Kenya Ports Authority Act

This Act may be cited as the Kenya Ports Authority Act.

Section 2 provides interpretation and application, defining terms used throughout the Act.

Establishes the Kenya Ports Authority and states its name.

The Cabinet Secretary shall appoint the Chairperson of the Board.

The Cabinet Secretary must appoint a Managing Director after consulting the Board and determine the Managing Director's terms; the Managing Director holds the control and executive management of the Authority, subject to the Act.

The Authority must pay directors remuneration, fees or allowances for expenses as determined by the Cabinet Secretary.

The First Schedule shall have effect with respect to the constitution or organization of the Board.

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

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

Section 12 lists extensive powers granted to the Authority (as a statutory body) including maintaining and regulating ports, constructing navigational aids and ports, carrying on port-related businesses, acting as warehousemen and carriers (subject to Cabinet Secretary determination), consigning goods internationally, providing facilities, constructing and improving port works, levying charges, disposing of surplus property subject to government consent, providing employee housing, holding shares and forming subsidiaries, and related commercial arrangements; subsection (3) clarifies these powers do not authorize disregarding any law; subsection (4) conditions construction on certain land on owner agreement or section 13 procedures.

Section 13 authorises the Authority to acquire land (by agreement if not public land), requires notification to the Cabinet Secretary if acquisition by agreement fails or the land is public, empowers the Cabinet Secretary to place public land at the Authority's disposal, deems existing acquisition powers to extend to the Authority, makes the Authority pay compensation where land acquired by the President or Cabinet Secretary is placed at the Authority's disposal, allows the Authority to convey or surrender surplus land (with special rules for public or trust land), and defines "public land" for the section.

Authorized employees of the Authority may enter and survey any land for the purposes of the Authority; if damage is caused by exercising those powers, the owner or occupier is entitled to compensation under the Act.

The Authority may enter land to cut down or remove obstructions that obscure beacons or fixed signals or that may cause danger, may execute works to prevent or repair accidents, and may apply to the High Court for demolition/modification orders or recovery of costs when a building erected obscures a beacon or signal.

The Authority or an authorized employee may enter land to alter positions of pipes, wires or drains; the Authority must arrange maintenance during such work; persons suffering damage from exercise of these powers are entitled to compensation; the section does not apply to oil pipelines of the Kenya Pipeline Company Limited.

Power to take water

The Board must, through the Authority's undertaking, provide a coordinated system of ports and related facilities and perform a set of specified duties including efficient operation, financial administration per Part V, providing cargo handling and warehousing facilities, development consistent with economy, and ensuring no undue preference or disadvantage.

The Managing Director has the power to establish and operate port services and related facilities.

The Cabinet Secretary may, by order, define the limits of any port.

Section 35: The Cabinet Secretary may, by order, amend the provisions of the Second Schedule.

Ships navigating within specified compulsory pilotage ports must be under the pilotage of a pilot, subject to certain exemptions; specified officials may exempt ships or define port limits; the Authority is not liable for pilot fault; owners/masters remain answerable for losses.

The Managing Director may authorize the master of any ship to embark passengers or goods at any place other than a port.

The Master must supply information.

The Authority may determine and publish port rates and charges in the Tariff Book applicable to ships entering a port.

Authorized employees may arrest and detain ships for unpaid port charges, may sell detained ships after seven days unpaid, retain charges and expenses from sale proceeds, and must deliver any remaining balance to the person responsible.

Outward clearance is conditioned on payment or security of all port rates, charges, penalties and expenses payable by the ship and her master to the satisfaction of an authorized employee.

Authorised employees have powers to remove obstructions, act in urgent necessity, and enter ships or buildings in ports; owners must pay removal expenses; Authority may detain, sell items after seven days unpaid and must deliver any balance to the person appearing to the Managing Director entitled thereto.

Port health officers have specified powers at a port including medical examination, inspection of provisions and accommodation, requiring the master to produce log-books/documents, questioning persons, and prohibiting or detaining persons suspected of infectious disease; "health officer" is defined.

The Authority may retain goods until freight and related charges are paid, is entitled to custody charges and a lien for those charges, and is freed from liability when it delivers goods to someone producing a receipt or paying the required amount.

The Authority is not liable for any demurrage on any ship.

The master of a ship must ensure the ship complies with the provisions of the Act.

The Authority must keep, in every port, a copy of the Act, related port regulations and quarantine laws available for inspection by a ship's master.

The Authority must operate on commercial principles and ensure, on average from year to year, that gross revenue covers properly chargeable outgoings and that net operating income yields an annual return on net fixed assets at a percentage set by the Cabinet Secretary; the Authority may invest its funds subject to directions from the Cabinet Secretary responsible for finance.

The Authority may borrow money (by issuing loan stock or otherwise, in Kenya or abroad) subject to approval, concurrence or limitations by the Cabinet Secretary responsible for finance; except as provided, the Authority must not mortgage or charge its property or assign it as security for borrowed money.

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

The Board must prepare a report within nine months after each financial year and transmit it to the Cabinet Secretary, who must cause it to be presented to Parliament with the accounts and Auditor-General's report. The Authority's financial year runs from 1 January to 31 December; the first financial year runs from commencement to 31 December 1978.

Section 22 addresses liability for loss of goods and refers to an "act of God."

The Authority's liability for loss, damage or delay of goods deposited in a cloakroom is capped at two hundred shillings, unless the depositor declares a higher value and pays the additional Tariff Book charge, in which case liability is limited to the declared value.

The Authority may set conditions and may set rates and charges for handling or warehousing goods; different conditions may apply in different cases.

