KENYA PORTS AUTHORITY ACT

Transcription

1 LAWS OF KENYA KENYA PORTS AUTHORITY ACT CHAPTER 391 Revised Edition 2014 [2012] Published by the National Council for Law Reporting with the Authority of the Attorney-General

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3 [Rev. 2014] CAP. 391 CHAPTER 391 KENYA PORTS AUTHORITY ACT ARRANGEMENT OF SECTIONS PART I PRELIMINARY AND INTERPRETATION Section 1. Short title. 2. Interpretation and application. PART II ESTABLISHMENT OF THE AUTHORITY 3. Establishment and incorporation of the. PART III MANAGEMENT OF THE AUTHORITY 4. Board of Directors. 5. Managing Director. 6. Remuneration of Directors of the Board. 7. Further provision as to the Board. PART IV FUNCTIONS AND POWERS OF THE AUTHORITY, ETC. 8. General duty of the Board. 9. Powers of Managing Director. 10. Powers of the Board. 11. Powers of the Minister. 12. Powers of the Authority as a statutory body. 13. Acquisition of land for the purposes of the Authority. 14. Power to enter and survey land. 15. Power to enter land to prevent accidents, etc. 16. Power to enter land to alter position of pipes, etc. 17. Power to take water. PART V FINANCIAL PROVISIONS 18. Principles of operation. 19. Borrowing powers. PART VI ACCOUNTS AND REPORTS 20. Annual accounts. 21. Annual report and financial year. PART VII RESPONSIBILITY AS A WAREHOUSEMAN 22. Liability for loss of goods, etc. 23. Limitation of liability for loss, etc., of goods deposited in cloakroom. PART VIII OPERATION OF THE AUTHORITY Goods 24. Authority may determine conditions for handling and warehousing of goods. 25. Description, etc., of goods to be delivered. K18-3 [Issue 1]

4 CAP. 391 [Rev. 2014] Section 26. Goods may be sold to pay rates, etc. 27. Unclaimed goods in possession of the Authority. 28. Indemnity where goods claimed by two persons, etc. 29. Dangerous or offensive goods, etc. General 30. Authority to prepare Tariff Book, etc. Accidents 31. Accidents to be reported. 32. The Board may order inquiry, etc. 33. Shipping casualties. PART IX CONTROL OF PORTS 34. Port limits. 35. Power to amend the Second Schedule. 36. Compulsory pilotage ports. 37. Passengers, etc., to be embarked, etc., only at a port. 38. Master to supply information, etc. 39. Port rates may be levied. 40. Power to arrest ship for port charges. 41. Refusal of outward clearance. 42. Powers of authorized employee in relation to a port. 43. Powers of health officers in a port. 44. Authority may retain goods until freight, etc., paid. 45. Liability for demurrage. 46. Master responsible for contravention of Act, etc., in respect of ship. 47. Act to be available to master. PART X PROVISIONS RELATING TO OFFENCES 48. Major offences. 49. Minor offences. 50. False returns. 51. Unlawfully transporting dangerous goods. 52. Offences by master of vessel. 53. Navigating without pilot in compulsory pilotage port. 54. Employee endangering safety. 55. Employee demanding improper amount. 56. Arrest of employee. 57. Power of arrest, removal and place of trial. PART XI MISCELLANEOUS Staff 58. Appointment of staff. 59. Property of the Authority in custody of employee, etc. 60. Regulations relating to staff. [Issue 1] K18-4

5 [Rev. 2014] CAP. 391 Legal Provisions Section 61. Delegation and signification. 62. Compensation. 63. Liability for damage caused by fire. 64. Burden of proof. 65. Notice of claim. 66. Limitation. 67. Restriction on execution against property of Authority. 68. Overcharge and undercharge. 69. Medical examination of persons claiming compensation. 70. Service of notice, etc., on the Managing Director. 71. Service of notice, etc., by the Managing Director. Regulations 72. Regulations. 72A. Amalgamation with Kenya Cargo Handling Services Limited. PART XII APPLICATION OF LAWS OF THE COMMUNITY, TRANSITIONAL, SAVING, ETC. 73. Application of Community laws. 74. Transitional and savings. 75. Contracts, etc., on behalf of Authority before commencement of this Act. SCHEDULES FIRST SCHEDULE PROVISIONS AS TO THE BOARD AND THE AUTHORITY SECOND SCHEDULE K18-5 [Issue 1]

