Merchant Shipping Act
Part 3 of 3 · provisions 401–454
The Act may be cited as the Merchant Shipping Act.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 389
- Version
- 11 Dec 2023
- Language
- en
- Official source
- View official record ↗
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Source attribution: Source: Kenya Law
Statute overview
About this statute
The Act may be cited as the Merchant Shipping Act. Defines a 'Section' as one to which the Load Line Convention applies. Section 3 applies this Act to Kenyan ships wherever they may be; to all other ships while in a port, place, or within Kenya's territorial and other waters; excludes certain government vessels and aircraft when employed otherwise than for profit; the Cabinet Secretary may make regulations about how the Act applies to Government ships used for non-commercial purposes; the Act applies to ships in inland waters. The Director-General or an authorised person may board and inspect ships, enter port facilities, demand documents and take witness testimony; when carrying out duties under subsection (1) they must follow a laid down code of conduct. Section title: "Communication, co-operation and consultation" and reference to "departments and agencies of the Government".
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Provisions of Merchant Shipping Act
Showing 54 of 454
Part XVII
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS
- 395 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 395. Liability for dock owners and port authority
Port authorities and dock owners have their liability for loss or damage to ships or goods limited by reference to the tonnage of the largest Kenya ship within their area; specified calculation and exceptions apply.
Section 395. Liability for dock owners and port authority Section 395(1) This section applies in relation to a port authority and the owners of any dock. Section 395(2) The liability of a port authority or person to whom this section applies for any loss or damage caused to any ship, or to any goods, merchandise or other things whatsoever on board any ship shall be limited in accordance with subsection (5), by reference to the tonnage of the largest Kenya ship which, at the time of the loss or damage is, or within the preceding five years has been, within the area over which an authority or person discharges any functions. Section 395(3) The limitation of liability under this section relates to the whole of any loss and damage which may arise on any one distinct occasion, although such loss and damage may be sustained by more than one person, and shall apply whether the liability arises at common law or under any enactment, and notwithstanding anything contained therein. Section 395(4) This section does not exclude the liability of a port authority or person to which it applies for any loss or damage resulting from any such personal act or omission of the port authority or person as is mentioned in section 389. Section 395(5) The limit of liability shall be ascertained by applying to the ship by reference to which the liability is to be determined, the method of calculation specified in section 391 (b) read with section 394. Section 395(6) For the purposes of subsection (2), a ship shall not be treated as having been within the area over which a port authority discharges any functions by reason only that is has been built or fitted out within the area, or that is has taken shelter within or passed through the area on a voyage between two places both situated outside that area, or that it has loaded or unloaded mails or passengers within the area. Section 395(7) Sections 399 and 400 shall apply for the purposes of this section. Section 395(8) Nothing in this section imposes any liability for any loss or damage where no liability exists apart from this section. Section 395(9) In this section— “dock” includes wet docks and basins, tidal docks and basins, locks, cuts, entrances, dry docks, graving docks, slips, quays, wharves, piers, stages, landing places and jetties; and “owners of any dock” includes any authority or person having the control and management of any dock. - 396 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 396. Limits for passenger claims
For passenger claims for loss of life or personal injury, the shipowner's total liability is limited to 175,000 special drawing rights multiplied by the number of passengers the ship is authorised to carry according to its certificate.
Section 396. Limits for passenger claims Section 396(1) In respect of claims arising on any distinct occasion for loss of life or personal injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an amount of 175,000 special drawing rights multiplied by the number of passengers which the ship is authorised to carry according to the ship’s certificate. Section 396(2)(a) under a contract of passenger carriage; or Section 396(2)(b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods. Section 396(3) In the case of a ship for which there is in force a Passenger Ship Safety Certificate or Passenger Certificate, as the case may be, issued under or recognised by this Act, the ship’s certificate mentioned in subsection (1) shall be that certificate. - 397 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 397. Conversion of Units of Accounts
Section 397 sets out rules for conversion of units of account: (1)(a) the relevant date is the date the limitation fund has been constituted, payment is made, or security is given under section 399; or (1)(b) if no sum has been fixed for that date, the last preceding date for which a sum has been fixed. Subsection (2) states when a particular sum in dollars has been fixed for a particular date or, if not, when a sum has been fixed for the last preceding date.
Section 397. Conversion of Units of Accounts Section 397(1)(a) the date the limitation fund shall have been constituted, payment is made, or security is given under section 399; or Section 397(1)(b) if no sum has been so fixed for that date, the last preceding date for which a sum has been so fixed. Section 397(2)(a) a particular sum in dollars has been fixed as mentioned in subsection (1) for a particular date; or Section 397(2)(b) no sum has been so fixed for that date and that a particular sum in dollars has been so fixed for a date which is the last preceding date for which a sum has been so fixed, - 398 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 398. Aggregation of claims
Limits of liability under section 396 apply to the aggregate of all claims on any distinct occasion against the shipowner and persons for whose acts, neglect or defaults they are responsible; subsection (1) lists categories of claims that are aggregated.
Section 398. Aggregation of claims Section 398(1)(a) against the shipowner and any person for whose act, neglect or default he or they are responsible; Section 398(1)(b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or Section 398(1)(c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to, or in respect of which, the salvage services are rendered and any person for whose act, neglect or default he or they are responsible. Section 398(2) The limits of liability determined in accordance with section 396 shall apply to the aggregate of all claims subject thereto which may arise on any distinct occasion against the shipowner in respect of the ship referred to in section 396, and any person for whose act, neglect or default he may be responsible. - 399 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 399. Limitation fund
A person alleged to be liable may constitute a limitation fund by depositing with the Court an amount at least equivalent to the limit in section 391 or 396 or by producing a guarantee acceptable to the Court (with interest); that fund is available only for payment of claims for which limitation can be invoked, and the Court may stay proceedings relating to such claims.
Section 399. Limitation fund Section 399(1) Any person alleged to be liable and seeking to limit his liability under this Part may constitute a fund by depositing with the Court an amount at least equivalent to the limit provided for in section 391 or section 396 as appropriate, or by producing a guarantee acceptable by the Court, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund, and the fund so constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked. Section 399(2) A fund constituted by one of the persons mentioned in section 398(1) (a), (b) or (c) or his insurer, or by a person or his insurer in respect of section 398(2), shall be deemed to have been constituted by all persons mentioned in section 398(1) (a), (b) or (c), or all persons in respect of section 398(2), as the case may be. Section 399(3) Where a fund is constituted with the court in accordance with this section for the payment of claims arising out of any occurrence, the court may stay any proceedings relating to any claim arising out of that occurrence which are pending against the person by whom the fund has been constituted. - 400 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 400. Distribution of fund
Section 400 sets rules for distributing a fund among claimants, allows the court to exclude late claimants or direct payment of costs, permits the court to postpone distribution considering later claims, and gives subrogated payers the rights of the compensated claimant up to the amount paid.
Section 400. Distribution of fund Section 400(1) Subject to sections 391, 393 and 396, the fund shall be distributed among the claimants in proportion to their established claims against the fund. Section 400(2) The court may proceed in such manner as to the exclusion of any claimants who do not come in within a certain time and as to payment of costs, as the court deems just. Section 400(3) No lien or other right in respect of any ship or property shall affect the proportions in which any amount is distributed among several claimants. Section 400(4) All sums paid for or on account of any loss or damage in respect whereof the liability of owners is limited under the provisions of this Part and all costs incurred in relation thereto may be brought into account among part owners of the same ship in the same manner as money disbursed for the use thereof. Section 400(5) Where, before the fund is distributed, the person liable, or his insurer, has settled the claim, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Part. Section 400(6) In making any distribution in accordance with this section the court may, if it deems fit, postpone the distribution of such part of the amount to be distributed as it deems appropriate having regard to any claims, subrogated or otherwise, that may be established later. - 401 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 401. Bar to other actions
A person who has claimed against a constituted limitation fund may not pursue the same claim against any other assets of the person for whom the fund was constituted, but this bar applies only if the claimant sues in court and the fund is actually available and freely transferable.
