Kenya Act or statute

Parliament of Kenya

Anti-Counterfeit Act

Jurisdiction: Kenya
Structure: 39 provisions
Citation: Cap. 510
Dates: As at 31 Dec 2022

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Dates: As at 31 Dec 2022

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“This Act may be cited as the Anti-Counterfeit Act.”

This Act may be cited as the Anti-Counterfeit Act. Defines actions including the manufacture, production, packaging, re-packaging, labelling or making of any goods in Kenya that imitate protected goods so they are identical or substantially similar copies. The Board must appoint an Executive Director, set their terms and conditions, and the Executive Director must meet specified qualifications and perform duties including serving as ex officio non-voting Board member, secretary to the Board, day-to-day management, supervision of inspectors, and implementing the Act. The Board may appoint officers, agents and other staff of the Authority. The Authority's common seal must be kept in the custody of the Executive Director or another person the Board directs, may only be used by Board order, and its affixing must be authenticated by signatures of the Chairperson and the Executive Director (or a nominated Board member in their absence).

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PRELIMINARY - 1. Short title

This Act may be cited as the Anti-Counterfeit Act.

Section 1

ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 4. Headquarters

The headquarters of the Authority shall be in Nairobi.

Section 4

FINANCIAL PROVISIONS - 20. Accounts and audit

The Board must keep proper books and records of the Authority's income, expenditure, assets and liabilities; the Auditor-General must audit and report on the Authority's accounts in accordance with the Public Audit Act (Cap. 412B).

Section 20

INSPECTION - 30. Conduct of prosecutions

The Director of Public Prosecutions may appoint public prosecutors for cases under this Act; the Board is deemed to be a public authority for specified Criminal Procedure Code purposes.

Section 30

MISCELLANEOUS - 37. Regulations

The Cabinet Secretary may make regulations to carry the Act into effect, including prescribing matters, inventories, management and control of counterfeit goods depots, disposal procedures, and other necessary matters.

Section 37

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Showing 39 of 39 provisions

Provision 26Offence 7Interpretation 2Commencement 2

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

This Act may be cited as the Anti-Counterfeit Act.

Section 1. Short title Section This Act may be cited as the Anti-Counterfeit Act.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

Defines actions including the manufacture, production, packaging, re-packaging, labelling or making of any goods in Kenya that imitate protected goods so they are identical or substantially similar copies.

Section 2. Interpretation Section the manufacture, production, packaging, re-packaging, labelling or making, whether in Kenya, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods;

Section 2Verify source

Part II

ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY

§ 10ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 10. Executive DirectorProvision

The Board must appoint an Executive Director, set their terms and conditions, and the Executive Director must meet specified qualifications and perform duties including serving as ex officio non-voting Board member, secretary to the Board, day-to-day management, supervision of inspectors, and implementing the Act.

Section 10. Executive Director Section 10(1) There shall be an Executive Director of the Authority who shall be appointed by the Board, and whose terms and conditions of service shall be determined by the Board in the instrument of appointment or otherwise in writing from time to time. Section 10(2)(a) has a degree in law, science, information technology or business administration from a recognized institution and has at least three years working experience in the relevant field; or Section 10(2)(b) has at least seven years working experience in matters relating to trade or industry. Section 10(3)(a) be an ex officio member of the Board but shall have no right to vote at any meeting of the Board; Section 10(3)(b) be the secretary to the Board; Section 10(3)(c) subject to the directions of the Board, be responsible for the day to day management of the affairs of the Authority; Section 10(3)(d) be responsible to the Board generally for supervision of inspectors; and Section 10(3)(e) be responsible to the Board generally for the implementation of this Act.

Section 10Verify source

§ 11ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 11. Staff of the AuthorityProvision

The Board may appoint officers, agents and other staff of the Authority.

Section 11. Staff of the Authority Section The Board may appoint such officers, agents and other staff of the Authority as are necessary for the proper discharge of its functions under this Act or any other written law, upon such terms and conditions of service as the Board may determine. [Act No. 18 of 2018 , Sch.]

Section 11Verify source

§ 12ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 12. The common sealProvision

The Authority's common seal must be kept in the custody of the Executive Director or another person the Board directs, may only be used by Board order, and its affixing must be authenticated by signatures of the Chairperson and the Executive Director (or a nominated Board member in their absence).

Section 12. The common seal Section 12(1) The common seal of the Authority shall be kept in the custody of the Executive Director or of such other person as the Board may direct, and shall not be used except upon the order of the Board. Section 12(2) The common seal of the Authority, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless and until the contrary is proved, any necessary order or authorization by the Board under this section shall be presumed to have been duly given. Section 12(3) The affixing of the common seal of the Authority shall be authenticated by the signature of the Chairperson of the Board and the Executive Director: Provided that the Board shall, in the absence of either the Chairperson or the Executive Director, in any particular matter, nominate one member of the Board to authenticate the seal of the Authority on behalf of either the Chairperson or the Executive Director. [Act No. 18 of 2018 , Sch.]

Section 12Verify source

§ 13ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 13. Delegation by the BoardProvision

The Board may, by resolution, delegate any of its powers or the performance of its functions or duties to a committee or to any member, officer, employee or agent of the Board.

Section 13. Delegation by the Board Section The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law.

Section 13Verify source

§ 14ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 14. Protection from personal liabilityProvision

Members, officers, staff and agents acting bona fide for the Authority are protected from personal liability; the Authority must pay their court-incurred expenses if a court finds the acts were bona fide, unless recovered in the suit.

Section 14. Protection from personal liability Section 14(1) No matter or thing done by a member of the Board or by any officer, member of staff or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever. Section 14(2) Any expenses incurred by any person in any suit or prosecution brought against him in any court in respect of any act which is done or purported to be done by him under the direction of the Authority, shall, if the court holds that such act was done bona fide , be paid out of the general funds of the Authority, unless such expenses are recovered by him in such suit or prosecution. [Act No. 18 of 2018 , Sch.]