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7 [Rev. 2014] CAP. 391 CHAPTER 391 KENYA PORTS AUTHORITY ACT [Date of assent: 11th January, 1978.] [Date of commencement: 20th January, 1978.] An Act of Parliament to provide for the establishment of an Authority to be known as the, for the transfer to the Authority of the undertakings, within Kenya, of the East African Harbours Corporation, for the functions of the Authority and for purposes connected therewith [Act No. 2 of 1978, Act No. 12 of 1985, Act No. 9 of 1986, Act No. 11 of 1993, Act No. 18 of 2014.] 1. Short title PART I PRELIMINARY AND INTERPRETATION This Act may be cited as the Act. 2. Interpretation and application (1) In this Act, except where the context otherwise requires animals means animate things of every kind except human beings; authorized employee means an employee authorized by the Managing Director to exercise the powers or perform the duties in respect of which the expression is used; beacon means any light, mark or other structure, erected by the Authority for the purposes of navigation; Chairman means the Chairman of the Board appointed under section 4; charges means all sums received or receivable, charged or chargeable for, or in respect of, any ship or port or the handling or warehousing of goods by the Authority or for, or in respect of, any other service performed or facilities provided by the Authority; customs law means any law in force imposing or relating to the collection of customs or excise duties or transfer tax; employee means any person in the service of the Authority; ferry means any vessel plying within a port, or the approaches thereto, for the purpose of the carriage of passengers or goods; goods includes luggage, animals (whether alive or dead) and all other movable property of any description; Managing Director means the Managing Director of the Authority appointed under section 5; master in relation to a ship, means any person other than a pilot having charge of that ship; K18-7 [Issue 3]

8 CAP. 391 [Rev. 2014] perishable goods means goods liable to rapid deterioration and, in particular, means fish, fruit, vegetables, potatoes, plants, bread, meat, game, butter, eggs, milk, cheese, birds, poultry, small animals and any other thing which the Managing Director may by notice in the Gazette declare to be perishable goods; port means any of the ports set out in Parts I and II of the Second Schedule; port office means any office in a port where rates and charges may be paid to the Authority; the purposes of the Authority means any purpose necessary or desirable for the performance of the services, or the provision of any facilities, which the Authority is authorized to perform or provide under this Act; rates includes all sums which may, under the provisions of this Act, be levied for, or in respect of, any ship or port or the handling or warehousing of goods by the Authority or for, or in respect of, any other service performed or facility provided by the Authority; ship includes any vessel, tug, lighter, or boat of any kind whatsoever whether propelled by steam or otherwise or towed; Tariff Book means the tariff book published by the Authority under section 30; vehicle means any vehicle other than a ship; warehouse includes any building, place, wagon, ship or vehicle when used by the Authority for the purpose of warehousing or depositing goods; waterworks includes boreholes, wells, reservoirs, dams, weirs, tanks, cisterns, conduits, aqueducts, pipes, hydrants, taps, pumps, engines and all other structures, plant and appliances used or constructed for obtaining, storing, purifying, conveying, distributing, measuring or regulating water. (2) In this Act and in all documents issued under this Act, unless the context otherwise requires (d) premises occupied by the Authority means premises vested in or placed at the disposal of the Authority for the purposes of the Authority; property of the Authority means property vested in the Authority for the purposes of the Authority; the possession of the Authority means the possession by any employee in the course of his duty; accepted by the Authority means accepted by an employee or agent of the Authority for handling or warehousing by the Authority in accordance with the provisions of this Act: Provided that acceptance shall not be deemed to have been affected until a document of receipt in respect of the goods accepted, signed by an authorized employee or agent of the Authority, has been issued; [Issue 3] K18-8

9 [Rev. 2014] CAP. 391 (e) (f) operated by the Authority means operated by the Authority in accordance with the provisions of this Act; vehicle of the authority includes vehicles operated on behalf of the Authority. (3) This Act shall apply to inland waterways ports. [Act No. 18 of 2014.] PART II ESTABLISHMENT OF THE AUTHORITY 3. Establishment and incorporation of the (1) There shall be an Authority to be known as the, in this Act referred to as the Authority. (2) The Authority shall be a body corporate with perpetual succession and a common seal and shall have power to sue and be sued in its corporate name and to acquire, hold and dispose of movable and immovable property for the purposes of the Authority. (3) The headquarters of the Authority shall be at Mombasa. 4. Board of Directors PART III MANAGEMENT OF THE AUTHORITY There shall be a board of directors of the Authority, in this Act referred to as the Board, which shall consist of (d) (e) (f) 5. Managing Director a Chairman of the Board who shall be appointed by the Minister; the Managing Director; the Permanent Secretary of the Ministry for the time being responsible for Ports; the Permanent Secretary to the Treasury; the Managing Director of the Kenya Railways Corporation; and not more than six persons, not being public officers or employees of the Authority, to be appointed by the Minister by virtue of their knowledge of shipping and port operation or of commerce, industry, finance or administration generally. [Act No. 11 of 1993, Sch.] (1) There shall be a Managing Director who shall be appointed by the Minister after consultation with the Board and whose terms and conditions of service shall be determined by the Minister in the instrument of appointment or otherwise in writing from time to time. (2) Subject to this Act, the control and executive management of the Authority shall be vested in the Managing Director. K18-9 [Issue 3]