Section 401. Bar to other actions Section 401(1) Where a limitation fund has been constituted in accordance with section 399, any person having made a claim against the fund shall be barred from exercising any right in respect of such claim against any other assets of a person by or on behalf of whom the fund has been constituted. Section 401(2)(a) where the occurrence took place, or, if it took place out of port, at the first port of call thereafter; Section 401(2)(b) of disembarkation in respect of claims for loss of life or personal injury; or Section 401(2)(c) of discharge in respect of damage to cargo, Section 401(3) Subsections (1) and (2) shall apply only if the claimant brings a claim before the court and the limitation fund is actually available and freely transferable in respect of that claim. - 402 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 402. Governing law
If a limitation fund is constituted in Kenya, the rules about its constitution, distribution, and related procedures are governed by Kenyan law.
Section 402. Governing law Section Where a limitation fund is constituted in Kenya, the rules relating to its constitution and distribution, and all rules of procedure in connection therewith, shall be governed by Kenyan law. - 403 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 403. Apportionment for liability
When two or more ships are at fault for damage or loss, liability must be apportioned in proportion to each ship's degree of fault; if degrees cannot be established it is apportioned equally; the rule applies to owners, persons responsible for navigation (including charterers where applicable), and preserves contractual and legal exemptions and limits.
Section 403. Apportionment for liability Section 403(1) Where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, to liability to make good the damage or loss shall be in proportion to the degree in which each ship was at fault. Section 403(2) Where, in any such case, having regard to all the circumstances, it is not possible to establish different degrees of fault, the liability shall be apportioned equally. Section 403(3) This section applies to persons other than the owners of ships who are responsible for the faults of the ships, as well as to the owners of ships and where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the ship in question, this section applies to the charterers or other persons for the time being so responsible instead of the owners. Section 403(4) Nothing in this section shall operate so as to render any ship liable for any loss or damage to which the fault of the ship has not contributed. Section 403(5) Nothing is this section shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law. Section 403(6)(a) “freight” includes passage money and hire; Section 403(6)(b) references to damage or loss caused by the fault of a ship include references to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages. - 404 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 404. Liability for injury or loss of life
Owners of ships are jointly and severally liable for loss of life or personal injury on board caused by the fault of that ship and any other ship.
Section 404. Liability for injury or loss of life Section 404(1) Where loss of life or personal injury is suffered by any person on board a ship owing to the fault of that ship and of any other ship, the liability of the owners of the ships shall be joint and several. Section 404(2) Nothing in this section shall be construed as depriving any person of any right of defence on which, apart from this section, he might have relied in an action brought against him by the person injured, or any person or persons entitled to sue in respect of such loss of life, or shall affect the right of any person to limit his liability in the manner provided by law. Section 404(3) Section 403(3) and (6)(b) applies also to this section. - 405 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 405. Contribution for injury or loss of life
Owners who have paid more than their share of damages for loss of life or personal injury on board a ship may recover the excess from other ship owners in proportion to their fault; persons entitled to such contribution have the same rights to recover as those entitled to sue for damages.
Section 405. Contribution for injury or loss of life Section 405(1) Where loss of life or personal injury is suffered by any person on board a ship owing to the fault of that ship and any other ship or ships, and a proportion of the damages is recovered against the owners of one of the ships which exceeds the proportion in which the ship was in fault, the owners thereof may recover by way of contribution the amount of the excess from the owners of the other ship or ships to the extent to which those ships were respectively at fault. Section 405(2) Nothing in this section authorises the recovery of any amount which could not, by reason of any statutory or contractual limitation of, or exemption; from, liability, or which could not for any other reason, have been recovered in the first instance as damages by the persons entitled to sue therefor. Section 405(3) In addition to any other remedy provided by law, persons entitled to any contribution recoverable under this section shall, for the purposes of recovering it, have the same rights and powers as the persons entitled to sue for damages in the first instance. Section 405(4) The provisions of section 403(3) applies to this section. - 406 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 406. Limitation of time
Proceedings to enforce contribution for any overpaid proportion of damages for loss of life or personal injury must be brought within one year from the date of payment, subject to the court's power to extend that period on conditions.
Section 406. Limitation of time Section 406(1)(a) in respect of damage or loss caused by the fault of that ship to another ship, its cargo or freight or any property on board it; or Section 406(1)(b) for damages for loss of life or personal injury caused by the fault of that ship to any person on board another ship. Section 406(2) The extent of fault is immaterial for purposes of this section. Section 406(3)(a) damage or loss was caused; or Section 406(3)(b) loss of life or injury was suffered. Section 406(4) Subject to subsections (5) and (6), no proceedings under any provisions of sections 403 to 405 to enforce any contribution in respect of any overpaid proportion of any damages for loss of life or personal injury shall be brought after the period of one year from the date of payment. Section 406(5) The court may, in accordance with the rules of court, extend the period allowed for bringing proceedings to such extent and on such conditions as it deems fit. Section 406(6)(a) jurisdiction of the court; or Section 406(6)(b) territorial sea of the country to which the plaintiffs ship belongs or in which the plaintiff resides or has his principal place of business, - 407 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 407. Scope of application of Part
This Part applies whenever any person referred to in section 385 seeks to limit liability before the court or to procure release of a ship or other property, or discharge security within Kenya.
Section 407. Scope of application of Part Section 407(1) Subject to subsection (3), this Part shall apply whenever any person referred to in section 385 seeks to limit his liability before the court or seeks to procure the release of a ship or other property, or the discharge of any security given within the jurisdiction of Kenya. Section 407(2) This Part shall apply in relation to Government ships as they apply in relation to other ships. Section 407(3)(a) of which the beneficial interest is vested in the Government; Section 407(3)(b) which are registered as Government ships; Section 407(3)(c) which are for the time being demised or sub-demised to or in the exclusive possession of the Government. Section 407(4) This Part shall not apply to any liability in respect of loss of life or personal injury caused to, or loss of or damage to, any property of a person who is on board the ship in question or employed in connection with that ship, or with the salvage operations in question, if he is so on board or employed under a contract of service governed by the law of Kenya. - 408 Verify source ↗
LIMITATION AND DIVISION OF LIABILITY FOR MARITIME CLAIMS - 408. Exclusion of liability
Section 408 excludes liability for loss or damage to property in specified cases (fire; undeclared valuables lost to theft/robbery) and extends that exclusion to the master, crew or servants, subject to exceptions; it applies to Government ships and defines "owner" to include part owners, charterers, managers and operators.
Section 408. Exclusion of liability Section 408(1)(a) where any property on board the ship is lost or damaged by reason of fire on board the ship; or Section 408(1)(b) where any gold, silver, watches, jewels or precious stones on board the ship are lost or damaged by reason of theft, robbery or other dishonest conduct and their nature and value were not, at the time of shipment, declared by their owner or shipper to the owner or master of the ship in the bill of lading or otherwise in writing. Section 408(2)(a) the master, member of the crew or servant; and Section 408(2)(b) in a case where the master or member of the crew is the servant of a person whose liability would not be excluded by that subsection apart from this paragraph, the person whose servant he is. Section 408(3) This section does not exclude the liability of any person for any loss or damage resulting from any such personal act or omission of his as is mentioned in section 389. Section 408(4) This section shall apply in relation to Government ships as it applies in relation to other ships. Section 408(5) In this section “owner”, in relation to a ship, includes any part owner and any charterer, manager or operator of the ship.