Section 14Verify source

§ 15ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 15. Liability of the Board for damagesProvision

The Authority remains liable to pay compensation or damages to any person for injury to that person, their property or interests caused by the exercise of powers under this Act or any other written law, or by the (wholly or partially) failure of works.

Section 15. Liability of the Board for damages Section The provisions of section 14 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or by any other written law or by the failure, whether wholly or partially, of any works. [Act No. 18 of 2018 , Sch.]

Section 15Verify source

§ 16ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 16. Liability for damage or loss on application of ActProvision

A person who suffers damage or loss from wrongful seizure, removal or detention of alleged counterfeit goods may claim compensation against the complainant, but compensation is payable only where the complaint was false, negligent or laid in bad faith; claims against the Authority are barred after 12 months from the date of seizure, removal or detention.

Section 16. Liability for damage or loss on application of Act Section 16(1) Any person who suffers damage or loss caused by wrongful seizure, removal or detention of goods alleged to be counterfeit goods pursuant to a complaint laid with the Executive Director in accordance with the provisions of this Act, shall be entitled to claim compensation for the damage or loss suffered by him against the complainant: Provided that compensation shall only be paid where the complaint was false, negligent or laid in bad faith. Section 16(2)(a) in the seizure or removal of the alleged counterfeit goods, the inspector, or, in the detention and storage of those goods, the person so in charge, depending on the circumstances, has been grossly negligent; or Section 16(2)(b) the inspector or the person so in charge, as the case may be, in the seizure, removal, detention or storage of those goods, acted in bad faith. Section 16(3) Reference in subsection (2) (a) and (b) to an inspector or to a person in charge of a counterfeit goods depot shall be construed to include any person acting on the instruction or under the supervision of the inspector or the person so in charge, as the case may be. Section 16(3A) Notwithstanding the provisions of any other written law for the time being in force, no claim under this Act shall be brought against the Authority for any alleged damage to or loss of any goods after the expiry of a period of twelve months from the date of the seizure, removal or detention of the goods, as the case may be. Section 16(3B) The provisions of Part IV of the Government Proceedings Act shall apply mutatis mutandis to the Agency in relation to any execution of any judgment, decree or order against the Authority issued by any Court or tribunal or any other competent authority. Section 16(4)(a) the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or a representative who shall be the chairperson; and Section 16(4)(b) fourteen other members drawn from various agencies involved in the protection and enforcement of intellectual property rights.

Section 16Verify source

§ 3ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 3. Establishment of the AuthorityProvision

Creates the Anti-Counterfeit Authority.

Section 3. Establishment of the Authority Section 3(1) There is hereby established an Authority to be known as the Anti-Counterfeit Authority. Section 3(2)(a) suing and being sued; Section 3(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; Section 3(2)(c) borrowing and lending money; Section 3(2)(d) charging fees for services rendered by it; Section 3(2)(e) entering into contracts; and Section 3(2)(f) doing or performing all such other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done by a body corporate.

Section 3Verify source

§ 4ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 4. HeadquartersProvision

The headquarters of the Authority shall be in Nairobi.

Section 4. Headquarters Section The headquarters of the Authority shall be in Nairobi. [Act No. 18 of 2018 , Sch.]

Section 4Verify source

§ 5ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 5. Functions of the AuthorityProvision

The Authority must enlighten and inform the public on matters relating to counterfeiting.

Section 5. Functions of the Authority Section enlighten and inform the public on matters relating to counterfeiting;

Section 5Verify source

§ 6ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 6. Board of the AuthorityProvision

Section 6 lists who sits on the Authority's Board (specified office-holders and representatives) and sets a qualification rule: a person does not qualify to be appointed Chairperson unless they hold a law or science degree from a recognised institution and have at least five years' working experience in trade, industry or intellectual property.

Section 6. Board of the Authority Section 6(1)(a) a Chairperson appointed by the Cabinet Secretary from amongst the members appointed under paragraph (h); Section 6(1)(b) the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or his or her representative; Section 6(1)(c) the Principal Secretary in the Ministry for the time being responsible for matters relating to finance or his or her representative; Section 6(1)(cc) the Attorney-General or his representative; Section 6(1)(d) deleted by ActNo. 25 of 2015, Sch.; Section 6(1)(e) the Commissioner-General of the Kenya Revenue Authority, who may be represented by the Commissioner of Customs; Section 6(1)(f) the Managing Director of the Kenya Bureau of Standards; Section 6(1)(g) the Chief Executive of the Kenya Association of Manufacturers or a representative, being a person who meets the qualifications set out in paragraph (h); and Section 6(1)(h) intellectual property rights; Section 6(1)(h)(i) intellectual property rights; Section 6(1)(h)(ii) consumer protection, or Section 6(1)(h)(iii) trade. Section 6(2) A person shall not qualify to be appointed as Chairperson under subsection (1)(a) unless such person is a holder of a degree in law or science from a recognised institution, and has at least five years working experience in the field of trade, industry or intellectual property. [Act No. 12 of 2012 , Sch., Act No. 18 of 2014 , Sch., Act No. 25 of 2015 , Sch., Act No. 11 of 2017 , Sch., Act No. 18 of 2018 , Sch.]

Section 6Verify source

§ 7ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 7. Powers of the BoardProvision

The Board must formulate policies for the organisation, management and implementation of the Authority's objects, with approval of the Cabinet Secretary.

Section 7. Powers of the Board Section formulate, with approval of the Cabinet Secretary, policies pertaining to the organisation, management and implementation of the objects of the Authority;

Section 7Verify source

§ 8ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 8. Conduct of business and affairs of the BoardProvision

The Board may regulate its own procedure except as provided in the Schedule.

Section 8. Conduct of business and affairs of the Board Section 8(1) The conduct and regulation of the business and affairs of the Board shall be as provided for in the Schedule. Section 8(2) Except as provided for in the Schedule, the Board may regulate its own procedure.

