Standards (Amendment) Act (No. 7 of 2004)

SPECIAL ISSUE Kenya Gazette Supplement No. 88 (Acts No.7) RIJPUDLIC 01' KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2004 = NAIROBI, 3rd January, 2005 CONTENT Act- PAGE The Standards (Amendment) Act. 2fX}4•.•••••••••••••••••••••••••••••••••••••••.••......••••••••••••••••227 Short title and commencement. Amaldmcntof section 2 of Cop. 496. of section lOB of Cop. 496. Of .moa. Il of Cop. 496. 227 THE STANDARDS(AMENDMENT) ACf.2004 No. 70'2004 Date ofAssent: 31st December, 2004 Date ofCommencement: By Notice AN ACT of Parliament to amend the Standards Ad to provide for a Standards Tribunal, the makIDg of orden to destroy lloods in certaiD eases and certain other matten ENACTED by the Parliament ofKenya as follows: I. This Act may be cited as the StaDdards (Amendment) Act, 2004 and shall come ioto operation on such date as the Millj~- may, by notice: ill the Gazeue, appoint. 2. Section 2 of the Standards Act is amended by inserting the following new definition sfter the definition of "standardization inark": "Tribunal" means IbeS Tribunal established undersection 16A. 3, Section lOB of the Standanls Act is amended by inserting the following new sobsection sfter sobsection (4): (5)Any penon who is aggrieved by an act or decision under a staDdards levy order may appeal in writingto the Tribunal. 4. The Stand8tdS Act is amended by deleting """liun II sod sobstitoting therefor the following new section: 11. Any penon who i. aggrieved by a decision of the Bureau or the Council may within fourteen days of the notification of the act complained of being received by him, appeal in writing to the Tribunal. No.7 228 Standards (Amendment) 2004 Amendment of section 14 of Cap. 496. 5. Section 14 of the Standards Act is amended by inserting the following new subsection after subsection (4): (5) In this section Cap. 472. "premises" includes an aircraft, vehicle or vessel, all within the meaning of section 2 ofthe Customs and Excise Act. Insertion of section 14A into Cap. 496. 6. The Standards Act is amended by inserting the following new section after section 14: Orderthat goods be destroyed. 14A.(I) An inspector may order the destruction of goods detained under section 14(1) if the following conditions are satisfied» (a) testing indicates that the goods do not meet the relevant Kenya Standard; and (b) it is reasonably necessary to destroy the goods because the goods are in a dangerous state or injurious to the health of human beings, animals or plants. (2) In an order under subsection (I) the inspector may require the owner of the goods to pay the costs of the destruction of the goods including the costs of transporting and storing the goods before destruction. (3) At least fourteen days notice shall be given ofan order under subsection (1) either by giving the owner of the goods a written notice or by publishing a written notice in the Gazette. 2004 Cap.412. 229 Standards (Amendment) (4) Any person who is aggrieved by an order under ~nn~entlnn (1) m::loY, within fourteen days of the notice of the order under subsection (3), appeal in writing to the Tribuna!. (5) An order under subsection (1) shall not be carried out until the time for appealing to the Tribunal has expired and, if the order is appealed, the order shall not be earned out until the Tribunal has dealt with the appeal. (6) If the goods in respect of which an order under subsection (1) is made have not beenentered into Kenya within the meaning of the Customs and Excise Act the goods may be exported and, if the owner of the goods gives an undertaking to export the goods, the order shall not be carried out until at least thirty days after the notice of the order under subsection (3). (7) No inspector shall be personally liable for making an order under subsection (I) in good faith. (8) No person shall be personally liable for carrying out an order under subsection (1) In good faith. (9) For greater certainty, subsections (7) and (8) do not relieve the Bureau of any liability it may have with respect to an order that is made or carried out otherwise than in accordance with this section. (10) For the purposes of carrying out No,7 No. 7 230 Standards (Amendment) 2W4 his duties under the Act, every inspector shall have the powers, rights and privileges specified in section 14 and the protectionofa police officer. (II) An inspector who (a) directly or indirectly solicit for, or receives in connection with anyofhisduties,a~ymmtor other reward whatsoever, whether pecuniary or otherwise, or a promise or security for any such payment or reward not being a payment or reward which he is lawfully entitled ro claim; or (h) enters into any agreement to do. abstain from doing, permit, conceal or connive at any act whereby the Bureau is or may be defrauded, or which is contrary to the provisions ofthis Act or the proper execution of the; duty ofthat officer; or (c) discloses, except for the purposes of this Act or when requiredto do so asa witness in a court of law or with the approval of the Director, infonnation acquired by him in the performance of his duties relating to a person, finn or bueineee of any kind; or (d) uses his position to improperly enrich himself or others. 231 SrmuIords (AIM-J No.7 shall be guilty of m offence md liable to imprisonment fOT II term not ~c.