Part XVIII
ENFORCEMENT OFFICERS AND POWERS
- 409 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 409. Powers of enforcement officers
Section 409 names enforcement officers (Director-General; Registrar of Ships; Registrar of Seafarers; Chief Receiver of Wreck; Chief Surveyor of Ships), states that surveyors of ships may be appointed generally or for particular cases, lists matters surveyors may investigate including accidents, compliance, and condition of hull and machinery, and defines "surveyor of ships".
Section 409. Powers of enforcement officers Section 409(1)(a) Director-General; Section 409(1)(b) Registrar of Ships; Section 409(1)(c) Registrar of Seafarers; Section 409(1)(d) Chief Receiver of Wreck; and Section 409(1)(e) Chief Surveyor of Ships. Section 409(2) Surveyors of ships may be appointed either generally or for any particular case or purpose. Section 409(3)(a) on the nature and causes of any accident or damage which any ship has or is alleged to have sustained or caused; Section 409(3)(a)(i) on the nature and causes of any accident or damage which any ship has or is alleged to have sustained or caused; Section 409(3)(a)(ii) whether any requirements, restrictions or prohibitions imposed by or under this Act have been complied with or, as the case may be, contravened; Section 409(3)(a)(iii) whether the hull and machinery of a ship are sufficient and in good condition; Section 409(3)(b) for the purposes of sections 415, 416, 421 and 425. Section 409(4) In this Act, “surveyor of ships” means a surveyor appointed under subsection (2) or (3), and the reference to requirements, restrictions or prohibitions under this Act includes any such requirements, restrictions or prohibitions constituting the terms of any approval, licence, consent or exemption given in any document issued under this Act. - 410 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 410. Regulations on marine pollution
The Cabinet Secretary may make regulations to protect and preserve the marine environment from pollution by matter from ships.
Section 410. Regulations on marine pollution Section 410(1) The Cabinet Secretary may make regulations for the protection and preservation of the marine environment from pollution by matter from ships. Section 410(2)(a) the United Nations Convention on the Law of the Sea (UNCLOS), 1982; Section 410(2)(b) the International Convention for the Prevention of Pollution from Ships (MARPOL), 1973 as modified by the Protocol of 1978 relating thereto (as amended); Section 410(2)(c) the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (the Intervention Convention) as amended; Section 410(2)(d) the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other than Oil, 1973; Section 410(2)(e) the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990; Section 410(2)(f) the International Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, (LDC) 1972; Section 410(2)(g) the Protocol on Preparedness response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 2000 (HNS Protocol); Section 410(2)(h) the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (AFS) 2001; and Section 410(2)(i) the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004; Section 410(2)(j) any international convention or agreement not mentioned in paragraphs (a) to (h) above which relates to the prevention, reduction and control of pollution as well as liability and compensation for pollution damage of the sea or other waters by dumping of wastes and matter from ships. Section 410(3) In this section, reference to a convention, protocol or an agreement includes a convention, protocol or an agreement which provides for the modification of another convention, protocol or agreement. - 411 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 411. Production of ship’s documents
Officers (including Kenyan consular officers) have powers in relation to Kenyan ships to require production and inspection of log books and other documents, to require lists of persons on board, to muster the crew, and to require explanations; failure without reasonable excuse to produce documents is an offence punishable by a fine not exceeding two hundred and fifty thousand shillings or imprisonment for up to fifteen months or both.
Section 411. Production of ship’s documents Section 411(1) The powers conferred by this section are conferred in relation to Kenyan ships and are available to any of the officers, mentioned in section 409 including any Kenyan consular officer. Section 411(2) The powers conferred under this section shall also be available to any Kenyan consular officer whenever he has reason to suspect that this or any law for the time being in force relating to merchant seafarers or navigation is not being complied with. Section 411(3)(a) to require the owner, master, or any of the crew to produce any official log books or other documents relating to the crew or any member of the crew in their possession or control; Section 411(3)(b) to require the master to produce a list of all persons on board his ship, and take copies of or extracts from the official log books or other such documents; Section 411(3)(c) to muster the crew; and Section 411(3)(d) to require the master to appear and give any explanation concerning the ship or her crew or the official log books or documents produced or required to be produced. Section 411(4) Where any person, on being duly required by an officer under this section to produce a log book or any document, fails without reasonable excuse to produce the log book or document, he commits an offence and shall be liable, upon conviction, to a fine not exceeding two hundred and fifty thousand shillings or to imprisonment for a term not exceeding fifteen months or to both such fine and imprisonment. Section 411(5)(a) produce a log book or document, refuses to allow the log book or document to be inspected or copied; Section 411(5)(b) to muster the crew, impedes the muster; or Section 411(5)(c) to give any explanation, refuses or neglects to give the explanation or knowingly misleads or deceives the officer, - 412 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 412. Inspection of ships and equipment
Surveyors of ships may board and inspect ships, equipment, articles and required documents at reasonable times; these powers can be exercised outside Kenya for Kenyan ships and by proper officers; inspectors must not unnecessarily detain ships but may require docking for surveys when necessary; inspectors may enter premises to check provisions and water intended for Kenyan ships; obstructing inspectors or failing to comply with docking requirements is an offence punishable by a fine or imprisonment.
Section 412. Inspection of ships and equipment Section 412(1) For the purpose of seeing that the provisions of this Act and of regulations made under this Act or that the terms of any approval, licence, consent, direction or exemption given by virtue of such regulations are duly complied with, a surveyor of ships may, at all reasonable times, go on board a ship and inspect the ship and its equipment or any part thereof, any articles on board and any document carried in the ship in pursuance of this Act or regulations made under this Act. Section 412(2) The powers conferred by subsection (1) are, if the ship is a Kenyan ship, also exercisable outside Kenya and may be so exercised by a proper officer as well as the persons mentioned in that subsection. Section 412(3) A person exercising powers under this section shall not unnecessarily detain or delay a ship but may, if he considers it necessary in consequence of an accident or for any other reason, require a ship to be taken into dock for a survey of its hull or machinery. Section 412(4) Where any such person as is mentioned in subsection (1) has reasonable grounds for believing that there are on any premises, provisions or water intended for supply to a Kenyan ship which, if provided on the ship, would not be in accordance with regulations containing requirements as to provisions and water to be provided on ships, he may enter the premises and inspect the provisions or water for the purpose of ascertaining whether they would be in accordance with the regulations. Section 412(5) Where any person obstructs a person in the exercise of his powers under this section, or fails to comply with a requirement made under subsection (3), he commits an offence and shall be liable, upon conviction, to a fine not exceeding one hundred and fifty thousand shillings or to imprisonment for a term not exceeding nine months, or to both such fine and imprisonment. - 412A Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 412A. Penalties under Regulations
Regulations under sections 8, 360, 410 and 450 may set penalties of up to ten million shillings, or imprisonment up to ten years, or both, for contraventions on conviction.
Section 412A. Penalties under Regulations Section Regulations made under sections 8, 360, 410 and 450 may provide that any person contravening any of the provisions thereof is liable on conviction to a fine not exceeding ten million shillings, or to imprisonment for a term not exceeding ten years, or to both. [Act No. 12 of 2012 , Sch.] - 413 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 413. Powers of inspectors in relation to premises and ships
Inspectors appointed under section 409(3) have wide powers to enter premises and ships, examine and investigate, take samples, require attendance and assistance, seize items and ensure evidence is preserved, subject to limited protections and procedural rules.
