This Act may be cited as the Kenya Trade Remedies Act, 2017.
In this Act, unless the context otherwise requires—
means the Kenya Trade Remedies Agency established under section 3;
means the Board of the Agency as constituted under section 6;
means the Cabinet Secretary for the time being responsible for matters relating to trade;
means any information which is —
by nature confidential; or
provided on a confidential basis in terms of this Act;
means a special duty levied for the purpose of offsetting any subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise;
means domestic producers as a whole of the product or like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, and are not related to the exporters or importers or are themselves importers of the allegedly subsidised product or a like product from other countries;
means the domestically produced product which is a like product to the investigated product;
means the market within the country including the EAC as a single customs territory;
means the introduction of a product into the commerce of the country at an export price that is less than its normal value:
means the difference between the export price and the normal value as it results from the comparison of the two in accordance with the provisions of this Act;
means the East African Community as a single customs territory;
means the Executive Director of the Kenya Trade Remedies Agency appointed under section 13;
means the General Agreement on Tariffs and Trade that was adopted at Marrakech on the 15th day of April 1994 and established the World Trade Organization (WTO);
means an individual or company that has no relationship with either the importer or the exporter of the product under investigation;
means material injury or threat of material injury to a domestic industry, or material retardation of the establishment of such an industry;
means—
an exporter or producer in the exporting country, or the importer of a product subject to investigation, or a trade or business association a majority of the members of whom are producers, manufacturers, exporters or importers of the investigated product; or
the governments of both the importing and exporting country; or
a producer of the like product or a trade or business association, a majority of the members of whom, produce the like product in Kenya;
means the product subject to an unfair trade practice investigation;
means a product, which is identical or otherwise alike in all respects to the investigated product or in the absence of such a product, another product, which although not alike in all respects, has characteristics closely resembling those of the investigated product;
means multi-staged taxes levied on goods or services used directly or indirectly in making a product, where there is no mechanism for subsequent crediting of the tax if the goods or services subject to the tax at one stage of production of the product are used in a succeeding stage of production thereof;
means the ad valorem subsidisation of the investigated product;
means the temporary imposition of a tariff or quantitative restrictions or other necessary permissible measures to prevent or remedy serious injury and to facilitate adjustments of the concerned industry;
means material injury or threat of material injury to a domestic industry or material retardation of the establishment of an industry;
means subsidies available only to a defined enterprise or industry, or a group of enterprises or industries, within the jurisdiction of a granting agency;
means goods in respect of the production, manufacture, growth, processing, purchase, distribution, transportation, sale, export, or import of which a specific subsidy has been or will be paid, granted, authorized, or otherwise provided, directly or indirectly, by a foreign government;
includes any financial or other commercial benefit that has accrued or will accrue, directly or indirectly, to persons engaged in the production, manufacture, growth, processing, purchase, distribution, transportation, sale, export, or import of goods, as a result of any scheme, programme, practice, or thing done, provided, or implemented by a foreign government or a body of the foreign government, but does not include the amount of any duty or internal tax imposed on goods by the government of the country of origin or country of export from which the goods, because of their exportation from the country of export or country of origin, have been exempted or have been or will be relieved by means of refund or drawback;
means serious injury that is imminent and of whose determination of its existence is based on facts and not on allegation, conjecture or remote possibility;
means the absolute monetary value of benefit received by a recipient from an investigated countervailable subsidy programme, net of offsets or deductions otherwise permitted by this Act;
means the World Trade Organization;
means the World Trade Organization Agreement on the Implementation of Article VI of the GATT 1994; and
means the World Trade Organization Agreement on Subsidies and Countervailing Measures.
There is established an Agency to be known as the Kenya Trade Remedies Agency.
The Agency is a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of —
suing and being sued;
purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property;
borrowing and lending money; and
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.
The headquarters of the Agency shall be in Nairobi.
The Agency shall—
investigate and evaluate allegations of dumping and subsidization of imported products in Kenya;
investigate and evaluate requests for application of safeguard measures on any product imported in Kenya;
advise the Cabinet Secretary on the results and recommendations of its investigations;
initiate and conduct public awareness and the training of stakeholders on its functions and on trade remedies;
publish and disseminate manuals, codes, guidelines, and decisions relating to its functions; and
perform such other functions as the Cabinet Secretary may assign to it.
The management of the Agency shall vest in the Board which shall consist of —
a chairperson appointed by the President upon the recommendation of the Public Service Commission through a competitive process;
the Principal Secretary in the Ministry for the time being responsible for matters relating to finance or a representative of the Principal Secretary;
the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or a representative of the Principal Secretary;
the Principal Secretary in the Ministry for the time being responsible for matters relating to industrialisation or a representative of the Principal Secretary;
the Attorney-General or a representative of the Attorney General;
three other members appointed competitively by the Cabinet Secretary; and
the Executive Director of the Agency who shall be the Secretary.