~~Ul\g nve years or to a fine not cxrcwling one million shillings or both md any money. property or reward obtained liaudulently or my property acquired usiag money obtained fraudulently shall be forfeited to the Government. (12) A person who, with the intention ofdefrauding the Bureau (a) directly or indirectly offers to give an inapector • payment or reward, wbether pecwUlIIY or otberwiae. or makes a promise or security for any such payment or reward; or (b) promises or enters Into m agreement with an inapector in order to indute him to do, abstain :&om. doing. permit" conceal or connive at, any act Whereby the Bureau may be deliauded, or which is contrary to the provisions of this Act for the properexecution ofthe dutyofthat inapector, .w.n be lIuilly or lUl ot'l\mec and ~I. to imprisonment as pzeserihed under subsection (II). No. 7 232 Standards (Amendment) Conditional release 14B(I) An inspector may order the conditional release of goods to a manufacturer, importer, possessor, dealer or seller or his agent pending the testing of the samples of goeds to detennioe whether they comply with the relevant Kenya Standard. (2) Where the goods are in the custody and possession of the manufacturer, importer, dealer seller or his agent, an inspector may require and order the manufacturer, importer, dealer, seller or agent to retain possession of the goods pending the testing of samples and release ofthe teet results. (3) Where the goods are released under subsection (l) or retained under subsection (2), the inspector shall ensure that the samples are tested and the results thereof released to the manufacturer, importer, possessor, dealer, seller or agent within fourteen days after the testing period of suchsamples. (4) Where the goods are found to comply with the relevant Kenya Standard, they shall be released to the manufacturer, importer. possessor. dealer or seller forthwith. (5) where the goods fail to comply with the relevant Kenya Standard, they shall be destroyed in accordance with Section 14A. 2004 Amendment of section 15 of Cap, 496. Insertion of Part IVA into Cap. 496. 233 Standards (Amendment) No.7 (6) Any person who removes, sells, uses, disposes off, re-exports, damages, wastes. destroys or in any Marmer deals with the goods specified in subsection (2) before the release of the results shall be guilty of an offence. (7) Goods of a perishable nature shall notbe subject to conditional release 7. Section l5(l} of the Standards Act is amended (a) by deleting the words "five hundred thousand" and substituting therefor the words "one million", (b) by deleting the words "twenty thousand" and substituting therefor the words "one hundred thousand", 8. The Standards Act is amended by inserting the following new Part after section 16: PART IVA - STANDARDS TRIBUNAL Establishtrlent of Tribunal. 16A.(1) The hereby established. Standards Tribunal IS (2) The Tribunal 5hA11 consist or a Chairman and four other members, appointed by the Minister. (3) To be appointed as the Chairman, a person must have one of the following qualifications: No. 7 234 Slwldtudsr J 2004 (a) the person must be an advocate ofat least seven years' standing; or (b) the person must have been a judse of the High Court. (4) Of the four membera of the Tribunal appointed under subsection 2. one peraon shaI1 be a peraon with knowledge lIIId experience in matters relating to customs and excise, and the other three members shall be pen;ons wilb knowledge lIIId experience in matters relating 10 standardisation. (5) No member of the Council or employee oflbe Bureau may be appointed as a memberoflbe Tribunal. (6)The Minister shall appoint a lesaJ officer1iom the Attorney-General's Chambera to be the secretary to IbeTribunal. (7) The Chairman lIIId membera of the Tribunal sball serve for a term of five y= and shallbe eligible for re-appoinbnent. (8) The Minist.. may terminate the appoinbnenl of the Chairman or any member of the Tribunal if a tribunal appointed onder Ibisaectioll finds that the Chairman or member oflbe Tribunal: (a) is unable to perform the I\mctions ofIlls omce by reason ofa lIIentai or physical infirmity; N0.4of2003 No.4 of 2003 235 SlaIUJards (Ame1Klmenl) (b) has been involvedin corruption as defined in the Anti-Corruption and Bconomlc crimes Act; Or (c) has been declared bankrupt; (9) The Council may request the Minister to appoinl a conduct tribunal if in the Council's opinion the Chairman or memberofthe Tribunal: (a) is unableto performthe functions of hia office by reason of a menW or physical infirmity; or (b) il iuvulvtd in ccnupuen q defined by the Anti-Corruption and Economic CrimesAct. (10) Upon receiving a request under subsection (9) (a) the Minister may suspend the Chairman or member of the Tribunal pending the final rcaolulibn oftbo malta; and (b) shall appoint a conduct tribunal of three J1"!IODl' one of whom th. Minister sball designate as cbainnan. (11) Each member of the Conduct Tribunal sball be a person qualified 10 be appointed as a judgeofthe HighCourt. No.7 Remuneration ond allowances of memben. Powerson appeal. Reference to Tribunal 236 Standards (Amendment) 2U04 (12) The Conduct Tribunal shall conduct an inquiry into thematters specified in subsection (9), In accordance with such procedures as the conduct tribunal may detennine and in accordance the rules of natural justice. (13) Within thirty days after concluding its inquiry. the Conduct Tribunal sball publicly announce its findings and reasons thereof, and submit a report to the Minister. 16D. The Minister shall pay the members of the Tribunal such remuneration and allowances as the Minister determines. 16C. Upon an appeal under this Act, the Tribunal may confirm. set aside nr vary the decision or' act inquestion and may make such other order as the Tribunal considers appropriate. including an order with respect to the paymetttofcosts. 161).(1) Ifa matter appears to involve a point of law or to be of unusual importance ur complexity the Director mayrefer the matter to the Tribunal for a general direction. (2) The Director shall give notice of the reference to any party to the matter and that party shall he entitled to be heard by the Tribunal. (3)The Bureau and the Director shall be bound by the directions of the Tribunal on it. reference, subject to any appeal to the High Court. 2004 Appointment ofexpert adViGOR. Appeal from Tribunal to Court Procedure of Trilmna) 237 Standards (Amendment) 16F.(I) The Chairman of the Tribunal may appoint an advisor from a panel ofpersons with expert knowledge in matters relating to standards to assist in the detennination of a matter before the Tribunal. (2) No member of the Councilor employee of the Bureau may be appointed as an advisor. 16G. A party to proceedings before the Tribunal may appeal the decision of the Tribunal to the High Court. 16H.(I) Tbe Minister may make rules for regulating the pracuce ami procedure ufdu::: Tribunal. (2) Subject to the nllp.~ rnade under subsection (I). the Tribunal may regulate its own procedure. No.7