section 30(1)(e)(i) question that person and take down a statement from that person; Section 30(1)(e)(ii) demand from that person any book, document, article, item or object which in any way may assist in identifying the location, source or destination of the scrap metal, or the ide...

Section 31. General penalty Section A person who commits an offence under this Act for which no penalty is specifically provided, is liable to a fine not exceeding two hundred thousand shillings or for a term not exceeding three months or to both.

Section 32. Power to make rules Section 32(1) The Cabinet Secretary may on the recommendation of the Council make rules for the better carrying out of this Act. Section 32(2)(a) prescribing the forms to be used under this Act; prescribing the fees to be charged under this Act; Section 32(2)(b) prescribing the manner and particulars of the signs and notice boards that are required to be displayed by licensees; Section 32(2)(c) prescribing the manner in which scrap metal forfeited under this Act shall be disposed of; and Section 32(2)(d) generally for the carrying out of any of the purposes of this Act.