Section 413. Powers of inspectors in relation to premises and ships Section 413(1)(a) any premises in Kenya; or Section 413(1)(b) any Kenyan ship wherever it may be and any other ship which is present in Kenya or in Kenyan waters, and are available to any inspector appointed under section 409(3), for the purpose of performing his functions. Section 413(2)(a) enter any premises; or Section 413(2)(a)(i) enter any premises; or Section 413(2)(a)(ii) board any ship, Section 413(2)(b) on entering any premises by virtue of paragraph (a), or on boarding a ship by virtue of that paragraph, take with him any other person authorised for the purpose by the Director-General, and any equipment or materials he requires; Section 413(2)(c) make such examination and investigation as he considers necessary; Section 413(2)(d) give a direction requiring that the premises or ship or any part of the premises or ship or any thing in the premises or ship or such a part shall be left undisturbed, whether generally or in particular respects, for so long as is reasonably necessary for the purposes of any examination or investigation under paragraph (c); Section 413(2)(e) take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (c); Section 413(2)(f) take samples of any articles or substances found in the premises or ship and of the atmosphere in or in the vicinity of the premises or ship; Section 413(2)(g) in the case of any article or substance which he finds in the premises or ship and which appears to him to have caused or to be likely to cause danger to health or safety, cause it to be dismantled or subjected to any process or test, but not so as to damage or destroy it unless that is necessary in the circumstances; Section 413(2)(h) to examine it and do to it anything which he has power to do under that paragraph; Section 413(2)(h)(i) to examine it and do to it anything which he has power to do under that paragraph; Section 413(2)(h)(ii) to ensure that it is not tampered with before his examination of it is completed; Section 413(2)(h)(iii) to ensure that it is available for use as evidence in any proceedings for an offence under this Act or any instrument made under it; Section 413(2)(i) attend at a place and time specified by the inspector; Section 413(2)(i)(i) attend at a place and time specified by the inspector; Section 413(2)(i)(ii) answer, in the absence of persons other than any persons whom the inspector may allow to be present and a person nominated to be present by the person on whom the requirement is imposed, such questions as the inspector thinks fit to ask; and Section 413(2)(i)(iii) sign a declaration of the truth of his answers; Section 413(2)(j) any books or documents which by virtue of any provision of this Act are required to be kept; and Section 413(2)(j)(i) any books or documents which by virtue of any provision of this Act are required to be kept; and Section 413(2)(j)(ii) any other books or documents which he considers it necessary for him to see for the purposes of any examination or investigation under paragraph (c); Section 413(2)(k) require any person to afford him such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as the inspector considers are necessary to enable him to exercise any of the powers conferred on him by this subsection. Section 413(3) Nothing in the preceding provisions of this section authorises a person to unnecessarily prevent a ship from proceeding on a voyage. Section 413(4) The Cabinet Secretary may, by regulations, provide for the procedure to be followed in connection with the taking of samples under subsection (2)(f) and subsection (7), and the way in which samples that have been so taken are to be dealt with. Section 413(5) Where an inspector proposes to exercise the power conferred by subsection (2)(g) in the case of an article or substance found in any premises or ship, he shall, if so requested by a person who at the time is present in, and has responsibilities in relation to the premises or ship, cause anything which is to be done by virtue of that power to be done in the presence of that person unless the inspector considers that its being done in that person’s presence would be prejudicial to the safety of that person. Section 413(6) Before exercising the power conferred by subsection (2)(g), an inspector shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under that power. Section 413(7) Where, under the power conferred by subsection (2)(h), an inspector takes possession of any article or substance found in any premises or ship, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power, and before taking possession of any such substance under that power an inspector shall, if it is practicable for him to do so, take a sample of the substance and give to a responsible person at the premises or on board the ship a portion of the sample marked in a manner sufficient to identify it. Section 413(8) No answer given by a person pursuant to a requirement imposed under subsection (2)(i) shall be admissible in evidence against that person or the husband or wife of that person in any proceedings, except proceedings pursuant to section 411(2), in respect of a statement in or a declaration relating to the answer, and a person nominated as mentioned in subsection (2)(i) shall be entitled, on the occasion on which the questions there mentioned are asked, to make representations to the inspector on behalf of the person who nominated him. - 414 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 414. Offences
Section 414 creates offences for obstructing inspectors, failing to comply with requirements, preventing compliance by others, and making false statements in compliance-related declarations; it prescribes penalties (a fine not exceeding one hundred and twenty thousand shillings, or imprisonment up to one year, or both), preserves legal professional privilege against compelled production under section 411, entitles persons who comply with certain requirements under section 413(2)(i),(j),(k) to recover prescribed expenses, and provides that payments under subsection (3) shall be made from money provided by Treasury.
Section 414. Offences Section 414(1)(a) intentionally obstructs an inspector in the exercise of any power available to him under section 408; Section 414(1)(b) without reasonable excuse, does not comply with a requirement imposed under section 411 or prevents another person from complying with such a requirement; Section 414(1)(c) without prejudice to the generality of paragraph (b), makes a statement or signs a declaration which he knows is false, or recklessly makes a statement or signs a declaration which is false, in purported compliance with a requirement made pursuant to section 413(2)(i), commits an offence and shall be liable, upon conviction, to a fine not exceeding one hundred and twenty thousand shillings, or imprisonment for a term not exceeding one year, or both. Section 414(2) Nothing in section 411 shall be taken to compel the production by any person of a document which he would, on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court. Section 414(3) A person who complies with a requirement imposed on him in pursuance of section 413(2)(i), (j) and (k) shall be entitled to recover, from the person who imposed the requirement, such sums in respect of the expenses incurred in complying with the requirement as may be prescribed. Section 414(4) Any payments under subsection (3) shall be made out of money provided by Treasury. - 415 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 415. Improvement notices
Inspectors must state their opinion, specify which provisions are contravened and give reasons, and must require the person served to remedy the contravention within a period specified in the notice.
Section 415. Improvement notices Section 415(1)(a) is contravening one or more of the relevant statutory provisions; or Section 415(1)(b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, Section 415(2)(a) state that the inspector is of the said opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and Section 415(2)(b) require the person on whom the notice is served to remedy the contravention in question or, as the case may be, the matters occasioning it within such period as may be specified in the notice. Section 415(3) The period specified in subsection (2)(b) shall not expire before the end of the period within which a notice can be given under section 416 requiring questions relating to the improvement notice to be referred to arbitration. Section 415(4)(a) appropriate provisions of Parts VII to XII and Part XX of this Act; and Section 415(4)(b) provisions of any instrument of a legislative character having effect under any of those provisions. - 416 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 416. Prohibition notices
An inspector appointed under section 409(3) may serve a "prohibition notice" on a person if relevant activities aboard a ship are or will be likely to involve the risk of serious personal injury; such a notice can require that the named activities not be carried on by that person or that the ship not go to sea.
Section 416. Prohibition notices Section 416(1) Where, as regards any relevant activities which are being or are likely to be carried on board any ship by or under the control of any person, an inspector appointed under section 409(3) is of the opinion that, as so carried on or as likely to be carried on, the activities involve or, as the case may be, will involve the risk of serious personal injury to any person, whether on board the ‘ship or not, the inspector may serve on the first-mentioned person a notice under this section, referred to in the following sections of this Part as a “prohibition notice”. Section 416(2) In subsection (1), “relevant activities” means activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are carried on as mentioned in that subsection, apply. Section 416(3)(a) state that the inspector is of the said opinion; Section 416(3)(b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk; Section 416(3)(c) where in his opinion any of those matters involve or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and Section 416(3)(d) the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served; or Section 416(3)(d)(i) the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served; or Section 416(3)(d)(ii) the ship shall not go to sea, Section 416(4)(a) at the end of a period specified in the notice; or Section 416(4)(b) if the direction is given in accordance with subsection (3)(d)(ii) or the notice so declares, immediately. - 417 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 417. Directions on remedial measures
Improvement or prohibition notices may include directions to remedy contraventions (including offering the served person a choice of remedies), must not require measures more onerous than necessary, and an inspector may withdraw the notice before the specified period ends or extend that period when arbitration is not pending.