Section 8Verify source

§ 9ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY - 9. Remuneration of Board membersProvision

The members of the Board are to be paid remuneration, fees, allowances and disbursements for expenses, subject to approval by the Cabinet Secretary responsible for finance and on the Board's recommendation.

Section 9. Remuneration of Board members Section The members of the Board shall be paid such remuneration, fees, allowances and disbursements for expenses as may be approved by the Cabinet Secretary for the time being responsible for finance, on the recommendation of the Board.

Section 9Verify source

Part III

FINANCIAL PROVISIONS

§ 17FINANCIAL PROVISIONS - 17. Funds of the AuthorityProvision

The Authority's funds are the moneys appropriated by Parliament for the purposes of the Authority.

Section 17. Funds of the Authority Section such moneys as may be appropriated by Parliament for the purposes of the Authority;

Section 17Verify source

§ 18FINANCIAL PROVISIONS - 18. Financial yearProvision

The Authority's financial year is the twelve-month period ending on 30 June each year.

Section 18. Financial year Section The financial year of the Authority shall be the period of twelve months ending on the thirtieth of June in each year. [Act No. 18 of 2018 , Sch.]

Section 18Verify source

§ 19FINANCIAL PROVISIONS - 19. Annual estimatesCommencement

The Board must prepare estimates of the Authority’s revenue and expenditure at least three months before each financial year, approve them before the year starts, submit them to the Cabinet Secretary for approval, and after the Cabinet Secretary’s approval the Board may not increase the estimates without the Cabinet Secretary’s consent.

Section 19. Annual estimates Section 19(1) At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of the revenue and expenditure of the Authority for that financial year. Section 19(2)(a) the payment of salaries, allowances and other charges in respect of the officers, agents or members of staff of the Authority; Section 19(2)(b) the payment of pensions, gratuities and other charges in respect of retirement benefits payable to the members of staff of the Authority; Section 19(2)(c) the maintenance of the buildings and grounds of the Authority; Section 19(2)(d) the maintenance, repair and replacement of the equipment and other property of the Authority; and Section 19(2)(e) the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance, replacement of buildings or equipment, or in respect of such other matters as the Board may deem appropriate. Section 19(3) The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and, once approved, shall be submitted to the Cabinet Secretary for approval and, after the Cabinet Secretary’s approval, the Board shall not increase the annual estimates without the consent of the Cabinet Secretary. Section 19(4) No expenditure shall be incurred for the purposes of the Authority except in accordance with the annual estimates approved under subsection (3), or in pursuance of an authorisation of the Board given with prior written approval of the Cabinet Secretary, and the Cabinet Secretary for the time being responsible for finance. [Act No. 18 of 2018 , Sch.]

Section 19Verify source

§ 20FINANCIAL PROVISIONS - 20. Accounts and auditProvision

Section 20. Accounts and audit Section 20(1) The Board shall cause to be kept proper books and records of accounts of the income, expenditure, assets and liabilities of the Authority. Section 20(2)(a) a statement of the income and expenditure of the Authority during that financial year; and Section 20(2)(b) a statement of the assets and liabilities of the Authority on the last day of that financial year. Section 20(3) The accounts of the Authority shall be audited and reported upon by the Auditor-General in accordance with the provisions of the Public Audit Act (Cap. 412B). [Act No. 18 of 2018 , Sch.]

Section 20Verify source

§ 21FINANCIAL PROVISIONS - 21. Investment of fundsProvision

The Board may invest the Authority's funds in certain securities (including those approved by the Cabinet Secretary for finance) and may place surplus moneys on deposit with banks subject to the Cabinet Secretary's approval.

Section 21. Investment of funds Section 21(1) The Board may invest any of the funds of the Authority in securities in which the Board may by law invest trust funds, or in any other securities which the Cabinet Secretary for the time being responsible for finance may, from time to time, approve. Section 21(2) The Board may, subject to the approval of the Cabinet Secretary for the time being responsible for finance, place on deposit with such bank or banks as it may determine, any moneys not immediately required for the purposes of the Authority. [Act No. 18 of 2018 , Sch.]

Section 21Verify source

Part IV

INSPECTION

§ 22INSPECTION - 22. Appointment of inspectorsAmendment

The Board must appoint inspectors and issue them certificates; inspectors hold office on terms set by the Board and have full police powers; the Board may designate, amend or withdraw inspectors.

Section 22. Appointment of inspectors Section 22(1) The Board shall, for purposes of enforcing the provisions of this Act, appoint such number of inspectors as the Board may consider appropriate and shall issue to them, in writing or in such form as may be prescribed, certificates of authority to act as inspectors. Section 22(2)(a) hold office subject to such terms and conditions as the Board may determine; Section 22(2)(b) have full police powers in the exercise of their duties under this Act. Section 22(3) In addition to inspectors appointed under subsection (1), any member of the Board, police officer, authorised customs officer, trade development officer, industrial development officer, trade mark and patent examiner, seed and plant inspector, public health inspector, and inspectors appointed under the Standards Act (Cap. 496), the Weights and Measures Act (Cap. 513), the Copyright Act (Cap. 130), the Food, Drugs and Chemical Substances Act (Cap. 254), the Pharmacy and Poisons Act (Cap. 244) and the Pest Control Products Act (Cap. 346) are hereby designated as inspectors for purposes of this Act. Section 22(4) The Board may designate other public officers to be inspectors for purposes of this Act. Section 22(5) The Board may amend or withdraw appointment of inspectors or designated inspectors under this section. Section 22(6) Appointment of inspectors under this section shall be by notice in the Gazette .

Section 22Verify source

§ 23INSPECTION - 23. Powers of inspectorsOffence

Inspectors have broad powers to enter, inspect, search, seize goods and tools, question persons, arrest without warrant subject to conditions, and investigate offences related to counterfeiting; persons need not answer questions that might incriminate them.

