Kenya Railways Corporation Act

This Act may be cited as the Kenya Railways Corporation Act.

Section 2 provides definitions of terms used in the Act (for example, "animals", "goods", "perishable goods", "ticket", "warehouse", and others) and rules for when goods cease to be in transit.

Establishes a Corporation called Kenya Railways; states it is a body corporate with perpetual succession and a common seal, gives it power to sue, to be sued, and to acquire, hold and dispose of movable and immovable property for its purposes; headquarters at Nairobi.

Chairperson of the Board appointed by the Cabinet Secretary.

Cabinet Secretary appoints the Managing Director after consulting the Board and determines that director's terms in writing; the Board appoints a deputy managing director and a secretary whose terms are determined under sections 79 and 81.

The First Schedule shall have effect with respect to the constitution or organization of the Board and otherwise in relation thereto.

The Corporation must pay directors remuneration, fees or allowances as determined by the Cabinet Secretary, but must not pay those amounts to directors who are public officers receiving a salary.

The Managing Director has the power to establish and operate rail, road and inland waterways transport services and related facilities.

The Board has the power to approve minor alterations in tariffs, rates, fares and other charges.

The Board may enter into an agreement to have a person perform its functions or exercise its powers, and the Board must appoint that person through competitive tendering in accordance with applicable procurement law.

The Cabinet Secretary has the power to give general directions to the Board about the Corporation's operations.

Section 13 enumerates the statutory powers of the Corporation, including carrying goods and passengers by rail, road and inland waterways; towage, protection or salvage of life and property; storage and consigning of goods; provision of hotels, accommodation and amenities; construction, improvement and operation of transport infrastructure and works; acquisition, manufacture, maintenance or repair of plant and equipment; supplying water or electric energy; altering watercourses or roads with Cabinet Secretary approval; determining and levying rates, fares, charges, dues or fees; entering commercial agreements and arrangements (including joint use of facilities, secondment of staff, financing and research); holding shares and establishing subsidiaries; and other related powers necessary or desirable for the Corporation's purposes.

Section 14 gives the Corporation power to acquire land by negotiation if not public land, requires notification to the Cabinet Secretary when acquisition by agreement fails or the land is public, authorises the Cabinet Secretary and President to place or acquire land for the Corporation, obliges the Corporation to pay compensation in certain cases, and permits the Corporation to surrender or transfer surplus land subject to surrender of former public or trust land to Government unless the Cabinet Secretary consents.

Section 15 grants power to enter land to survey, to excavate and take materials (earth, stone, gravel), to cut and take timber, and entitles owners or occupiers to compensation where materials are taken or damage is caused by exercise of these powers.

The Corporation may enter land to cut down or remove trees or other obstructions and carry out works to prevent or repair accidents; it may apply to the High Court for demolition, modification or reimbursement where a building obscures signals unless the builder has prior approval or has modified the building to the Managing Director's satisfaction.

The Corporation or an authorized employee may enter land and alter positions of pipes, wires or drains for its purposes; such authority may appoint a representative; the Corporation must arrange maintenance/continuity of supplies and communications during the work; persons harmed by exercise of these powers are entitled to compensation; the section excludes oil pipelines owned or operated by the Kenya Pipeline Company Limited.

Power to take water

No rail transport services shall be provided.

The Board may provide crossings, bridges or other works when, in the opinion of the Board, they are necessary to make good interruptions to land use caused by railway construction.

If the owner or occupier of land on which a railway is built wants accommodation works beyond those (if any) the Corporation constructed under section 20, this provision addresses that situation.

The Cabinet Secretary responsible for public lands may require the Corporation to build railway crossings so they do not cross public roads at grade and to carry out necessary safety works; the Corporation must comply, and the Cabinet Secretary must consult the Corporation and the road authority before requiring works.

A Chief Engineer or qualified person appointed by the Managing Director must certify that a section of a new railway meets the Corporation's standards before it is declared open; once that certificate is furnished, the Corporation may declare the section open by Gazette. The Corporation may carry passengers or goods during construction but, in that case, is not liable for death, injury, loss or damage arising in the course of such carriage. "New railway" excludes diversions or re-alignments of existing track.