Section 417. Directions on remedial measures Section 417(1) An improvement notice or a prohibition notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates, and any such directions may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter. Section 417(2) An improvement notice or a prohibition notice shall not direct any measures to be taken to remedy the contravention of any of the relevant statutory provisions that are more onerous than those necessary to secure compliance with that provision. Section 417(3)(a) the notice may be withdrawn by an inspector at any time before the end of the period specified in it in pursuance of section 415(2)(b) or, as the case may be, section 416; and Section 417(3)(b) the period so specified may be extended or further extended by an inspector at any time when a reference to arbitration in respect of the notice is not pending under section 418. - 418 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 418. References of notices to arbitration
An arbitrator appointed under this section has powers similar to those of an inspector under section 413(2); the section also lists qualifications for an arbitrator.
Section 418. References of notices to arbitration Section 418(1)(a) as to whether any of the reasons or matters specified in an improvement notice or a prohibition notice in pursuance of section 415(2)(a), or section 416(3)(b) or (c) in connection with any opinion formed by the inspector constituted a valid basis for that opinion; or Section 418(1)(b) as to whether directions included in the notice in pursuance of section 417(1) were reasonable, Section 418(2)(a) in the case of an improvement notice, the giving of the notice shall have the effect of suspending the operation of the improvement notice until the decision of the arbitrator is published to the parties or the reference is abandoned by that person; Section 418(2)(b) in the case of a prohibition notice, the giving of the notice shall have the effect of so suspending the operation of the prohibition notice if, but only if, on the application of that person the arbitrator so directs, and then only from the giving of the direction. Section 418(3)(a) the reason or matter did not constitute a valid basis for the inspector’s opinion; or Section 418(3)(b) the direction was unreasonable, Section 418(4)(a) holds an unrestricted certificate of competency as a master mariner or as a chief engineer officer, or a person holding a certificate equivalent to any such certificate; Section 418(4)(b) is a naval architect; Section 418(4)(c) has at least 10 years standing as an advocate at law; or Section 418(4)(d) has special experience of shipping matters, or of activities carried on in ports. Section 418(5) In the performance of his functions under this section, an arbitrator shall have similar powers to the powers conferred on an inspector under section 413(2). - 419 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 419. Compensation for invalid prohibition notice
If an arbitrator finds a direction in a prohibition notice unreasonable, the arbitrator may award compensation to the person served; any compensation awarded must be paid from money provided by the Treasury. The arbitrator’s power to award is subject to subsection (3).
Section 419. Compensation for invalid prohibition notice Section 419(1)(a) the arbitrator decides that any reason or matter did not constitute a valid basis for the inspector’s opinion; and Section 419(1)(b) it appears to him that there were no reasonable grounds for the inspector to form that opinion, Section 419(2) Where on any such reference the arbitrator decides that any direction included in the notice was unreasonable, the arbitrator may, subject to subsection (3), award the person on whom the notice was served such compensation in respect of any loss suffered by him in consequence of the direction as the arbitrator deems fit. Section 419(3)(a) it appears to him that the direction given in accordance with section 416(3)(d) contained any such requirement as is mentioned in subparagraph (ii) of that provision; or Section 419(3)(b) the inspector was of the opinion that there would be such a risk of injury as is referred to in the notice if the ship went to sea; and Section 419(3)(b)(i) the inspector was of the opinion that there would be such a risk of injury as is referred to in the notice if the ship went to sea; and Section 419(3)(b)(ii) the effect of the direction given in pursuance of section 416(3)(d) was to prohibit the departure of the ship unless the matters, or, as the case may be, the matters and contraventions referred to in the direction were remedied. Section 419(4) Any compensation awarded under this section shall paid by money provided by the Treasury. - 420 Verify source ↗
ENFORCEMENT OFFICERS AND POWERS - 420. Offences
Contravening an improvement or prohibition notice is an offence carrying fines up to 250,000 shillings and/or imprisonment (up to 15 months for improvement notice contraventions; up to 2 years or other alternatives for prohibition notice contraventions); proving due diligence is a defence.
Section 420. Offences Section 420(1) Any person who contravenes any requirement imposed by an improvement notice commits an offence and shall be liable, upon conviction, to a fine not exceeding two hundred and fifty thousand shillings or to imprisonment for a term not exceeding fifteen months, or to both such fine and imprisonment. Section 420(2) Any person who contravenes any prohibition imposed by a prohibition notice commits an offence and shall be liable, upon conviction, to a fine not exceeding two hundred and fifty thousand shillings, or to imprisonment for a term not exceeding two years, or both or to imprisonment for a term not exceeding fifteen months, or to both such fine and imprisonment. Section 420(3) It shall be a defence for a person charged with an offence under this section to prove that he exercised all due diligence to avoid a contravention of the requirement or prohibition in question. Section 420(4) In this section, any reference to an improvement notice or a prohibition notice includes a reference to any such notice as modified under section 418.
Part XX
LEGAL PROCEEDINGS
- 427 Verify source ↗
LEGAL PROCEEDINGS - 427. Offences by an officer of body corporate
Officers (e.g., Managing Director, Manager, Director or similar) can be held criminally liable alongside the body corporate if an offence by the company is proved to have been committed with their consent, connivance or neglect; documents for prosecuting a foreign company as owner of a ship may be served on the ship's master and authorised servers have the right to go on board; “foreign company” is defined by reference to the Companies Act (Cap. 486).
Section 427. Offences by an officer of body corporate Section 427(1) Where a body corporate commits an offence under this Act or any instrument made under it, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a Managing Director, Manager, Director or other similar officer of the body corporate, or any person who was purporting to act in such a capacity, he as well as the body corporate commits an offence and shall be liable to be prosecuted and punished accordingly. Section 427(2) Any document required or authorised, by virtue of any statutory provision, to be served on a foreign company for the purposes of the institution of, or otherwise in connection with, proceedings for an offence under this Act alleged to have been committed by the company as the owner of a ship, shall be treated as duly served on that company if the document is served on the master of the ship, and any person authorised to serve any document for the purposes of the institution of, or otherwise in connection with proceedings for an offence under this Act (whether or not in pursuance of the foregoing provisions of this subsection) shall, for that purpose, have the right to go on board the ship in question. Section 427(3) In this section, “foreign company” has the same meaning as in the Companies Act (Cap. 486). - 428 Verify source ↗
LEGAL PROCEEDINGS - 428. Conduct of prosecutions
An officer appointed under the Act and specially authorized in writing by the Director of Public Prosecutions may conduct prosecutions for offences under the Act.
Section 428. Conduct of prosecutions Section Prosecutions in respect of offences under this Act may, without prejudice to the provisions of any other law relating to prosecutions, be conducted by any officer appointed under this Act and specially authorized in writing in that behalf by the Director of Public Prosecutions. [Act No. 18 of 2014 , Sch.] - 429 Verify source ↗
LEGAL PROCEEDINGS - 429. Penalties
Persons who commit offences without a specific penalty are liable on conviction to a fine up to ten million shillings, or imprisonment up to ten years, or both; continuing offences additionally attract a fine up to fifty thousand shillings for each day (or part) the offence continues after conviction.
Section 429. Penalties Section 429(1) A person who commits an offence under this Act, for which no specific penalty is provided, shall be liable, upon conviction, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment. Section 429(2) Where an offence under this Act is a continuing one, and no penalty is provided in respect of the continuance thereof elsewhere than in this section, every person who commits that offence, in addition to any other liability, shall be liable, upon conviction, to a fine not exceeding fifty thousand shillings for every day or part thereof during which the offence continues after conviction. - 430 Verify source ↗
LEGAL PROCEEDINGS - 430. Jurisdiction for offences
For jurisdictional purposes, an offence or complaint under this Act is treated as having occurred in any place in Kenya where the offender or the person complained against may be for the time being.