Section 23. Powers of inspectors Section 23(1)(a) enter upon and inspect any place, premises or vehicle at, on or in which goods that are reasonably suspected of being counterfeit goods are to be found, or on reasonable grounds are suspected to be manufactured, produced or made, and search such place, premises or vehicle and any person found in such place, premises or vehicle, for such goods and for any other evidence of the alleged or suspected act of dealing in counterfeit goods, and for purposes of entering, inspecting and searching such a vehicle, an inspector may stop the vehicle, wherever found, including on any public road or at any other public place; Section 23(1)(b) take the steps that may be reasonably necessary to terminate the manufacturing, production or making of counterfeit goods, or any other act of dealing in counterfeit goods being performed, at, on or in such place, premises or vehicle, and to prevent the recurrence of any such act in future: Provided that those steps shall not include the destruction or alienation of the relevant goods unless authorized by an order issued by a court of competent jurisdiction; Section 23(1)(c) seize detain, and, where applicable, remove for detention, all the goods in question found at, on or in such place, premises or vehicle; Section 23(1)(d) seize detain, and, where applicable, remove for detention, any tools which may be used in the manufacturing, production, making or packaging of those goods or applying a trade mark or that exclusive mark on such goods; Section 23(1)(e) question that person and take down a statement from him; Section 23(1)(e)(i) question that person and take down a statement from him; Section 23(1)(e)(ii) demand and procure from that person any book, document, article, item or object which in any way may be relevant to nature, quantity, location, source or destination of the goods in question, or the identity and address of anyone involved or appears to be involved as a supplier, manufacturer, producer, maker, distributor, wholesaler, retailer, importer, exporter or clearing and forwarding agent of, or other dealer in, the goods in question; and Section 23(1)(f) the goods in question are found, or are manufactured, produced or made, either wholly or in part; Section 23(1)(f)(i) the goods in question are found, or are manufactured, produced or made, either wholly or in part; Section 23(1)(f)(ii) any trade mark, any exclusive mark or any work which is the subject matter of copyright, is applied to those goods; Section 23(1)(f)(iii) the packaging for those goods is prepared; or Section 23(1)(f)(iv) the packaging of those goods is undertaken. Section 23(2) Nothing in this section shall be construed as requiring a person to answer any question or give any information if to do so might incriminate him. Section 23(3) An inspector may arrest, without a warrant, any person whom he suspects upon reasonable grounds of having committed any offence under this Act and may search and detain such a person: Provided that no person shall be arrested under this section unless he obstructs or hinders the inspector or refuses to give his name and address to the inspector or to produce to him satisfactory evidence of his identity, or gives a name and address which the inspector has reason to believe to be false or it appears to the inspector that such a person may not be found or made answerable to justice without unreasonable delay, trouble or expense. Section 23(4) An inspector shall have the power to investigate any offence related or connected to counterfeiting notwithstanding that such an offence is not expressed as such under the provisions of this Act. Section 23(5) An inspector shall have the same powers as are exercised by a customs officer with regard to importation of counterfeit goods under the East African Community Customs Management Act, 2004. Section 23(6)(a) that any goods, books or documents which an inspector has power under this section to inspect are on any premises and that their inspection is likely to disclose evidence of commission of an offence under this Act; or Section 23(6)(a)(i) that any goods, books or documents which an inspector has power under this section to inspect are on any premises and that their inspection is likely to disclose evidence of commission of an offence under this Act; or Section 23(6)(a)(ii) that any offence under this Act has been, is being, or is about to be committed on any premises; and Section 23(6)(b) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this section has been given to the occupier; or Section 23(6)(b)(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this section has been given to the occupier; or Section 23(6)(b)(ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the premises are unoccupied, or that the occupier is temporarily absent and it might defeat the object of the entry to await his return, Section 23(7) An inspector entering any premises by virtue of this section may take with him such other persons and such equipment as may appear to him to be necessary; and on leaving any premises which he has so entered by virtue of a warrant he shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them. [Act No. 18 of 2018 , Sch.]

Section 23Verify source

§ 24INSPECTION - 24. Obstruction and breaking of sealOffence

Section 24 lists several offences relating to inspectors and seals: wilfully obstructing an inspector in the discharge of his duties; wilfully failing to comply with a requirement properly made by an inspector; without reasonable cause failing to give assistance or information reasonably required by an inspector; making false statements when giving such information; breaking, damaging or tampering with a seal applied by an inspector; and removing goods or items sealed, sealed-off, detained or stored under this Act.

Section 24. Obstruction and breaking of seal Section 24(1)(a) wilfully obstructs an inspector in the discharge of his duties; Section 24(1)(b) wilfully fails to comply with any requirement properly made to him by an inspector; Section 24(1)(c) without reasonable cause, fails to give to an inspector any assistance or information which the inspector may reasonably require of that person for the purpose of the performance of his duties under this Act; or Section 24(1)(d) in giving any such information as is mentioned in paragraph (c), makes any statement which he knows to be false or does not believe to be true, Section 24(2)(a) breaks, damages or tampers with a seal applied by an inspector under this Act; or Section 24(2)(b) removes any goods, documents, articles, items, objects or things sealed or sealed-off by an inspector or detained or stored at a counterfeit goods depot under this Act,

Section 24Verify source

§ 25INSPECTION - 25. Duty of inspector upon seizure of goodsProvision

Inspectors must seal, identify, categorize seized goods, prepare an inventory in quadruplicate and obtain certification; provide inventory copies within five working days; remove or secure goods; inspector may require additional information from a complainant; an aggrieved person may apply to court for return of goods; the court may grant or refuse relief and make orders including damages and costs.