The Board must ensure the development, efficient and safe operation, proper financial administration, provision of reasonable carriage facilities, and non‑discrimination in the Corporation's services.

The Managing Director holds the control and executive management of the Corporation.

Section 56 is repealed ("[Repealed by ActNo. 4 of 2009, s. 454.]").

Section 57 has been repealed by Act No. 4 of 2009, s. 454.

Section 58 has been repealed.

Section 59 was repealed.

Section 60 has been repealed by ActNo. 4 of 2009, s. 454.

Section 61 is repealed.

Section 62 has been repealed.

Section 63 was repealed by ActNo. 4 of 2009, s. 454.

Section 64 has been repealed by ActNo. 4 of 2009, s. 454.

Section 65. [Repealed by ActNo. 4 of 2009, s. 454.]

The Corporation must run its business on commercial principles to ensure, on average, revenues cover properly chargeable outgoings and that net operating income yields an annual return on net fixed assets at a percentage the Cabinet Secretary may direct; the Corporation may invest its funds subject to directions from the Cabinet Secretary responsible for finance; the Cabinet Secretary may, in consultation with the Board, make provision for cheap transport to support certain sectors.

The Corporation may borrow money (including by issuing loan stock) subject to approval or concurrence and limitations by the Cabinet Secretary responsible for finance; except as provided, the Corporation must not mortgage or charge its property as security for borrowed money.

The Board must keep proper accounts, prepare and transmit annual statements within six months (or longer if the Cabinet Secretary allows) to the Auditor-General; the Auditor-General must audit, examine, certify and return the accounts to the Board; the Board must send certified accounts to the Cabinet Secretary, who must present them to Parliament within nine months (or longer if allowed).

The Board must prepare an annual report within nine months after the end of each financial year and transmit it to the Cabinet Secretary, who must present it to Parliament with the statement of accounts and Auditor‑General's report.

The Corporation is not liable for death or personal injury to passengers except when caused by lack of ordinary care, diligence or skill by the Corporation or its employees; the Corporation remains exempt from liabilities it is already exempt from under this Act or any other written law.

No liability for delay in arrival of passengers, etc.

The Corporation shall not be liable for loss, misdelivery or damage to goods in specified circumstances (including false account, incorrect address, fraud by consignor, lack of receipt document, carriage by other transport, market loss, insufficient packing, riots/strikes, acts of God/war, fire, machinery accident, or inland navigation perils).

States liability for delay of goods and refers to fraud by the consignor.

The Corporation's liability for any animal is capped at the appropriate amount in the Tariff Book unless the consignor declared a higher value and paid additional charges; claimants must prove value and injury in proceedings.

The Corporation's liability for specified articles in a parcel is limited to one thousand shillings unless a higher value is declared and additional tariff charges paid or agreed, in which case liability is limited to the declared value; declared parcels may be inspected; claimants bear the burden of proving value and loss; the Cabinet Secretary may amend the Second Schedule or vary the maximum liability by regulation.

Where a false account has been given under section 46, the Corporation's liability for the goods concerned is limited to the value of those goods as calculated from the false account.

The Corporation's liability for carriage of goods cannot be limited except by a contract made according to this section; such limiting contracts are void unless they are in writing and signed by or on behalf of the person delivering the goods (provision does not apply to carriage by vessel).

Section concerns liability for loss of goods delivered to or in the custody of the Corporation when not for the purpose of carriage.

The Corporation's liability for loss, misdelivery, damage or delay of goods deposited in a cloakroom is capped at two hundred shillings unless the depositor declared a higher value and paid (or agreed to pay) the additional charge in the Tariff Book, in which case the liability is limited to that declared value.

The Corporation may set and publish conditions, rates, fares, charges and passenger accommodation classes for carriage of passengers and luggage in the Tariff Book.

General right of persons to be carried as passengers.