Section 430. Jurisdiction for offences Section 430(1) For the purpose of conferring jurisdiction, any offence under this Act shall be deemed to have been committed in any place in Kenya where the offender may be for the time being. Section 430(2) For the same purpose, any matter of complaint under this Act shall be deemed to have arisen in any place in Kenya where the person complained against may be for the time being. Section 430(3) The jurisdiction under subsections (1) and (2) shall be in addition to, and not in derogation of, any jurisdiction or power of the court under any other law. - 431 Verify source ↗
LEGAL PROCEEDINGS - 431. Jurisdiction over ships lying off coast
Where the court's area of jurisdiction is on or projects into the coast or adjacent navigable waters, the court has jurisdiction over offences under this Act committed on vessels on or off that coast or in/near those waters, and over all persons on board or belonging to those vessels.
Section 431. Jurisdiction over ships lying off coast Section Where the area within which the court has jurisdiction is situated on the coast of the sea or abuts on or projects into any bay, channel, or other navigable water, the court shall have jurisdiction as respects offences under this Act over any vessel being on, or lying or passing off, that coast or being in or near that bay, channel, or navigable water and over all persons on board that vessel or for the time being belonging to it. - 432 Verify source ↗
LEGAL PROCEEDINGS - 432. Offences onboard ships
Offences onboard any Kenyan ship on the high seas.
Section 432. Offences onboard ships Section on board any Kenyan ship on the high seas; - 433 Verify source ↗
LEGAL PROCEEDINGS - 433. Offences by Kenyan seafarers
Section 433 makes certain acts by Kenyan seafarers offences, treats some acts as if done within the court's jurisdiction for trial, applies subsection (1) to persons employed within three months before the act, and extends application to omissions.
Section 433. Offences by Kenyan seafarers Section 433(1)(a) be an offence under that law; and Section 433(1)(b) be treated for the purposes of jurisdiction and trial, as if it had been done within the jurisdiction of the court. Section 433(2) Subsection (1) also applies in relation to a person who had been so employed within the period of three months expiring with the time when the act was done. Section 433(3) Subsections (1) and (2) apply to omissions as they apply to acts. - 434 Verify source ↗
LEGAL PROCEEDINGS - 434. Return of offenders
Consular officers may order Kenyan ships to carry offenders and witnesses to Kenya, with limits and conditions; masters must hand offenders to police on arrival; the Treasury must pay certain expenses.
Section 434. Return of offenders Section 434(1)(a) that any offence against property or persons has been committed at any place, ashore or afloat, outside Kenya by any master or seafarer who at the time when the offence was committed, or within three months before that time, was employed in a Kenyan ship; or Section 434(1)(b) that any offence on the high seas has been committed by any master or seafarer belonging to any Kenyan ship. Section 434(2)(a) to inquire into the case upon oath; and Section 434(2)(b) if the case so requires, to take any steps in his power for the purpose of placing the offender under the necessary restraint and sending him by a Kenyan ship as soon as practicable in safe custody to Kenya for proceedings to be taken against him. Section 434(3) The consular officer may, subject to subsections (4) and (5), order the master of any Kenyan ship bound for Kenya to receive and carry an offender and the witnesses to Kenya, and the officer shall endorse upon the agreement of the ship such particulars with respect to them as the Director-General requires. Section 434(4) A consular officer shall not exercise the power conferred by subsection (3) unless no more convenient means of transport is available or it is available only at disproportionate expense. Section 434(5) No master of a ship may be required under subsection (3) to receive more than one offender for every one hundred tons of his ship’s gross tonnage, or more than one witness for every fifty tons of his ship’s gross tonnage. Section 434(6) The master of any ship to whose charge an offender has been committed under subsection (3) shall, on his ship’s arrival in Kenya, give the offender into the custody of a police officer. Section 434(7)(a) fails to do so; or Section 434(7)(b) in the case of an offender, fails to deliver him as required by subsection (6), Section 434(8) The expense of imprisoning any such offender and of carrying him and witnesses to Kenya otherwise than in the ship to which they respectively belong shall be paid out of money provided by the Treasury. Section 434(9) References in this section to carrying a person in a ship include affording him subsistence during the voyage. - 435 Verify source ↗
LEGAL PROCEEDINGS - 435. Enforcing detention of ship
If a detained ship proceeds to sea before being released, the master commits an offence punishable by a fine not exceeding one million shillings or imprisonment for up to five years or both; owners or persons who send such a ship to sea and are party to the offence are also liable. The section sets out liabilities for taking officers to sea, release conditions including payment of ten million shillings or provision of security (including security not less than one million shillings acceptable to the Director-General), powers for customs and port officers to refuse clearance or detain until documents are produced, and a seven-day procedural period and related release conditions.
Section 435. Enforcing detention of ship Section 435(1)(a) the Director-General; Section 435(1)(b) any surveyor of ships authorised by the Director-General for the purpose; Section 435(1)(c) any Kenya consular officer; and Section 435(1)(d) any person authorised in writing by the Director-General. Section 435(2) Where a ship which has been detained, or in respect of which notice of detention or an order for detention has been served on the master, proceeds to sea before it is released by a competent authority, the master of the ship commits an offence and shall be liable, upon conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment. Section 435(3) The owner of a ship, and any person who sends to sea a ship as respects which an offence is committed under subsection (2), if party or privy to the offence, also commits an offence under that subsection and shall be liable accordingly. Section 435(4)(a) be liable to pay all expenses of, and incidental to, the officer being so taken to sea; and Section 435(4)(b) commit an offence. Section 435(5) A person who commits an offence under subsection (4), shall be liable, upon conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment. Section 435(6) Where under this Act a ship is to be detained, an officer of customs and excise shall, and where under this Act a ship may be detained, an officer of the port authority customs and excise may, refuse to clear the ship outwards. Section 435(7) When any provision of this Act provides that a ship may be detained until any document is produced to the proper officer of the port authority or the officer able to grant a clearance, unless the context otherwise requires, that officer may detain the ship until the document so required is produced to him. Section 435(8) Any reference in this section to proceeding to sea includes a reference to going on a voyage or excursion that does not involve going to sea, and references to sending or taking to sea shall be construed accordingly. Section 435(9)(a) no proceedings for the offence in question are instituted within seven days beginning with the day on which the ship is detained; Section 435(9)(b) such proceedings, having been instituted through exercise of the power conferred by subsection (1) within that period, are concluded without the master or owner being convicted; Section 435(9)(c) the sum of ten million shillings is paid to the Authority by way of security; or Section 435(9)(c)(i) the sum of ten million shillings is paid to the Authority by way of security; or Section 435(9)(c)(ii) security which, in the opinion of the Director-General, is satisfactory and is for an amount not less than one million shillings is given to the Authority by or on behalf of the master or owner; or Section 435(9)(d) where the master or owner is convicted of the offence, any costs or expenses ordered to be paid by him, and any fine imposed on him, have been paid; or Section 435(9)(e) the release is ordered by a competent court, and any bond or other financial security ordered by such a court or tribunal is posted. Section 435(10)(a) if no proceedings for the offence in question are instituted within seven days beginning with the day on which the sum is paid; or Section 435(10)(b) if such proceedings, having been instituted within that period, are concluded without the master or owner being convicted. Section 435(11)(a) first in payment of any costs or expenses ordered by the court to be paid by the master or owner; and Section 435(11)(b) next in payment of any fine imposed by the court, - 436 Verify source ↗
LEGAL PROCEEDINGS - 436. Levy of distress on ship
Courts may order unpaid seafarers’ wages or other sums to be levied by distress; courts have power to levy unpaid fines or costs by distress or arrest and sale of the ship; courts may direct a fine (or part) to be paid to a person who incurred expenses to repair damage caused by an offence.