Section 25. Duty of inspector upon seizure of goods Section 25(1)(a) forthwith seal, clearly identify and categorize the goods and prepare, in quadruplicate, an inventory of such goods in the prescribed form and cause the person from whom the goods are seized to check the inventory for correctness, and, if correct, cause that person to make a certificate under his signature on each copy of the inventory and if the seized goods are removed under paragraph (c), the inspector shall endorse that fact under his signature on every copy of the inventory, in which case the inventory shall also serve as a receipt; Section 25(1)(b) furnish one copy of the inventory to the person from whom the goods are seized and another to the complainant, if any, within five working days after the seizure; Section 25(1)(c) as soon as possible, remove the goods, if transportable, to a counterfeit goods depot for safe storage, or, if not capable of being removed or transported, declare the goods to have been seized in situ, and seal off or seal and lock up the goods or place them under guard at the place where they were found, and thereupon that place shall be deemed to be a counterfeit goods depot; and Section 25(1)(d) the person from whom those goods are seized; and Section 25(1)(d)(i) the person from whom those goods are seized; and Section 25(1)(d)(ii) either the complainant, where the inspector exercised his powers pursuant to a complaint laid in accordance with section 33(1); or Section 25(1)(d)(iii) the person who, in relation to those goods, qualifies under section 33 (1) to be a complainant, but who had not yet so laid a complaint at the time when the inspector exercised those powers on his own initiative in accordance with section 33 (4). Section 25(2) An inspector may require a complainant to disclose any additional information, which may be relevant to the action that has been taken. Section 25(3) Any person aggrieved by a seizure of goods under section 23 may, at any time, apply to a court of competent jurisdiction for a determination that the seized goods are not counterfeit goods and for an order that they be returned to him. Section 25(4) The court may grant or refuse the relief applied for under subsection (3) and make such order as it deems fit in the circumstances, including an order as to the payment of damages and costs.

Section 25Verify source

§ 26INSPECTION - 26. Evidence and presumptionsInterpretation

Section 26 sets out rules on evidence and legal presumptions in proceedings about counterfeit goods, including availability of inspector-held documentary evidence to complainants on application; inspector statements as prima facie evidence; presumptions that a complainant is the owner or exclusive licensee until proved otherwise; and presumptions that a trader found with more than private-use quantity possessed goods for trade until the contrary is proved.

Section 26. Evidence and presumptions Section 26(1) Copies of any statement taken down or other documentary evidence procured by an inspector in the course of exercising his powers under this Act, may be made available to a complainant upon an application in the prescribed manner. Section 26(2) In any civil proceedings concerning an act of dealing in counterfeit goods by any person, it shall be permissible to present evidence about that person’s conviction or convictions on account of an offence or offences founded on acts of dealing in counterfeit goods. Section 26(3) A statement made by an inspector to the effect that the goods specified in the inventory attached to that statement are goods seized by him from a specified person at a specified place and on a specified date shall be prima facie evidence of the facts stated therein concerning the counterfeit goods or any act of dealing therein. Section 26(4) Where the subsistence of an intellectual property right in respect of protected goods or any person’s title to or interest in such intellectual property right is in issue in any civil or criminal proceedings concerning counterfeit goods, the substance of, title to or interest in such intellectual property right, where it is alleged to encompass the rights in respect of industrial property as contemplated in the definition of "intellectual property right" in this Act, may be proved in accordance with the provisions of the various industrial property legislation. Section 26(5) Where the subsistence of intellectual property right in respect of suspected counterfeit goods or the title or interest in intellectual property right is in issue, the complainant shall be presumed to be the owner of the copyright or the related right or, as the case maybe, the exclusive licensee of any such right, until the contrary is proved. Section 26(6) Where a name or mark purporting to be that of the author of a work or the owner of copyright or related rights is either associated with copies of a work or other protected subject matter, or its related packaging, or appears in connection with a work or other protected subject matter, this shall be admissible as evidence of the fact indicated and such evidence shall be presumed to be correct, until the contrary is proved. Section 26(7)(a) to require oral evidence to be given; Section 26(7)(b) to order that the evidence of a person who resides or is for the time being outside the area of jurisdiction of the court, be taken by means of interrogatories. Section 26(8) Where any person who trades in protected goods featuring, bearing, incorporating or embodying the subject matter of particular intellectual property right is proved to have been found in possession of suspected counterfeit goods to which the subject matter of the same intellectual property right has been applied, it shall, in any civil or criminal proceedings concerning an act of dealing in counterfeit goods found in his possession, be presumed, until the contrary is proved, that such person was in possession of the goods for the purpose of trade if the quantity of those goods is more than that which, in the circumstances, reasonably may be required for his private and domestic use. Section 26(9) In any criminal or civil proceedings concerning an act of dealing in counterfeit goods, the evidence of any person in the employment of the intellectual property rights holder or its agent with demonstrable training offered by such intellectual property rights holder or experience in the identification of the intellectual property rights holder's products shall be admissible as expert evidence. [Act No. 18 of 2018 , Sch.]

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§ 27INSPECTION - 27. Storage and access to seized goodsProvision

Court orders may require return, release, destruction or other disposal of seized goods; counterfeit goods are to be destroyed at the expense of the local manufacturer or importer or reshipped. Upon application, seized goods must be made available for inspection within five working days; the Executive Director may provide samples within five working days; an inspector may take samples for testing.

Section 27. Storage and access to seized goods Section 27(1)(a) is ordered by a court to return, release, destroy or otherwise dispose of those goods as specified in the order: Provided that in the case of counterfeit goods, such goods shall be destroyed at the expense of the local manufacturer or importer, as the case may be, based on the environmental considerations and the capacity of the country to destroy the goods, or shall be reshipped; Section 27(1)(b) is directed by an inspector under section 28 to release the goods to the person from whom they were seized. Section 27(2) Upon an application in the prescribed manner, goods seized under section 23(1) shall, within five working days, be made available for inspection by the complainant or prospective complainant, if any, the suspect or any other interested person, at the counterfeit goods depot at any reasonable time. Section 27(3) Upon an application in the prescribed manner, the Executive Director may make a sample of the seized goods available within a period of five working days to the applicant for testing or analysis. Section 27(4) An inspector may take, in the prescribed manner, samples of goods in reasonable quantities for testing or analysis.