An authorized employee may require a passenger to move between compartments or cabins of the same class to better use accommodation.

Persons may not travel on Corporation trains, vessels or vehicles unless they hold a valid ticket or free pass; employees of the Corporation may require those without a valid ticket or free pass to leave and may remove them using reasonable and necessary force if they refuse.

Persons must hold a valid ticket or free pass for travel; they must pay fare and excess charges when liable; authorised employees or police may arrest and detain a person who refuses to pay if there is reasonable ground to believe other means would delay bringing them before the court.

Passengers who pay the appropriate charge (if any) may deliver luggage to an authorized employee for carriage and are entitled to receive a receipt for each piece.

The Corporation may, subject to the provisions of this Act, determine the conditions upon which goods shall be carried or warehoused by the Corporation; such conditions must be published in the Tariff Book and take effect from the date of publication or a later specified date.

General right to have goods carried

Consignors, persons tendering goods, and consignees must give a written account describing goods so authorized employees can determine carriage or warehousing rates; authorized employees may examine goods and may refuse acceptance or delivery unless specified rates (up to the highest, or double if the account is materially false) are paid.

If a person fails to pay a fare, rate or charge when demanded by an authorised employee, the Corporation may detain or sell their goods (including luggage), hold auctions (immediately for perishables or after at least 15 days' notice for other goods), retain proceeds to cover the debt and expenses, deliver any remaining balance to the entitled person, and may recover amounts by other lawful means.

If goods held by the Corporation are unclaimed and the owner (or person appearing entitled) is known, the Corporation must take reasonable steps to serve a notice requiring removal of the goods.

Any goods, or the proceeds of the sale of any goods, that are in the possession of the Corporation may be claimed by two or more persons.

An authorized employee may examine goods suspected of contravening this section and may order their removal from Corporation trains, vessels, vehicles or premises.

The Corporation must prepare and keep a Tariff Book and other specified books, copies, fare lists and a timetable for passenger services.

Section 52. Corporation shall determine maximum load, etc. Section 52(1)(a) the maximum load for every wagon of the Corporation and no wagon shall, except with the permission of the Managing Director, be loaded in excess of such maximum

Accidents that are attended, or of a kind usually attended, with loss of human life or with serious injury to any person or property are to be reported.

The Board may order inquiries into accidents in the Corporation's transport services or inland waterways, and the Board must submit a report to the Cabinet Secretary on accidents of the kind in section 53 describing probable cause and steps taken to avoid repetition.

The Managing Director must make a return to the Board of all accidents to the Corporation's transport services or in any inland waterways port.

Crew members of a Corporation-operated vessel who, without lawful excuse, disobey lawful orders or unlawfully desert their employment shall be guilty of an offence and liable to imprisonment for a term not exceeding three years.

Being found during the hours of darkness on premises occupied by the Corporation is identified as a minor offence.

It is an offence for a person to travel on the Corporation's train, vessel or vehicle without a valid ticket or free pass, to travel beyond the distance covered by a valid ticket to avoid fare, to travel in a higher class than entitled, to wilfully refuse to pay fare and excess charge on demand, or to use a ticket obtained from someone other than an authorized employee; recovered penalties must be paid to the Corporation and the Corporation retains the right to recover amounts by other lawful means.

Passengers must not enter or stay in a part reserved for another person or in a part already at its authorized maximum and then refuse to leave when required to do so by an authorized employee.

A person who is not an authorized employee or agent of the Corporation must not sell or part with any ticket or free pass (or any portion) to enable another person to travel on a train, vessel or vehicle.

Relates to obtaining by false pretences or other fraudulent means any ticket or free pass issued by the Corporation.

It is an offence for any person to knowingly or recklessly make a materially false statement in a return, claim or other document required or authorized for the Corporation; the offender may be fined up to three thousand shillings, imprisoned up to three months, or both.

A person convicted under this section is responsible for loss, injury or damage caused by the dangerous goods and the convicting court may order payment and may (if payment is not made) impose up to six months' further imprisonment.