Consignors, persons tendering, and consignees must give a signed written account describing goods so the Authority can determine handling or warehousing charges; authorized employees may inspect goods and may refuse acceptance or delivery (including charging up to the highest or double-highest rate) in specified circumstances.

If a person fails to pay a demanded rate or charge, the Authority may detain that person's goods and may sell them (auction immediately for perishables; for other goods after at least fifteen days' notice). From sale proceeds the Authority may retain the debt and sale/detention expenses and must deliver any remaining balance and unsold goods to the person entitled; if that person fails to remove unsold goods after notice the Authority may sell them. The Authority's right to recover the rate by other lawful means is not prejudiced.

If goods in the Authority's possession are unclaimed and the owner is known the Authority must try to serve a removal notice; in certain cases the Authority may sell goods after a reasonable time not less than three months (except perishables) and keep the proceeds.

If any goods, or the proceeds of the sale of any goods, are in the possession of the Authority and are claimed by two or more persons, an indemnity rule applies.

Persons tendering dangerous or offensive goods to the Authority must give notice to the employee receiving them; the Authority may refuse, impose special handling conditions, require marking/packing, and authorized employees may examine and order removal of goods handled in contravention.

The Authority has the power to prepare a Tariff Book (including required matters and other matters it deems fit) and to make other required books and documents available.

Accidents that are attended, or usually attended, and involve loss of life or serious injury to a person or property are required to be reported.

Section 32 permits the Board to order inquiries into port accidents, requires the Board to report certain accidents to the Cabinet Secretary, and requires the Managing Director to provide returns of port accidents to the Board.

Sections 31 and 32 do not apply where, in respect of any shipping casualty under any law relating to merchant shipping, a formal investigation is held.

Prohibits doing any act that obstructs (or might obstruct) the working of any equipment or vehicle of the Authority used in operating a port and that endangers (or might endanger) the life of any person therein.

Section 49: Minor offences — Is found during the hours of darkness on any premises occupied by the Authority;

Any person who knowingly or recklessly makes a materially false statement in a return, claim or other document required or authorized for the Authority is guilty of an offence and liable to a fine not exceeding three thousand shillings, or imprisonment not exceeding three months, or both.

Delivering goods covered by section 29 to the Authority for handling or warehousing in contravention of section 29 is an offence punishable by a fine up to ten thousand shillings, imprisonment up to twelve months, or both; convicted persons are also responsible for loss caused and the court may order compensation and, for non-payment, further imprisonment up to six months.

Any master of a ship who contravenes (or permits contravention of) specified sections, or produces or gives materially false documents or information, is guilty of an offence and liable to a fine not exceeding three thousand shillings or imprisonment not exceeding three months or both.

Masters must not navigate a ship in ports where pilotage is compulsory unless the ship is under the pilotage of a pilot; doing so is an offence punishable by a fine not exceeding three thousand shillings.

An employee endangering safety by contravening any of the provisions of this Act.

Employees must not, with intent to defraud, demand, solicit or receive improper amounts or other things of value from persons delivering goods to or using the Authority's facilities.

The officer in charge of a port must relieve the employee in respect of whom a request is made without unnecessary delay.

Authorized employees or police officers may arrest without warrant persons who commit specified offences and must, with the least possible delay, take them before a magistrate having jurisdiction to try or commit them for trial.

The Board may appoint employees as necessary; the Managing Director may authorize employees to maintain order, and any employee so authorized has the powers of a police officer.

When an employee dies or leaves service and Authority property or premises remain in their possession or occupation, the employee (or the person in possession on death) must promptly return the property or vacate the premises; if not, the Managing Director must serve written notice and may apply to a magistrate to empower police to recover property or evict occupants.

Refers to regulations relating to staff.

The Board and the Managing Director may delegate powers and grant powers of attorney; acts or notifications of the Board or Managing Director may be signified by an authorized employee.

The Authority must do as little damage as possible; persons who suffer damage are entitled to compensation agreed with the Authority or, if no agreement, decided by a single arbitrator appointed by the Registrar of the Nairobi Centre for International Arbitration.

The Authority is generally not liable for fire damage from its engines when a building is within two hundred feet of the railway rails; however the Authority is liable where there is negligence, and contiguous landowners must follow notice and timing rules to claim.

A person claiming compensation under section 22 is not required to prove how the loss, misdelivery, detention, damage, delay or deviation was caused.

A claim in writing must be given to the Managing Director within specified time limits to be entitled to compensation for non-delivery of goods.

A plaintiff (or their agent) must serve a written notice with particulars of the claim and intention to commence the action on the Managing Director; the action cannot be started against the Authority until at least one month after that notice is served.

The Managing Director must pay from the Authority's revenue any amount awarded against the Authority by a judgment or order to the person entitled.

If there is an overcharge, the person who paid may be refunded; if there is an undercharge, the Authority may collect it. Claims must generally be made within six months, except the six-month period can start upon discovery when incorrect information caused the undercharge, and late notification may be excused if proved to the Managing Director's satisfaction.

Courts or persons with authority to determine claims may order a person claiming compensation to be examined by a medical practitioner and may order payment of the examination costs.

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

Service of notice by the Managing Director.

The Cabinet Secretary may make regulations under Section 72 concerning the matters listed in subsections (1)(a)–(k), including berths, ship operations, anchoring, mooring, smoking prohibitions on Authority property, control of premises, prevention of unseaworthy ships leaving port, certification and licensing of crew and craft, protection and removal of stranded ships and cargoes, pilots’ registration and duties, and licensing and regulation of various port workers and agents.