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§ 28INSPECTION - 28. Release of seized goodsCommencement

Rules for return, forfeiture and destruction of seized goods: goods seized under section 23 are to be returned to the person they were seized from within three months unless charges are filed; if prosecuted and convicted the court may order forfeiture to the Government for destruction; the court must order destruction or other disposal of goods that appear counterfeit; an inspector may apply for forfeiture where the accused absconds or goods are unclaimed.

Section 28. Release of seized goods Section 28(1) Where any goods are seized and detained under section 23 , they shall be returned, less any portion thereof which has been reasonably utilized for the purpose of any test or analysis, to the person from whom they were seized within a period of three months after the date of seizure unless, within such period, some person is charged with an offence under this Act and it is alleged that such offence was committed in relation to or in connection with such goods. Section 28(2) Where a prosecution for an offence under this Act is commenced within the period mentioned in subsection (1), and any person is convicted of that offence, the court which made the conviction may order that any goods seized and detained in relation to or in connection with which such offence was committed shall be forfeited to the Government for destruction at the expense of the person so convicted. Section 28(3) The court before which a person is charged with an offence under this Act shall, whether such person is convicted of the offence or not, order that any goods in his possession which appear to the court to be counterfeit goods or to be tools used or intended to be used for making counterfeit goods, be destroyed or otherwise dealt with as the court may deem appropriate. Section 28(4) Where a person charged with an offence under this Act absconds and does not appear in court or where counterfeit goods are seized but are not claimed, an inspector may apply to have the counterfeit goods forfeited to the State for destruction.

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§ 29INSPECTION - 29. Counterfeit goods depotProvision

The Board may designate places as counterfeit goods depots (by notice in the Gazette), and the Board shall appoint a fit and proper person to be in charge of a counterfeit goods depot.

Section 29. Counterfeit goods depot Section 29(1) The Board may, by notice in the Gazette , designate any place to be a counterfeit goods depot for the purposes of this Act. Section 29(2) The Board shall appoint a fit and proper person to be in charge of a counterfeit goods depot.

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§ 30INSPECTION - 30. Conduct of prosecutionsProvision

The Director of Public Prosecutions may appoint public prosecutors for cases under this Act; the Board is deemed to be a public authority for specified Criminal Procedure Code purposes.

Section 30. Conduct of prosecutions Section 30(1) The Director of Public Prosecutions may, pursuant to the provisions of the Criminal Procedure Code (Cap. 75), appoint public prosecutors for purposes of cases arising under this Act. Section 30(2) The Board shall, for purposes of section 171(4) of the Criminal Procedure Code (Cap. 75), be deemed to be a public authority. [Act No. 12 of 2012 , Sch.]

Section 30Verify source

§ 31INSPECTION - 31. Disclosure of information and impersonationOffence

It is an offence for any person who is not an inspector to pretend to act as an inspector (impersonation).

Section 31. Disclosure of information and impersonation Section 31(1)(a) any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of powers of entry conferred on him under this Act; or Section 31(1)(b) any information obtained by him in the performance of functions under this Act, Section 31(2) If any person who is not an inspector purports to act as such, such person commits an offence.

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Part V

COUNTERFEIT GOODS

§ 32COUNTERFEIT GOODS - 32. OffencesOffence

It is an offence to have in his possession or control in the course of trade any counterfeit goods.

Section 32. Offences Section have in his possession or control in the course of trade, any counterfeit goods;

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§ 33COUNTERFEIT GOODS - 33. Laying a complaintOffence

Holders of IP rights (and their successors, licensees or agents) and consumers may lay complaints with the Executive Director about suspected offences involving protected goods; complainants must provide prescribed information satisfying the Executive Director; inspectors and the Executive Director may also take steps on their own initiative.

Section 33. Laying a complaint Section 33(1) Any holder of an intellectual property right, his successor in title, licensee or agent may, in respect of any protected goods, where he has reasonable cause to suspect that an offence under section 32 has been or is being committed, or is likely to be committed, by any person, lay a complaint with the Executive Director. Section 33(2) The complainant shall furnish, to the satisfaction of the Executive Director, such information and particulars, as may be prescribed, to the effect that the goods with reference to which that offence has allegedly been, or is being, or is likely to be, committed, prima facie are counterfeit goods. Section 33(3)(a) that the complainant is a person entitled to lay a complaint under subsection (1); and Section 33(3)(b) the goods claimed to be protected goods, prima facie are protected goods; and Section 33(3)(b)(i) the goods claimed to be protected goods, prima facie are protected goods; and Section 33(3)(b)(ii) the intellectual property right, the subject matter of which is alleged to have been applied to the offending goods, prima facie subsists; and Section 33(3)(c) that the suspicion on which the complaint is based appears to be reasonable in the circumstances, Section 33(4) The preceding provisions of this section shall not preclude an inspector from taking any appropriate steps on his own initiative including receiving and acting on consumer complaints in relation to any act or conduct believed or suspected to be an act of dealing in counterfeit goods, provided the provisions of this Act are complied with. Section 33(5) Nothing in this section shall preclude the Executive Director from causing appropriate steps to be taken in accordance with section 23 (1) in the event of an infringement of an intellectual property right for which no complaint has been lodged by the holder thereof in accordance with subsection (1) of this section. Section 33(6) Notwithstanding the provision of subsections (1) and (2) of this section, a consumer or purchaser of goods may, where he has reasonable cause to suspect that an offence under this Act has been committed, is being committed or is likely to be committed by any person, lay a complaint with the Executive Director who shall cause appropriate steps to be taken in accordance with the provisions of this Act. [Act No. 18 of 2018 , Sch.]

Section 33Verify source

§ 34COUNTERFEIT GOODS - 34. Powers of the Commissioner or Executive DirectorProvision

Customs authorities may seize and detain specified counterfeit goods imported into or entering Kenya after an application is granted; authorized customs officers or inspectors must seize alleged counterfeit goods; persons wrongfully affected may claim compensation where the application was false, negligent or in bad faith.