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.
A person is qualified to be appointed as the chairperson of the Board if such person—
holds a masters degree in a relevant discipline from a university recognized in Kenya;
has had a distinguished career in a senior management position in the private or public sector;
has at least ten years' relevant professional experience; and
satisfies the requirements of Chapter Six of the Constitution.
A person is qualified to be appointed a member of the Board under section 6(f) if such person—
holds a degree in a relevant discipline from a university recognized in Kenya;
has had a distinguished career in his or her respective field;
has at least seven years’ relevant professional experience; and
satisfies the requirements of Chapter Six of the Constitution.
The members shall elect the vice-chairperson from among the members appointed under section 6 (f).
A person shall not be qualified to be appointed as the chairperson or member of the Board under section 6 (a) or (f) if that person—
is a member of Parliament or a County Assembly;
is a member of the governing body of a political party;
is a member of a Commission established under the Constitution;
is an undischarged bankrupt;
has been removed from public office for contravening the Constitution or any other law; or
has, in the conduct of his or her affairs, not met any statutory obligations.
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.
A person ceases to be a member of the Board if—
the Board recommends to the Cabinet Secretary the removal of the member on the ground of misconduct or poor performance;
the member violates the provisions of the Public Officer Ethics Act, 2003. (No. 4 of 2003);
the member is absent from three consecutive sittings of the Board without the written approval of the chairperson;
the member resigns in writing to the Cabinet Secretary;
the member dies; or
the member is declared bankrupt.
The Board shall have all the powers necessary for the proper performance of its functions under this Act and in particular, but without prejudice to the generality of the foregoing, the Board shall have power to—
supervise and offer guidance and strategic direction to the Agency;
control and supervise the use of the assets of the Agency in such manner as best promote the purposes for which the Agency is established;
determine the provisions to be made for capital and recurrent expenditure and for reserves of the Agency;
receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom;
collaborate with other bodies or organizations in furtherance of the purpose for which the Agency is established;
open such bank accounts for the funds of the Agency as may be necessary; and
invest any funds of the Agency not immediately required for the purposes of this Act subject to the approval of the Cabinet Secretary for the time being responsible for matters relating to finance.
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.
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.
There shall be an Executive Director of the Agency who shall be the Chief Executive Officer of the Agency.
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.
A person is qualified for appointment as the Executive Director of the Agency if the person—
possesses a post-graduate degree in economics, international trade, trade law, customs or equivalent qualifications and has at least five years professional experience; or
possesses a basic degree in a relevant field and has at least ten years professional experience in matters relating to trade and industry; and
satisfies the requirements of Chapter Six of the Constitution.
The Executive Director shall be—
responsible to the Board generally for the functions of the Agency;
an ex officio member of the Board who has no right to vote at any meeting of the Board;
the secretary to the Board;
subject to the directions of the Board, responsible for the day to day management of the affairs of the Agency; and
responsible to the Board generally for supervision of staff.
The Executive Director may be removed from office by the Board on the following grounds—
inability to perform the functions of the office due to physical or mental incapacity;
gross misconduct or misbehaviour;
incompetence or neglect of duty;
violation of the Constitution or any other law; or
any other ground that would justify removal from office under the terms and conditions of service.
Where the Board decides to remove the Executive Director from office, the Board shall give the Executive Director—
sufficient notice of its decision and the grounds on which the decision is based; and
an opportunity to challenge the grounds of the Board’s decision.
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.
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.
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.
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.
The funds of the Agency shall consist of—
funds appropriated by the National Assembly for purposes of the Agency;
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;
sums as may be payable to the Agency pursuant to this Act or any other written law, or pursuant to any trust;
any grants, gifts, donations or endowments received by the Board on behalf of the Agency;
any other funds that may be received by the Agency from any other source; and
fees from consultancy and other services by the Agency.
The Agency shall disclose details of the sources of its funds in its annual report.
The financial year of the Agency shall be the period of twelve months ending on the thirtieth June in each year.
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.
The annual estimates shall make provision for all estimated expenditure of the Agency for the financial year and in particular, the estimates shall provide for—
the payment of the salaries, allowances and other charges in respect of the members, staff and agents of the Agency;
the payment of the pensions, gratuities and other charges in respect of retirement benefits to staff of the Agency;
acquisition and the proper maintenance of the buildings and grounds of the Agency;
the proper maintenance, repair and replacement of the equipment and other movable property of the Agency;
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
any other expenditure necessary for the performance of the functions of the Agency.
The annual estimates shall be approved by the Board and be submitted to the Cabinet Secretary for approval before the commencement of the financial year to which they relate.
An expenditure shall not be incurred for purposes of the Agency except in accordance with the annual estimates approved under subsection (3) or in accordance with the authorisation of the Board and prior written approval of the Cabinet Secretary.