10 CAP. 391 [Rev. 2014] 6. Remuneration of Directors of the Board The Authority shall pay to the directors such remuneration, fees or allowances for expenses as may be determined by the Minister: Provided that no remuneration, fees or allowances shall be paid to any director who is a public officer in receipt of a salary. 7. Further provision as to the Board The First Schedule shall have effect with respect to the constitution or organization of the Board and otherwise in relation thereto. PART IV FUNCTIONS AND POWERS OF THE AUTHORITY 8. General duty of the Board (1) It shall be the duty of the Board to provide by means of the undertaking of the Authority a co-ordinated system of ports and facilities relating thereto. (2) The performance of the duty referred to in subsection (1) shall include a general duty to secure (d) (e) the fullest development, consistent with economy, of the undertaking of the Authority; that the undertaking of the Authority is operated efficiently, economically and with due regard to safety; that the financial administration of the Authority is conducted in accordance with Part V; that the Authority provides all reasonable facilities for handling and warehousing of cargo and other goods; and that no particular person or body is given any undue preference or is subjected to any undue disadvantage. 9. Powers of Managing Director Subject to the directions of the Board, the Managing Director may (d) (e) (f) establish and operate port services and facilities relating thereto; approve recurrent expenditure within limits determined by the Board; approve any individual capital work of which the estimated cost does not exceed four hundred thousand shillings or such other sum as the Minister may, by order, determine; approve any alteration in salaries, wages or other terms and conditions of service of employees not involving expenditure in excess of the limits determined by the Board within its powers under paragraph of section 10; approve any alteration in the establishment of the Authority other than an alteration involving a major reorganization or a substantial reduction in the number of employees; and allocate functions to employees. [Issue 3] K18-10

11 [Rev. 2014] 10. Powers of the Board CAP. 391 In the exercise of its duty under section 8, and subject to any directions of a general nature which may be given to it by the Minister, the Board may (d) (e) (f) (g) approve any minor alteration in the tariffs, rates, fares and other charges; approve any minor alteration in salaries, wages or other terms and conditions of service of employees of the Authority; approve any individual capital work for the purpose of the Authority, not included within a programme of works approved by the Minister, of which the estimated cost does not exceed five million shillings or such other sum as the Minister may, from time to time, by order determine; establish, from among its members, committees for the purposes of the Authority and delegate functions thereto; consider legislative proposals and recommend their enactment to the Minister; approve any alteration in the organization or establishment of the Authority other than an alteration referred to in section 9(e); and give directions to the Managing Director. 11. Powers of the Minister The Minister may (d) (e) (f) give directions of a general nature to the Board relating to the operation of the undertaking of the Authority; in consultation with the Minister responsible for Finance, approve any major alterations in the tariffs, rates, fares and other charges made for the services provided by the Authority; approve any major alterations in salaries, wages or other terms and conditions of service of employees; in consultation with the Minister responsible for Finance, approve any individual capital work, for the purposes of the Authority, of which the estimated cost exceeds five million shillings; give particular directions to the Board concerning any matter involving agreement with, or the interest of, any other country; and determine the limits of minor alterations for the purposes of paragraphs and of section Powers of the Authority as a statutory body (1) The Authority shall have power to maintain, operate, improve and regulate the ports set out in the Second Schedule; to construct, operate and maintain beacons and other navigational aids; to construct new ports; K18-11 [Issue 1]

12 CAP. 391 [Rev. 2014] (d) (e) (f) (g) (h) to carry on the business of stevedore, wharfinger or lighterman; to act as warehousemen and to store goods whether or not such goods have been or are to be handled as cargo or carried by the Authority; to the extent determined by the Minister, to act as carriers of goods or passengers by land or sea; to consign goods on behalf of other persons to any places whether within Kenya or elsewhere; to provide such amenities or facilities for persons making use of the services performed or the facilities provided by the Authority as may appear to the Board necessary or desirable. (2) Subject to this Act, the powers conferred by subsection (1) shall include all such powers as are necessary or advantageous and proper for the purposes of the Authority and in particular, without prejudice to the generality of the foregoing, shall include power (d) (e) (f) (g) (h) (i) (j) to construct any wharf, pier, landing stage, road, bridge, building or any other necessary or desirable works required for the purposes of the Authority; to clean, deepen, improve or alter any port or the approaches thereto; to provide and use, within ports and elsewhere, ships (i) (ii) for the towage, protection, or salvage of life or property; for the carriage of goods and passengers; to appoint, license and manage pilots; to control the erection and use of wharves in any port or the approaches thereto; to operate trains and road transport; to carry on any business necessary or desirable to be carried on for the purposes of the Authority and to act as agent for the Government in the provision of any agreed functions; to acquire, construct, manufacture, maintain, or repair, any waterworks or electric generating plant or any other works, plant or apparatus necessary or desirable for the supply or transmission of water or of electric energy to any person; to determine, impose and levy rates, fares, charges, dues or fees for any service performed by the Authority or for the use by any person of the facilities provided by the Authority or for the grant to any person of a licence, permit or certificate; to prohibit, control or regulate (i) (ii) the use by any person of the services performed, or the facilities provided, by the Authority; or the presence of any person, ship, vehicle or goods within any port or on any premises occupied by the Authority; [Issue 1] K18-12