Section 34. Powers of the Commissioner or Executive Director Section 34(1)(a) goods featuring, bearing, embodying or incorporating the subject matter of that intellectual property right or to which the subject matter of that right has been applied; and Section 34(1)(b) imported into or enter Kenya during the period specified in the application: Section 34(2)(a) a specimen of the goods to which the subject matter of his relevant intellectual property right relates; Section 34(2)(b) the subsistence and extent of that intellectual property right; and Section 34(2)(b)(i) the subsistence and extent of that intellectual property right; and Section 34(2)(b)(ii) his title to that right. Section 34(3)(a) the goods claimed to be protected are prima facie protected goods; Section 34(3)(b) the intellectual property right, the subject matter of which relates to the protected goods, prima facie subsists; and Section 34(3)(c) the applicant prima facie is the owner of that intellectual property right. Section 34(4) When an application made under subsection (1) has been granted and notice thereof given under subsection (5), the counterfeit goods of the type with reference to which that application was made (hereafter called the stipulated goods), or suspected on reasonable grounds to be stipulated goods, and imported into or entering Kenya from time to time during the period determined by the Commissioner or Executive Director, which may be shorter than the period applied for, may be seized and detained by the customs authorities in accordance with the East African Community Customs Management Act, 2004 subject to subsections (6) and (7). Section 34(5)(a) if granted, state the period during which any stipulated goods being imported into or entering Kenya will be made subject to seizure and become subject to detention under subsection (4); Section 34(5)(b) if not granted, state the reasons for refusal to be granted. Section 34(6)(a) an authorized customs officer or Inspector shall seize the counterfeit goods or alleged or suspected counterfeit goods, in accordance with subsection (1) or (4); Section 34(6)(b) the provisions in accordance with or subject to which the powers contemplated in section 33 (4) may be exercised by an inspector so acting on his own initiative; Section 34(6)(b)(i) the provisions in accordance with or subject to which the powers contemplated in section 33 (4) may be exercised by an inspector so acting on his own initiative; Section 34(6)(b)(ii) the provisions by which any other power or any right, function, duty, obligation, exemption, indemnity or liability is conferred or imposed on an inspector so acting: Section 34(7) Any person who suffers damage or loss caused by wrongful seizure, removal or detention of goods alleged to be counterfeit goods pursuant to an application made to the Commissioner or Executive Director shall be entitled to claim compensation for the damage or loss suffered by him against the applicant: Provided that compensation shall only be paid where the application for seizure and detention was false or negligent or made in bad faith. Section 34(8)(a) any failure to detect or seize stipulated goods; Section 34(8)(b) the inadvertent release of any such goods; or Section 34(8)(c) any action taken in good faith in respect of such goods. Section 34(9) For purposes of this section, "customs authority" means the Kenya Revenue Authority established under the Kenya Revenue Authority Act ( Cap. 469 ) or the Authority. [Act No. 18 of 2018 , Sch.]

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§ 34ACOUNTERFEIT GOODS - 34A. Compounding of offencesOffence

The Executive Director may, when satisfied an offence carrying a fine or forfeiture has been committed, order payment of a sum not exceeding the fine and may order forfeiture; this power is exercisable only if the person admits the offence in the prescribed form and requests compounding, and the order must be in writing with specified contents and is final and enforceable; the person is not liable to further prosecution for the offence.

Section 34A. Compounding of offences Section 34A(1) Subject to subsection (2), the Executive Director may, where satisfied that any person has committed an offence under this Act in respect of which a fine is provided for or in respect of which anything is liable to forfeiture, order such person to pay a sum of money, not exceeding the amount of the fine to which the person would have been liable if he or she had been prosecuted and convicted for the offence, as he may deem fit, and the Executive Director may order anything liable to forfeiture in connection with the offence to be forfeited. Section 34A(2) The Executive Director shall not exercise the powers conferred under subsection (1) unless the person admits in the prescribed form that he or she has committed the offence and requests the Executive Director to deal with such offence under this section. Section 34A(3)(a) the order shall be in writing and shall have attached to it the request of the person to the Executive Director to deal with the matter; Section 34A(3)(b) the order shall specify the offence which the person committed and the penalty imposed by the Executive Director; Section 34A(3)(c) a copy of the order shall be given to the person if the person so requests; Section 34A(3)(d) the person against whom an order is issued under this section shall not be liable to any further prosecution in respect of the offence, and where any prosecution is subsequently brought in respect thereof, it shall be a defence for the person to prove that the offence which he or she is charged with has been compounded under this section; and Section 34A(3)(e) the order shall be final, and may be enforced in the same manner as a decree or order of the High Court.

Section 34AVerify source

§ 34BCOUNTERFEIT GOODS - 34B. TrademarkProvision

Trademarks for goods to be imported into Kenya must be recorded with the Agency; recordation is effective on approval, lasts one year or the current registration period (whichever is shorter), owners must apply for renewal not later than 30 days before expiry, the Agency issues an anti-counterfeit certification mark for compliant imports, and may seize and destroy imported goods found in Kenya without the security device.