Section 436. Levy of distress on ship Section 436(1) Where the court makes an order directing payment to be made of any seafarer’s wages, fines or other sums of money, then, if the person directed to pay is the master or owner of the ship and the money directed to be paid is not paid in accordance with the order, the court which made the order may direct the amount remaining unpaid to be levied by distress. Section 436(2) Where a fine imposed by a court in proceedings against the owner or master of a ship for an offence under this Act is not paid, or any costs or expenses ordered to be paid by him are not paid at the time ordered by the court, the court shall, in addition to any other powers for enforcing payment, have power to direct the amount remaining unpaid to be levied by distress or arrest and sale of the ship, her tackle, furniture and apparel. Section 436(3) Where a person is convicted of an offence under this Act and the court imposes a fine in respect of the offence, then if it appears to the court that any person has incurred, or will incur, expenses in making good any damage which is attributable to the offence, the court may order the whole or part of the fine to be paid to that person for or towards defraying those expenses. - 437 Verify source ↗
LEGAL PROCEEDINGS - 437. Admissibility of depositions by persons abroad
If a person whose evidence is required in civil proceedings cannot be found in Kenya, a deposition they previously made abroad on the same subject matter is admissible in those proceedings, subject to subsection (2).
Section 437. Admissibility of depositions by persons abroad Section 437(1) Where the evidence of any person is required in the course of any legal civil proceedings before a judge or magistrate in relation to the subject matter of the proceedings, and it is proved that that person cannot be found in Kenya, any deposition that he may have previously made at a place outside Kenya in relation to the same subject matter shall, subject to subsection (2), be admissible in evidence in those proceedings. Section 437(2)(a) have been taken on oath; Section 437(2)(b) have been taken before a judge or magistrate or a Kenya consular officer in any other place; and Section 437(2)(c) be authenticated by the signature of the justice, magistrate or officer taking it. Section 437(3) No proof may be given of the signature or official character of the person appearing to have signed any such deposition. Section 437(4) This section also applies to proceedings before any person authorised by law or consent of the parties to receive evidence. Section 437(5) Nothing in this section affects the admissibility in evidence of depositions under any other law or the practice of court. - 438 Verify source ↗
LEGAL PROCEEDINGS - 438. Compounding of offences
The Director-General may compound certain offences, order payment up to the fine amount or condemn forfeited items; the Director-General must not exercise these powers unless the person admits the offence in a prescribed form and requests the Director-General to deal with it; orders must be in writing, attach the person's request, and specify the offence and penalty.
Section 438. Compounding of offences Section 438(1) The Director-General may, where he is satisfied that any person has committed an offence under this Act in respect of which a fine is provided or in respect of which anything is liable to forfeiture, compound the offence and may 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 the Director-General may deem fit; and the Director-General may order anything liable to forfeiture in connection with the offence to be condemned. Section 438(2) The Director-General shall not exercise his powers under subsection (1) unless the person admits in a prescribed form that he or she has committed the offence and requests the Director-General to deal with such offence under this section. Section 438(3)(a) the order shall be put in writing and shall have attached to it the request of the person to the Director-General to deal with the matter; Section 438(3)(b) the order shall specify the offence which the person committed and the penalty imposed by the Director-General. - 439 Verify source ↗
LEGAL PROCEEDINGS - 439. Admissibility and inspection of certain documents
Lists categories of documents that are admissible and inspectable as evidence, and states that a certificate issued under regulations made pursuant to section 170 is admissible in evidence.
Section 439. Admissibility and inspection of certain documents Section 439(1)(a) documents purporting to be submissions to or decisions by the Registrar of Seafarers or proper officers under section 141; Section 439(1)(b) the official log book of any ship kept under section 198 and, without prejudice to section 440(2), any document purporting to be a copy of an entry therein and to be certified as a true copy by the master of the ship; Section 439(1)(c) crew agreements, lists of crews made under section 119 and notices given under Part V of additions to or changes in crew agreements and lists of crews; Section 439(1)(d) returns or reports under section 368; and Section 439(1)(e) documents transmitted to the Director-General under section 447. Section 439(2) A certificate issued under regulations made pursuant to section 170 shall be admissible in evidence. - 440 Verify source ↗
LEGAL PROCEEDINGS - 440. Admissibility of documents generally
Documents made admissible by this section are admissible in court; copies or extracts are also admissible if proved or certified; persons may obtain certified copies on payment of a reasonable fee set by the Director-General; officers who knowingly certify false copies commit an offence punishable by a fine or imprisonment.
Section 440. Admissibility of documents generally Section 440(1)(a) be admissible in evidence in any court or before any person having by law or consent of parties authority to receive evidence; and Section 440(1)(b) subject to all just exceptions, be evidence of the matters stated in the document. Section 440(2) A copy of, or extract from, any document so made admissible in evidence shall, subject to subsection (3), also be admissible in evidence and evidence of the matters stated in the document. Section 440(3)(a) it is proved to be an examined copy or extract; or Section 440(3)(b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original document was entrusted, Section 440(4) A person shall, on payment of such reasonable price as the Director-General may determine, be entitled to have a certified copy of any declaration or document a copy of which is made evidence by this Act. Section 440(5) Where any officer having duties of certification under subsection (3), in relation to any document, intentionally certifies any document as being a true copy or extract knowing that the copy or extract is not a true copy or extract, he commits an offence and shall be liable, upon conviction, to a fine not exceeding fifty thousand shillings, or imprisonment for a term not exceeding six months, or both. - 441 Verify source ↗
LEGAL PROCEEDINGS - 441. Admissibility of copies of documents
Copies or reproductions may be supplied for public inspection in place of originals, but the original must be made available if the copy is illegible; and subsection (3) treats a copy taken from a reproduction as a copy for the purposes of this section and section 440(2).
Section 441. Admissibility of copies of documents Section 441(1)(a) there may be supplied for public inspection a copy or other reproduction of the document instead of the original; but Section 441(1)(b) the original shall nevertheless be made available for public inspection if the copy or other reproduction is illegible. Section 441(2)(a) any law providing for that document to be admissible in evidence or open to public inspection; and Section 441(2)(b) in the case of a document falling within subsection (1), that subsection, Section 441(3) For the purposes of this section and of section 440(2) in its application to documents in the custody of the Director-General, a copy is to be taken to be the copy of a document notwithstanding that it is taken from a copy or other reproduction of the original. - 442 Verify source ↗
LEGAL PROCEEDINGS - 442. Proof of exceptions, etc
A defendant may prove exceptions.
Section 442. Proof of exceptions, etc Section 442(1)(a) it may be proved by the defendant; but Section 442(1)(b) need not be specified or negatived in any information or complaint, Section 442(2) This section applies in relation to an offence whether or not the exception, exemption, excuse or qualification is contained in the section creating the offence. - 443 Verify source ↗
LEGAL PROCEEDINGS - 443. Service of documents
Sets out methods for serving documents (delivery, leaving at address, posting), special rules for service on masters, managing owners, agents and ships, service on corporations and partnerships, notices to inspectors, and what counts as a proper address.
Section 443. Service of documents Section 443(1)(a) delivering it to him; Section 443(1)(b) leaving it at his proper address; or Section 443(1)(c) sending it by post to him at his proper address. Section 443(2)(a) where there is a master, by leaving it for him on board the ship with the person appearing to be in command or charge of the ship; and Section 443(2)(b) the managing owner of the ship; Section 443(2)(b)(i) the managing owner of the ship; Section 443(2)(b)(ii) if there is no managing owner, on any agent of the owner; or Section 443(2)(b)(iii) where no such agent is known or can be found, by leaving a copy of the document fixed to the mast of the ship. Section 443(3)(a) in the case of a body corporate, be served on the chief executive or secretary of that body; or Section 443(3)(b) in the case of a partnership, be served on a partner or a person having the control or management of the partnership business. Section 443(4) Any notice authorised by section 415 or 416 to be given to an inspector may be given by delivering it to him or by leaving it at, or sending it by post to, his office. Section 443(5)(a) in the case of a body corporate or its Chief Executive or Secretary, it shall be the address of the registered or principal office of that body; or Section 443(5)(b) in the case of a partnership or a person having the control or management of the partnership business, it shall be the principal office of the partnership, Section 443(6) Where the person to be served with any notice has, whether in pursuance of registration regulations or otherwise, specified an address in Kenya other than his proper address within the meaning of subsection (5), as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section as his proper address.