13 [Rev. 2014] CAP. 391 (k) (l) (m) (n) (o) (p) (q) (i) (ii) (iii) (iv) to sell, let or otherwise dispose of any property, movable or immovable, which in the opinion of the Board is not necessary for the purposes of the Authority: Provided that the Authority shall not so sell, let or otherwise dispose of any building or land placed at its disposal by the Government otherwise than with the consent of, and under conditions agreed by, the Government; to provide houses and other accommodation for employees; to act as agent for any person engaged, whether within Kenya or elsewhere, in the performance of services, or the provision of facilities, of a kind similar or complementary to those performed or provided by the Authority; to enter into agreements with any person (i) (ii) (iii) for the supply, construction, manufacture, maintenance or repair by that person of any property, movable or immovable, necessary or desirable for the purposes of the Authority; for the performance or provision by that person of any of the services or the facilities which may be performed or provided by the Authority; for the payment, collection or apportionment of any fares, rates, charges or other receipts arising out of the performance or the provision by that person of any such services or facilities and, for such purposes, to finance or assist in financing the activities of the person whether by way of loan, the holding of stocks, shares or securities, the guaranteeing of interest or the retention of any stocks, shares or securities or otherwise; to enter into an agreement with any person carrying on business as a carrier of passengers or goods, whether within Kenya or elsewhere, providing for the carriage of passengers or goods by or on behalf of the Authority and of that person under one contract or at a through fare or rate; to hold shares in any corporation and to establish or acquire any subsidiary corporation; and to enter into any arrangement with the Kenya Railways Corporation which, in the opinion of the Board, will promote or secure the provision, or improved provision, of any service or facilities which they may separately provide and without prejudice to the generality thereof any such arrangement or agreement may include provisions relating to the use by either party of the facilities or equipment maintained by the other; the temporary employment of staff of one party by the other on secondment or otherwise; the charges made in respect of the use of any service or facility to which the arrangement or agreement relates; the financing of any project by either or both parties; K18-13 [Issue 1]

14 CAP. 391 [Rev. 2014] (v) (vi) research connected with any existing service or facility provided by either party or in relation to any service or facility under consideration; and the joinder in the arrangement or agreement by any other person. (3) For the avoidance of doubt, it is hereby declared that subsections (1) and (2) relate only to the capacity of the Authority as a statutory authority and nothing in those provisions shall be construed as authorizing the disregard by the Authority of any law. (4) The powers conferred on the Authority under this section to construct or improve any port shall empower the construction or execution of any works necessary thereto on land vested in the Authority or on land placed at its disposal by the Government for the purposes of the Authority or, in the case of land not so vested in, or placed at the disposal of, the Authority, only with the agreement of the owner of the land on which such works are to be constructed or executed, and where any land is required by the Authority for the purposes of the Authority, the Authority shall proceed in accordance with section Acquisition of land for the purposes of the Authority (1) Where land is required by the Authority for the purposes of the Authority, it may either if such land is not public land, acquire such land through negotiation and agreement with the registered owner thereof: Provided that, notwithstanding the provisions of section 6 of the Land Control Act (Cap. 302), the ensuing transaction shall not require the consent of a land control board if the land to be acquired is agricultural land; or if such land is public land, or if the Authority is unable to acquire it by agreement in accordance with paragraph of this subsection, notify the Minister responsible for public lands that the land specified in the notice is required for the purposes of the Authority. (2) When notice has been given under subsection (1), then if the land is public land, the Minister responsible for lands may, in his discretion and upon such terms and conditions as he may think fit, place such land at the disposal of the Authority for the purposes of the Authority; if the land is not public land, any provision in any written law which empowers the President or the Minister responsible for lands to acquire or direct the acquisition of such land for any specific purpose shall be deemed to include a power enabling the President or the Minister responsible for lands to acquire or direct the acquisition of such land for the purposes of the Authority. (3) Where any compensation is payable to any person in respect of any land, specified in the notice given under subsection (1), acquired by the President or the Minister responsible for lands, and such land after being so acquired is placed at the disposal of the Authority in accordance with subsection (2), the [Issue 1] K18-14

15 [Rev. 2014] CAP. 391 amount of compensation payable to that person, in accordance with the provisions of the law under which the land was acquired, shall be paid by the Authority. (4) The Authority may at any time convey, transfer or surrender any land surplus to both its existing and future requirements by a conveyance or a deed of surrender either for, or without, consideration: Provided that land which was public land or trust land shall be surrendered to the Government and shall not be conveyed or transferred to any other person unless the Minister responsible for lands shall consent and so direct. (5) The provisions of subsection (4) shall apply to land vested in the Authority by any written law, including this Act, as well as land conveyed to it or otherwise placed at its disposal. (6) In this section public land means all public land in Kenya, excluding trust land, which is vested in the Government for public purposes or for the purposes of the Authority or its predecessors in title and for the purposes of the proviso subsection (4) includes land previously so vested; trust land means land which is or which was previously vested in a County Council by virtue of section 115 of the Constitution or any previous written law. 14. Power to enter and survey land (1) Any authorized employee of the Authority may, for the purposes of the Authority, enter upon any land and survey such land or any portion thereof. (2) Where any damage to land is caused, by reason of the exercise of the powers conferred by this section, the owner or occupier of the land shall be entitled to compensation therefor in accordance with this Act. 15. Power to enter land to prevent accidents, etc. (1) Any authorized employee of the Authority may for the purposes of preventing the occurrence of any accident, preserving the safety of navigation or the safe operation of any service provided by the Authority, or repairing any damage caused by an accident, enter upon any land and cut down or remove any tree or other obstruction, not being a building, which obscures the view of any beacon or other fixed signal which is likely to cause any obstruction or any danger to the safety of navigation or of any such service; execute such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident. (2) If any tree or other obstruction cut down or removed under subsection (1) came into existence subsequent to the erection of any beacon or fixed signal or to the service being provided at that place, no compensation shall be payable in respect of such entry, or the cutting down or removal of such tree or other obstruction. K18-15 [Issue 1]