Section 34B. Trademark Section 34B(1) Trademarks relating to goods to be imported into Kenya, irrespective of the place of registration, shall be recorded with the Agency, in the prescribed manner if the registration is current. Section 34B(2) Applicants for recordation of trademarks shall be notified of the approval or denial of an application filed under this section in a prescribed manner by notice in the Anti-Counterfeit newsletter published by the Agency. Section 34B(3)(a) the name, complete business address, and citizenship of the trademark owner or owners (if a partnership, the citizenship of each partner; if an association or corporation the State, country, or other political jurisdiction within which it was organized, incorporated, or created); Section 34B(3)(b) the places of manufacture of goods bearing the recorded trademark; Section 34B(3)(c) sample of the trademarked goods or a sufficient digital photographic representation of the trademarked goods with appropriate details for identification and differentiation from any counterfeits; Section 34B(3)(d) the name and principal business address of each foreign person or business entity authorized or licensed to use the trademark and a statement as to the use authorized; and Section 34B(3)(e) the identity of any parent or subsidiary company or other foreign company under common ownership or control which uses the trademark abroad. Section 34B(4)(a) a status copy of the certificate of registration certified by the registering authority showing title to be presently in the name of the Applicant; Section 34B(4)(b) the application shall be accompanied by a fee set out in the Second Schedule to the Act: Section 34B(5) The recordation of the trademark and protection thereunder shall be effective on the date an application for recordation is approved. Section 34B(6) The recordation of a trademark shall remain in force for a period of one year from the date of approval of the application for recordation or the current registration period of the trademark, whichever is shorter. Section 34B(7) Recordation of a trademark shall be cancelled if the trademark registration is finally cancelled or revoked. Section 34B(8)(a) complying with subsection (4) hereinabove; Section 34B(8)(b) describing any time limit on the rights of ownership transferred; Section 34B(8)(c) submitting a status copy of the certificate of registration certified by the registering authority showing title to be presently in the name of the new owner; and Section 34B(8)(d) paying a fee as prescribed in the Second Schedule to the Act. Section 34B(9)(a) a status copy of the certificate of registration certified by the registering authority showing title to be presently in the name as changed; and Section 34B(9)(b) a fee as prescribed in the Second Schedule to the Act. Section 34B(10) The owner of a recorded trademark shall submit a written application in the prescribed manner to the Agency not later than 30 days to the expiration of the current recordation. Section 34B(11)(a) a status copy of the certificate of registration certified by the registering authority showing the title to be in the name of the applicant; and Section 34B(11)(b) a statement describing any change of ownership or in the name of the owner and any change of addresses of the owners and places of manufacture; Section 34B(11)(c) a fee as prescribed in the second schedule to the Act. Section 34B(12) The provisions of this Section shall apply to the recordation of copyrights, trade names or any other form of intellectual property rights mutatis mutandis . Section 34B(13) The Agency shall after satisfying itself that imported goods have complied with the provisions of this section issue to the importer of goods a certification mark in the form of an anti-counterfeit security device at a fee to be set out in the Second Schedule to the Act. Section 34B(14) The Agency shall have the power to seize and destroy any goods originally imported into Kenya but found within Kenya that do not bear the anti-counterfeit security device. [Act No. 18 of 2018 , Sch.]

Section 34BVerify source

Part VI

MISCELLANEOUS

§ 35MISCELLANEOUS - 35. PenaltiesOffence

Section 35 sets penalties for dealing in counterfeit goods, including imprisonment and fines varying by conviction count; courts may order forfeiture of monetary benefits to the Agency.

Section 35. Penalties Section 35(1)(a) in the case of a first conviction, to imprisonment for a term not exceeding five years, or to a fine, in respect of each article or item involved in the particular act of dealing in counterfeit goods to which the offence relates, not less than three times the value of the prevailing retail price of the goods, or both; Section 35(1)(b) in the case of a second or any subsequent conviction, to imprisonment for a term not exceeding fifteen years, or to a fine, not less than five times the value of the prevailing retail price of the goods, or both. Section 35(2) A person convicted of an offence under section 24 or 31, shall be liable to imprisonment for a term not exceeding three years, or a fine not exceeding two million shillings, or both. Section 35(3)(a) shall, when considering which penalty to impose, take into account, inter alia, any risk to human or animal life, health or safety or danger to property, whether movable or immovable, that may arise from the presence or use of the counterfeit goods in question; Section 35(3)(b) the source from which the counterfeit goods involved in the commission of the offence, were obtained; Section 35(3)(b)(i) the source from which the counterfeit goods involved in the commission of the offence, were obtained; Section 35(3)(b)(ii) the identity of the persons involved in the importation, exportation, manufacture, production or making of those counterfeit goods; Section 35(3)(b)(iii) the identity and, if reasonably demanded, the addresses or whereabouts of the persons involved in the distribution of those goods; Section 35(3)(b)(iv) the channels for the distribution of those goods. Section 35(4) Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to, any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate commits an offence. Section 35(5) Where a Court has concluded the hearing of a matter in any criminal proceedings whether the suspect is convicted or acquitted and the goods in the opinion of Court are counterfeit and it appears that the suspect has benefited or obtained some monetary advantage from dealing in counterfeit goods the subject matter of the criminal proceedings, the Court shall on application of the prosecutor order the suspect to forfeit that benefit or monetary advantage to the Agency within a period of three months and in default the Agency may trace and recover that benefit or advantage from the suspect. [Act No. 18 of 2018 , Sch.]

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§ 36MISCELLANEOUS - 36. Exemption from stamp dutyProvision

Instruments executed by, on behalf of, or in favour of the Authority are exempt from stamp duty that they would otherwise be liable to pay.

Section 36. Exemption from stamp duty Section No duty shall be chargeable under the Stamp Duty Act (Cap. 480) in respect of any instrument executed by, or on behalf of, or in favour of the Authority, which, but for this section, the Authority shall would be liable to pay. [Act No. 18 of 2018 , Sch.]

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§ 37MISCELLANEOUS - 37. RegulationsProvision

Section 37. Regulations Section 37(1) The Cabinet Secretary may make regulations generally for the better carrying into effect the provisions of this Act. Section 37(2)(a) anything required by this Act to be prescribed; Section 37(2)(b) any inventory to be prepared or made under this Act; Section 37(2)(c) any matter necessary or expedient for the proper and effective control, management and administration of a counterfeit goods depot and the proper care of the goods detained therein; Section 37(2)(d) the manner and procedures for proper disposal of counterfeit goods; Section 37(2)(e) any other matter that may be necessary or expedient for the proper and effective administration of this Act.

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Legislative relationships

5 referenced instruments

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2 instruments

Authority as are necessary for the proper discharge of its functions under this Act
Section 11
Board under this Act
Section 13

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3 instruments

Part IV of the Government Proceedings Act
Section 16
Public Audit Act
Section 20
Public Prosecutions may appoint public prosecutors for cases under this Act
Section 30

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