Part XXI
MISCELLANEOUS
- 444 Verify source ↗
MISCELLANEOUS - 444. Protection from liability
The Government, public officers and persons authorised under the Act are protected from legal action for acts or omissions done in good faith while exercising powers, authorities or duties under the Act.
Section 444. Protection from liability Section No action shall lie against the Government or any public officer or other person appointed or authorised to perform any function under this Act in respect of anything done or omitted to be done by him in good faith in the exercise or performance of any power, authority or duty conferred or imposed on him under this Act. - 445 Verify source ↗
MISCELLANEOUS - 445. General power to dispense
The Director-General may, subject to any conditions he imposes and if satisfied of the matters in subsection (2), exempt any ship from requirements of this Act or dispense with observing them.
Section 445. General power to dispense Section 445(1) The Director-General may, and upon such conditions, if any, as the Director-General deems fit to impose, exempt any ship from any specified requirement of, or prescribed under, this Act, or dispense with the observance of any such requirement in the case of any ship, if he is satisfied, as respects that requirement, of the matters specified in subsection (2). Section 445(2)(a) the requirement has been substantially complied with in the case of that ship or that compliance with it is unnecessary in the circumstances; and Section 445(2)(b) the action taken or provision made as respects the subject-matter of the requirement in the case of the ship is as effective as, or more effective than, actual compliance with the requirement. - 446 Verify source ↗
MISCELLANEOUS - 446. Payment to assessors
Remuneration shall be paid to any assessor appointed under this Act out of moneys provided by the Authority.
Section 446. Payment to assessors Section There shall be paid to any assessor appointed under this Act such remuneration out of moneys provided by the Authority. - 447 Verify source ↗
MISCELLANEOUS - 447. Returns
All consular officers of Kenya must make and send reports to the Director-General about any matter relating to Kenyan seafarers.
Section 447. Returns Section All consular officers of Kenya shall make and send to the Director-General such reports on any matter relating to Kenyan seafarers as the Director-General may require. - 448 Verify source ↗
MISCELLANEOUS - 448. Forms
Director-General may prepare, approve and alter official forms; must mark and publish notice and make them available; non‑compliant documents may be inadmissible and false forms are an offence punishable by fine or imprisonment.
Section 448. Forms Section 448(1) The Director-General may prepare and approve forms for any book, instrument or paper required under this Act and may alter such forms as he deems fit. Section 448(2) The Director-General shall cause every such form to be marked with the distinguishing mark of the Authority and, before finally issuing any form or making any alteration in a form, shall cause public notice thereof to be given in such manner as he deems fit in order to avoid any inconvenience. Section 448(3) The Director-General shall cause such forms to be available from the Authority. Section 448(4) Every such book, instrument or paper shall be made in the form, if any, approved by the Director-General, or as near as circumstances permit, and unless so made shall not be admissible in evidence in any civil proceedings on the part of the owner or master of any ship. Section 448(5) Every such book, instrument or paper if made in a form purporting to be the proper form and to be marked in accordance with subsection (2), shall be deemed to be in the form required by this Act, unless the contrary is proved. Section 448(6) The foregoing provisions do not apply where special provisions is made by this Act. Section 448(7) Where any person prints, sells or uses any document purporting to be a form approved by the Director-General knowing that the document is not the form approved for the time being or that the document has not been prepared or issued by the Director-General, that person commits an offence and shall be liable, upon conviction, to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding four months or to both such fine and imprisonment. - 449 Verify source ↗
MISCELLANEOUS - 449. Fees and fines
All fees payable under this Act shall be paid into the Authority.
Section 449. Fees and fines Section 449(1)(a) the issue or recording in pursuance of this Act of any certificate, licence or other document; or Section 449(1)(b) the doing of any thing in pursuance of this Act. Section 449(2) In the case of fees for the measurement of a ship’s tonnage, the fees may be prescribed as maximum fees. Section 449(3) All fees payable under this Act shall be paid into the Authority. - 450 Verify source ↗
MISCELLANEOUS - 450. Regulations
Regulations may be made for the listed safety, security, environmental, welfare and crew-composition purposes and may have specified scope and incidental transitional provisions.
Section 450. Regulations Section 450(1)(a) securing the safety and security of ships registered in Kenya and persons on them and for protecting the health of persons on Kenyan ships; Section 450(1)(b) giving effect to any provisions of an international agreement so far as the agreement relates to the safety and security of other ships or persons on them, or to the protection of the health of persons on other ships; Section 450(1)(c) securing the safety and security of other ships and persons on them while they are within a port or place in Kenya; Section 450(1)(d) the protection and preservation of the marine environment; Section 450(1)(e) the safety and security of ships not covered by the provisions of this Act; Section 450(1)(f) the welfare of the seafarers; Section 450(1)(g) the determining the composition of crew of Kenyan ships and foreign ships operating in Kenyan waters. Section 450(2) The power conferred by subsection (1) to make provision for giving effect to an agreement includes power to provide for the provision to come into force although the agreement has not come into force. Section 450(3)(a) make different provision for different circumstances and, in particular, make provision for an individual case; Section 450(3)(b) be made so as to apply only in such circumstances as are prescribed by the regulations; Section 450(3)(c) be made so us to extend outside Kenya; and Section 450(3)(d) contain such incidental and transitional provisions as the Cabinet Secretary considers appropriate. - 451 Verify source ↗
MISCELLANEOUS - 451. Application of Act to non-Kenyan ships
Section 451 sets out how the Act applies to non-Kenyan ships (extending subsection (1)(a) to specified non-Kenyan ships and persons, and subsection (1)(b) in specified circumstances), permits regulations to include transitional, supplementary and consequential provisions, and defines "non-Kenyan ships" as ships not registered in Kenya.
Section 451. Application of Act to non-Kenyan ships Section 451(1)(a) shall extend to non-Kenya ships of that description and to masters and seafarers employed in them; or Section 451(1)(b) shall so extend in such circumstances as may be so specified, with such modifications, if any, as may be so specified. Section 451(2) Regulations under this section may contain such transitional, supplementary and consequential provisions as appear to the Cabinet Secretary to be expedient. Section 451(3) In this section, “non-Kenyan ships” means ships that are not registered in Kenya. - 452 Verify source ↗
MISCELLANEOUS - 452. International conventions
The Cabinet Secretary may, from time to time by notice in the Gazette, publish international conventions, treaties or agreements relating to ships and shipping (including amendments, replacements and instruments that apply to or cease to apply to Kenya) and the reservations entered by Kenya.
Section 452. International conventions Section 452(1) The Cabinet Secretary may, from time to time by notice in the Gazette , publish the international conventions, bi-lateral treaties or regional agreements relating to ships and shipping, including amendments thereto and replacements thereof, and other international instruments which apply to Kenya, the reservations, if any, entered thereon by Kenya, as well as those international conventions, including amendments thereto and replacements thereof and other international instruments which cease to apply to Kenya. Section 452(2)(a) all the instruments referred to in subsection (1) that have application in Kenya; Section 452(2)(b) all regulations and notices made pursuant to this Act, - 453 Verify source ↗
MISCELLANEOUS - 453. Contravention of Act
The Director-General may suspend a Kenyan ship's Certificate of Registry where there is any contravention of a requirement of this Act or its regulations, until the contravention is rectified.
Section 453. Contravention of Act Section Where, in respect of any Kenyan ship, there is any contravention of a requirement of this Act or any regulations made thereunder, the Director-General may suspend the Certificate of Registry of the ship until the contravention is rectified.
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