16 CAP. 391 [Rev. 2014] (3) Where any person erects any building which obscures the view of any beacon or other fixed signal or is likely to cause any obstruction or any danger to navigation or to the operation of any service provided by the Authority, the Authority may, unless such person has previously obtained the approval of the Managing Director to the erection of such building or has modified it to the satisfaction of the Managing Director, apply to a judge of High Court for an order for the demolition or modification of such building or, as the case may require, for the payment to the Authority of the cost incurred in resiting or replacing any fixed beacon, signalling or other equipment which is necessary to prevent such obstruction or danger and the Court, at its discretion, may grant such order and may make such order as to the payment of compensation and costs as it thinks fit. 16. Power to enter land to alter position of pipes, etc. (1) Subject to the provisions of this section the Authority, or any authorized employee, may, for the purposes of the Authority, enter upon any land and alter the position of any pipe for the supply of gas, oil, water or compressed air or the position of any electric, telephone or telegraphic wire or the position of any drain. (2) Where the Authority intends to exercise any power under subsection (1) it shall give reasonable notice of its intention so to do to the authority or person having control of the pipe, water or drain and such authority or person may authorize a representative to superintend such work and may require the Authority to execute such work to the satisfaction of such representative; the Authority shall make arrangements for the maintenance of the supply of gas, oil, water, compressed air or electricity, for the continuance of the telephone or telegraph communications or for the maintenance of the drainage, as the case may be, during the execution of such work. (3) Where any damage is caused by reason of the exercise of the powers conferred by this section, the person suffering such damage shall be entitled to compensation therefor in accordance with this Act. (4) This section shall not apply to any oil pipeline owned or operated by the Kenya Pipeline Company Limited. 17. Power to take water The Authority may, for its purposes, take any water from any natural watercourse subject if there is any law regulating the taking of any such water, to the provisions of that law; or if there is no such law, to the approval of the Minister responsible for Water Development. 18. Principles of operation PART V FINANCIAL PROVISIONS (1) It shall be the duty of the Authority to conduct its business according to commercial principles and to perform its functions in such a manner as to secure [Issue 1] K18-16

17 [Rev. 2014] CAP. 391 that, taking one year with another, its gross revenue is not less than sufficient to meet its outgoings which are properly chargeable to revenue account including proper allocations to the general reserve and provision in respect of depreciation of capital assets, pension liabilities and interest and other provision for the repayment of loans and further to ensure that, taking one year with another, its net operating income is not less than sufficient to secure an annual return on the value of the net fixed assets in operation by the Authority of such a percentage as the Minister may, from time to time, direct. (2) For the purposes of subsection (1) net operating income shall be determined by subtracting from gross operating revenue all operating and administrative expenses including adequate provision for maintenance and depreciation but excluding interest and other charges on debt; value of the net fixed assets in operation shall be the gross value of such assets less the amount of accumulated depreciation shown in the statement of accounts of the Authority: Provided that, if the amounts shown in such statements of accounts do not reflect a true measure of the value of the assets concerned because of currency revaluations, changes in prices or similar factors, the value of the fixed assets shall be adjusted adequately to reflect such currency revaluations, changes in prices or similar factors. (3) In the exercise of its duty under subsection (1), the Authority may, subject to any direction of a general nature which may be given to the Board by the Minister responsible for finance, invest moneys standing to the credit of the Authority in such securities as the Board thinks fit. 19. Borrowing powers (1) The Authority may borrow money by the issue of loan stock on such terms as may be approved by the Minister responsible for Finance. (2) The Authority may otherwise borrow money or obtain credit in Kenya or abroad for its purposes with the concurrence of, and subject to such limitations as may be imposed by the Minister responsible for Finance. (3) Such stock issued under the provisions of subsection (1), and such moneys borrowed or credit obtained under the provisions of subsection (2), as the Minister responsible for Finance shall approve for the purposes of this subsection, and all interest and other charges payable in respect of such stock, moneys or credit, shall, unless the instrument or note evidencing or supporting such borrowing shall otherwise provide, be charged upon all the property, undertaking and revenue of the Authority by operation of this section and without further charge or instrument. (4) Any stock issued by the East African Harbours Corporation which, by virtue of any order made under subsection (4) of section 74, becomes the liability of the Authority shall, subject to the terms of such order, be deemed to be stock issued by the Authority and shall be held in the same right and on the same trusts and subject to the same powers, privileges, provisions and charges as those in, on or subject to which such stock was issued. K18-17 [Issue 1]