Masters of vessels who contravene specified ship provisions or who produce materially false documents or information commit an offence punishable by a fine up to three thousand shillings, imprisonment up to three months, or both.

Employee endangering safety of operation by contravening any of the provisions of this Act.

Employees of the Corporation must not, with intent to defraud, demand, solicit or receive improper amounts or other things of value from passengers, consignors or users of the Corporation's facilities; doing so is an offence punishable by a fine up to ten thousand shillings, imprisonment up to twelve months, or both.

A head of a department must, when a request is made under this section, relieve the relevant employee with the least possible delay.

Authorized employees of the Corporation and police officers may arrest without warrant persons committing specified offences and must take them promptly before a magistrate; they may require persons committing certain offences to leave Corporation premises or remove goods and use reasonable force if necessary; persons so arrested or removed are not entitled to a refund of any fare.

Section 79 empowers the Board to appoint employees; the Managing Director may authorize employees to maintain order with police-like powers; employees from East African Railways Corporation who transfer under section 95 are deemed appointed to the Corporation.

Employees (or the person in possession on their death) must promptly return Corporation property or vacate Corporation premises; the Managing Director must issue a written notice if property/premises are not surrendered, and may apply to a magistrate to obtain police entry, search, delivery of property or eviction if compliance does not occur.

Regulations relating to staff

The Board and the Managing Director may delegate their powers and grant powers of attorney, and acts or decisions may be signed by an authorised employee.

The Corporation must do as little damage as possible when exercising specified powers; any person who suffers damage is entitled to compensation agreed with the Corporation or, if not agreed, determined by a single arbitrator appointed by the Chief Justice.

The Corporation is not liable for fire damage to buildings within 200 feet of railway rails, but is liable for fire damage from its engines caused by negligence, subject to specific conditions and notice requirements.

A person claiming compensation in proceedings against the Corporation under sections 30, 31 or 36 is not required to prove how the loss (or related harms) was caused.

Entitlement to compensation for non-delivery requires a written claim to the Managing Director within specified time limits; separate notifying and claiming time limits apply and an exception exists if it was impracticable to comply but the claim was made in reasonable time.

An action or legal proceeding against the Corporation may not be commenced until at least one month after written notice with particulars of the claim and intention to commence has been served on the Managing Director by the plaintiff or the plaintiff's agent.

The Managing Director must promptly pay from the Corporation's revenue any amounts awarded against the Corporation by judgment or order to the person entitled.

Passengers or the person who paid an overcharge are entitled to a refund of the overcharged amount; unused-ticket refunds are given if a written notice with necessary particulars is given to the Managing Director within two months of the ticket's availability expiry; a claimant may still obtain a refund if they prove to the Managing Director it was impracticable to notify within the time and that notification was made in reasonable time.

A court or authorised person may order a claimant injured by Corporation operations to undergo examination by a named medical practitioner and may order costs for that examination.

Service of a notice or other document is effected by delivering it to the Managing Director or to any authorized employee.

Title: "Service of notice, etc., by the managing director"

The Cabinet Secretary has the power to make regulations under this section in relation to any matter; that power does not derogate from any other power to make provision in relation to the same matters in a different manner.

Section 94 allows the Cabinet Secretary to adapt or modify Community laws by order laid before the National Assembly within six months of commencement, and allows the Cabinet Secretary to modify or revoke certain existing regulations and orders.

Section 95 makes contracts and liabilities of the former East African Railways Corporation that are wholly performable or dischargeable in Kenya become the contracts and liabilities of the Corporation; preserves employee status for Kenya-based employees; empowers the Cabinet Secretary to transfer property, liabilities or contracts by order; requires public officers to give effect to transfers without fees on request; and allows the Corporation to use vested property pending formal vesting.

Contracts and acts done in Kenya on behalf of Kenya Railways before the Corporation was incorporated by persons acting in good faith and with due or apparent authority are treated as if made or done by the Corporation; times for notices and claims under sections 86 or 89 and limitation periods in section 87 for such matters start from the commencement of this Act.