The Board shall cause to be kept proper books and records of accounts of the income, expenditure, assets and liabilities of the Agency.
Within a period of three months after the end of each financial year, the Board shall submit to the Auditor-General the accounts of the Agency in respect of that year together with—
a statement of income and expenditure of the Agency during that financial year; and
a statement of the assets and liabilities of the Agency on the last day of that financial year.
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, 2015 (No. 34 of 2015).
The Cabinet Secretary may impose—
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
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.
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.
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.
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.
Where the Cabinet Secretary fails to act on the Agency's recommendation in the prescribed period, he or she shall inform the Agency of the reason of the failure to act in writing.
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.
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.
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.
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.
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.
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.
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.
The Agency shall take all measures to protect any person who gives information to it.
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.
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.
Any decision of the Agency shall be in writing and shall state the reasons for the decision.
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.
The Agency shall give the notice in subsection (2) at least fourteen days before it publishes its decision.
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.
The Agency may not publish its decision until the High Court determines the application made under subsection (4).
The Board may appoint any person as an investigating officer and the appointment shall be published in the Kenya Gazette.
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.
During an investigation, the Agency may enlist the support of police officers where necessary.
An investigating officer may question any person under oath or affirmation during the course of an investigation.
A person questioned by an investigating officer may be accompanied by a legal representative.
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.
The investigating officer may—
accept any relevant information either in oral or written form from any person;
accept any relevant information, document or other thing whether or not—
it is given or proven under oath or affirmation; or
would be admissible as evidence in a court of law; or
refuse to accept any information, document or other thing that is unduly repetitious.
Where the investigating officer receives oral information under subsection (4), the investigating officer shall set down the information in writing as soon as is practicable and may require the person who provided the information to sign the written statement or affix his or her mark to the written statement.
A person shall be required to respond to an investigating officer honestly.
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.
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.
A warrant to enter and search may be issued at any time and shall—
specifically identify the premises that may be entered and searched; and
authorize the named investigating officer to enter and search the premises and to do any other thing authorised to be done in the warrant.
A warrant to enter and search is valid until the—
warrant is executed;
warrant is cancelled by the court;
purpose for issuing the warrant lapses; or
expiry of one month after the date that the warrant was issued.
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 reasonable in the circumstances.
Before executing a warrant, the investigating officer executing the warrant shall—
identify himself or herself to the person named in the warrant if present or the person in charge of the premises at the time of execution of the warrant and explain to that person the purpose of the warrant;
hand a copy of the warrant to the person named in the warrant if present or the person in charge of the premises at the time of the execution of the warrant; or
where no one is present in the premises, affix a copy of the warrant to the premises in a prominent and visible place.
An investigating officer executing a warrant under section 33 may—
enter the premises mentioned in the warrant;
search such premises;
search any person found in those premises if there are reasonable grounds to believe that such person is in possession of a relevant article or document that has a bearing on the investigation;
examine any relevant article or document that is found in such premises;
request for information about an article or document from the owner of, or person in charge of, the premises or from any person who may have such information;
take an extract from, or make copies of any relevant book or document that is on or in the premises;
use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to—
access any data in that computer or available in that computer system; and
reproduce any record from that data;
attach and where necessary, remove from the premises for examination and safe custody, any relevant thing; or
have powers to close and seal off the premises for further investigation for a period not exceeding fourteen days.
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.
The Agency or the Cabinet Secretary may vary or set aside a determination, recommendation or decision on the Agency's or the Cabinet Secretary's own volition or upon application by a person affected by the determination, recommendation or decision—
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
where the determination, recommendation or decision was made by a common mistake and it affects all relevant parties.
In any proceedings under this Act, other than criminal proceedings, the standard of proof is on a balance of probabilities.
A person commits an offence if that person discloses any information that has been declared confidential concerning the affairs of any person obtained by an authorized person—
in carrying out any function or exercising any power under this Act; or
as a result of initiating a complaint or participating in any proceedings under this Act.
Despite subsection (1), it is not an offence if a person discloses any information—
for the purpose of the proper administration or enforcement of this Act;
for the purpose of the administration of justice;
at the request of the Executive Director or an investigating officer entitled to receive the information; or
that shall be disclosed under this Act.
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.
A person commits an offence if that person, when summoned, under this Act—
fails, without sufficient cause, to appear at the time and place specified or to remain in attendance until excused; or
attends as required, but refuses to be sworn in or to make an affirmation or fails to produce a book, document or any other item as required, if it is in the possession of, or under the control of, that person.
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.
The Cabinet Secretary may in consultation with the Agency, make regulations for the better carrying into effect the provisions of this Act.
For the purpose of Article 94(6) of the Constitution—
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;
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;
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, (No. 23 of 2013).
Sections 125, 125A and 126 of the Customs and Excise Act (Cap. 472) are repealed.