18 CAP. 391 [Rev. 2014] (5) Except as provided in this section, the Authority shall not give or execute any mortgage or charge over any of its property or assign its property by way of security for borrowed money. 20. Annual accounts PART VI ACCOUNTS AND REPORTS (1) The Board shall ensure that proper accounts and other records are kept in relation to the revenue and expenditure of the Authority and shall ensure that within six months of the end of each financial year of the Authority or such longer period as the Minister may allow in any particular case, a statement of accounts of the Authority is prepared in accordance with the best commercial standards and any directions which may be issued by the Minister, and transmitted to the Auditor- General (Corporations). (2) The accounts of the Authority and of all officers and authorities of the Authority shall be audited by the Auditor-General (Corporations) and for that purpose the Auditor-General (Corporations) and any person authorized by him in that behalf, whether or not a public officer, shall have access to all books, records, returns and other documents relating to those accounts and upon receipt of a statement of accounts transmitted to him under subsection (1) the Auditor- General (Corporations) shall examine it, certify it and report on it and shall return the statement with his certificate and report to the Board within sufficient time to enable compliance with subsection (3). (3) Upon the return of the statement of accounts certified by the Controller and Auditor-General, and the receipt of his report thereon, the Board shall immediately transmit that statement of accounts and report to the Minister who shall cause the same to be presented to Parliament without delay and in any event before the expiry of nine months from the end of the financial year to which they relate or such longer period as the Minister may in any particular case allow. 21. Annual report and financial year [Act No. 12 of 1985, Sch.] (1) The Board shall, within nine months after the end of each financial year, prepare a report upon the operation of the Authority during that year and shall transmit such report to the Minister who shall cause the same to be presented to Parliament together with the statement of accounts and report of the Auditor- General (Corporations) referred to in section 20. (2) The financial year of the Authority shall run from the 1st January to the 31st December in each year. PART VII RESPONSIBILITY AS A WAREHOUSEMAN 22. Liability for loss of goods, etc. Subject to this Act or any contract, the Authority shall not be liable for the loss, misdelivery or detention of, or damage to, goods delivered to, or in the custody of [Issue 1] K18-18

19 [Rev. 2014] CAP. 391 the Authority except where such loss, misdelivery, detention or damage is caused by the want of reasonable foresight and care on the part of the Authority or any employee: Provided that: (i) (d) (e) (f) (g) (h) (i) (ii) the authority shall in no case be liable for such loss, misdelivery, detention or damage arising from an act of God; an act of war; a seizure under legal process; an act or order of the Government; an act or omission of the consignor, consignee, depositor or of the servant or agent of any such person; fire, flood, tempest, riots, civil commotions, strikes, lock-outs, stoppage or restraint of labour from whatever cause whether partial or general; an inherent liability to wastage in bulk or weight, latent or inherent defect, vice or natural deterioration; a deficiency in the contents of unbroken packages; or insufficient or improper packing or leakage from defective drums, containers or packages; the liability of the Authority for loss, misdelivery or detention of or damage to goods accepted by the Authority for warehousing in relation to which an account false in any material particular has been given under section 25 shall not in any case exceed the value of the goods as calculated in accordance with the description contained in such false account. 23. Limitation of liability for loss, etc., of goods deposited in cloakroom (1) The liability of the Authority for any loss or misdelivery of, damage to, or delay in the delivery of any goods deposited in a cloakroom shall not in any case exceed two hundred shillings unless at the time of such deposit the person depositing the goods declared that the value thereof exceeded that amount and paid, or agreed to pay, such additional charge as may be determined in the Tariff Book in respect of such excess value; and thereupon the liability of the Authority shall not in any case exceed such declared value. (2) For the purpose of this section the expression cloakroom means any place provided by the Authority as a facility, for the temporary deposit of goods by persons using the services provided by the Authority. PART VIII OPERATION OF THE AUTHORITY Goods 24. Authority may determine conditions for handling and warehousing of goods (1) The Authority may, subject to this Act determine the conditions upon which goods shall be handled or warehoused by the Authority and different conditions may be K18-19 [Issue 1]

20 CAP. 391 [Rev. 2014] determine the rates and charges for the handling or warehousing of goods and for any other service or facility; and such rates and charges shall be published in the Tariff Book and shall, subject as aforesaid, have effect from the date of such publication or from such later date as may be specified therein. (2) Notwithstanding subsection (1) the Authority may, in relation to the special circumstances or any particular case, determine conditions, rates and charges applicable to such case for the handling or warehousing of goods by the Authority or for any other service or facility and such conditions, rates and charges shall have immediate effect in relation to such cases: Provided that (i) (ii) such conditions, rates and charges shall, if they are of a continuing nature, be available to the public on request; the determination of such conditions, rates and charges shall not of itself constitute an undue preference under section 8(2)(e). 25. Description, etc., of goods to be delivered (1) The consignor of, or the person tendering, any goods to the Authority for handling or warehousing, and, on request by an authorized employee, the consignee of, or person receiving, any goods which have been handled or warehoused by the Authority shall deliver to an authorized employee an account in writing signed by such consignor, person or consignee, as the case may be, containing such description of the goods as may be sufficient to enable such employee to determine the rates and charges payable in respect of the handling or warehousing thereof by the Authority. (2) Any authorized employee may, for the purpose of checking any account delivered under subsection (1), require such consignor, person or consignee, as the case may be, to permit him to examine such goods. (3) If such consignor, person or consignee fails to deliver the account referred to in subsection (1) or to permit such goods to be examined as required under subsection (2), an authorized employee may refuse to accept the goods for such handling or warehousing unless in respect thereof a rate or charge not exceeding the highest rate or charge payable for any class of goods is paid; or in respect of goods which have been handled or warehoused the Authority may refuse to deliver such goods unless in respect thereof a rate or charge not exceeding such highest rate or charge is paid. (4) If, in respect of goods which have been handled or warehoused by the Authority, an account delivered under subsection (1) is found to be false in any material particular with respect to the description of any goods to which it purports to relate, an authorized employee may refuse to deliver such goods unless, in respect of the handling or warehousing of such goods, a rate or charge not exceeding double the highest rate or charge payable for any class of goods is paid. [Issue 1] K18-20

21 [Rev. 2014] CAP Goods may be sold to pay rates, etc. (1) Where any person fails to pay on demand made by an authorized employee any rate or charge due from him in respect of any goods, the Authority may detain the whole or any part of the goods or, if they have been removed from the possession of the Authority, any other goods of such person which may be in, or may thereafter come into, the possession of the Authority. (2) Where any goods have been detained under subsection (1), the Authority may, if the rate or charge due is not sooner paid, sell by public auction sufficient of the goods to produce the rate or charge so owing and all the expenses of such detention and sale; and in the case of perishable goods, such auction may take place at once; or any other goods, such auction may take place on the expiration of at least fifteen days notice published in one or more local newspapers, of the intended auction: Provided that no imported goods shall be sold under this section until they have been entered for home consumption in accordance with the provisions of the customs law. (3) The Authority may, out of the proceeds of any sale effected under subsection (2), retain a sum equal to the rate or charge due and the expenses of the detention and sale; and shall deliver the balance, if any, of such proceeds together with such of the goods, if any, as remain unsold to the person appearing to the Managing Director to be entitled thereto: Provided that if such person fails, after notice so to do, to remove within a reasonable time the goods, if any, remaining unsold, the Authority may sell such goods, and dispose of the proceeds of such sale in accordance with this section. (4) Nothing in this section shall prejudice the right of the Authority to recover any such rate or charge, or any part thereof, by any other lawful means. 27. Unclaimed goods in possession of the Authority (1) Where any goods in the possession of the Authority are not claimed by the owner or any other person appearing to the Authority to be entitled thereto, the Authority shall, if such owner or person is known, take all reasonable steps to cause a notice to be served upon him requiring him to remove the goods. (2) If the owner of any goods in the possession of the Authority is not known and no person appears to be entitled thereto; or the notice referred to in subsection (1) cannot for any reason be served; or there has been a non-compliance with the provisions of any notice served under subsection (1), the Authority may, within a reasonable time not being less (except in the case of perishable goods) than three months, sell the goods and dispose of the proceeds of sale thereof: Provided that no imported goods shall be sold under this, section until they have been entered for home consumption in accordance with the provisions of the customs law. K18-21 [Issue 1]

22 CAP. 391 [Rev. 2014] 28. Indemnity where goods claimed by two persons, etc. Where any goods, or the proceeds of the sale of any goods, are in the possession of the Authority and such goods, or proceeds, are claimed by two or more persons; or any person claiming any goods in the possession of the Authority does not produce the documents showing that he is entitled to take delivery thereof, the Authority may withhold delivery of such goods or proceeds until the person appearing to the Managing Director to be entitled thereto has given an indemnity to his satisfaction against the claim of any other person with respect to such goods or proceeds. 29. Dangerous or offensive goods, etc. (1) No person shall tender to the Authority for handling or warehousing any dangerous or offensive goods or any goods which are likely to cause damage to any persons or property without giving notice of the nature of such goods to the employee to whom such goods are so tendered. (2) An authorized employee may refuse to accept such goods for handling or warehousing or accept them only under, and in accordance with, any special provisions dealing with the handling or warehousing of any such goods; require any such goods to be marked and packed in such manner as he may reasonably direct. (3) Where any authorized employee has reason to believe that any goods to which this section applies are being handled or warehoused, or have been accepted for handling or warehousing, in contravention of subsection (1) or (2), he may examine such goods and if, on examination, they are found to be goods to which this section applies, he may order their removal from any vehicle of or premises occupied by the Authority. (4) Nothing in this section shall derogate from the provisions of any law in force relating to the possession or transport of explosives, petroleum, fire-arms or ammunition. General 30. Authority to prepare Tariff Book, etc. (1) The Authority shall cause to be prepared and published in such manner as it may think fit a Tariff Book containing all matters which under this Act are required to be contained therein together with such other matters as, under this Act, may be determined by the Authority and such other matters as the Authority may think fit; such other books and other documents as under this Act are required to be kept. [Issue 1] K18-22

23 [Rev. 2014] CAP. 391 (2) There shall be available for public inspection at every port office a copy of the Tariff Book containing all amendments for the time being in force. 31. Accidents to be reported Accidents Where any accident occurs in any port, then if that accident (d) is attended, or is of a kind usually attended, with loss of human life or with serious injury to any person or property; involves any collision between ships or vehicles carrying passengers; involves the derailment of any train, or any part thereof, carrying passengers; is of such other kind as the Minister may specify in directions given to the Managing Director, the Managing Director shall, as soon as practicable, give notice of the occurrence of such accident to the Board and, in the case of any such accident involving injury to any person, also to the police station or administrative authority nearest to the scene of such accident. 32. The Board may order inquiry, etc. (1) The Board may order such inquiry into any accident which occurs in any port as it may think fit. (2) The Board shall submit to the Minister a report of any accident of a kind referred to in section 31 setting out inter alia the probable cause of such accident and the steps, if any, which have been taken, or it has directed shall be taken, with a view to avoiding a repetition thereof. (3) The Managing Director shall make to the Board a return, in such form and at such intervals as the Board may direct, of all accidents occurring in any port whether or not any such accident is attended with injury to any person. 33. Shipping casualties Sections 31 and 32 shall not apply where, in respect of any shipping casualty under any law relating to merchant shipping, a formal investigation is, under any such law, held. 34. Port limits PART IX CONTROL OF PORTS The Minister may, by order, define the limits of any port. 35. Power to amend the Second Schedule The Minister may, by order, amend the provisions of the Second Schedule. K18-23 [Issue 1]

24 CAP. 391 [Rev. 2014] 36. Compulsory pilotage ports (1) The ports specified in Part II of the Second Schedule shall be compulsory pilotage ports and all ships, other than exempted ships, navigating, whether by entering, leaving or moving within the limits of a compulsory pilotage port, shall be under the pilotage of a pilot. (2) For the purposes of this section, the following ships shall be exempted ships (d) (e) (f) ships owned or operated by the Government; ships owned or operated by the Authority; authorized ferries plying as such exclusively within the limits of a port; ships of less than two hundred tons net register; ships trading exclusively between ports in Kenya; tugs, dredgers, barges or similar vessels whose ordinary course of navigation does not extend beyond the limits of the port. (3) The Minister may, by notice in the Gazette, exempt from compulsory pilotage any class of ship either generally or in relation to any particular port. (4) The Managing Director may exempt from compulsory pilotage any ship in any particular case. (5) Where any port is a compulsory pilotage port the Minister may, by order, define the limits of such port for the purpose of compulsory pilotage. (6) The Authority shall not be responsible for any loss or damage caused through the act, neglect or default of any pilot. (7) The owner or master of a ship navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the ship or by any fault of the navigation of the ship in the same manner as he would if pilotage were not compulsory. 37. Passengers, etc., to be embarked, etc., only at a port No ship shall, without lawful excuse, embark or disembark any passenger or goods at any place other than a port: Provided that (i) (ii) the Managing Director may authorize the master of any ship to embark passengers or goods at any place other than a port; nothing in this section shall apply to small boats carrying passengers or goods from any place within Kenya to any other place within Kenya. 38. Master to supply information, etc. The master of any ship arriving in a port shall, if required, produce to an authorized employee the ship s register and the ship s papers; a list of the crew; [Issue 1] K18-24

25 [Rev. 2014] CAP. 391 (d) (e) a list of the passengers, if any, showing particulars of their sex and occupation; a list showing the deaths, if any, which have occurred during the voyage; a list showing the stowaways, if any, on the ship, and shall also supply such other information in relation to the ship, passengers and cargo thereof, as such employee may require. 39. Port rates may be levied (1) There shall be levied upon every ship entering a port such port rates and charges as the Authority may determine and publish in the Tariff Book. (2) At any port where there is a port office there shall be available for public inspection at such port office a notice specifying all port rates and charges applicable at that port. 40. Power to arrest ship for port charges (1) Where any port charges are owing in respect of any ship, an authorized employee may arrest the ship and the tackle, apparel and furniture thereof and may detain it until the amount of such charges is paid. (2) Where, after such arrest, any such port charges remain unpaid for a period of seven days, an authorized employee may cause the ship and the tackle, apparel and furniture thereof arrested, to be sold and out of the proceeds of such sale he may retain the amount of any port charges which are owing and the expenses of the detention and sale thereof, and shall deliver the balance, if any, to the person responsible, under this Act, for the payment of such port charges. (3) Where any ship, in respect of which port charges are owing and have not been secured to the satisfaction of an authorized employee leaves any port and enters or is in any other port then such ship may be dealt with as if the port charges so owing and secured were port charges owing in respect of such other port. 41. Refusal of outward clearance The proper officer of customs of any port may refuse to give the master of any ship in such port outward clearance until all port rates and charges due in respect of the ship, and all penalties and expenses to which the ship and her master are liable under this Act, have been paid or secured to the satisfaction of an authorized employee; and he has received a certificate from an authorized employee stating that the master has complied with the provisions of this Act. 42. Powers of authorized employee in relation to a port (1) An authorized employee may remove any obstruction to a port or its approaches or any boat, timber, raft or other thing floating in a port which endangers or obstructs, or is likely to endanger or obstruct, the free navigation of the port or the use of any wharf or dock therein; K18-25 [Issue 1]