Civil Aviation Act

This Act may be cited as the Civil Aviation Act, 2013.

References to 'goods or articles' in this Act include baggage, mail and animals.

Section 3 lists the areas and actors to which the Act applies (aerodromes, air services, various categories of aircraft, personnel and operators, enterprises involved in aircraft design/maintenance, and air navigation services) and sets limited rules on state aircraft and rules of the air.

The Authority may share aviation safety and security information with other Civil Aviation Authorities in Contracting States, subject to appropriate safeguards.

A person who, without lawful excuse, refuses or fails to comply with a summons or gives false or misleading information or evidence in proceedings of the Authority or when complying with a summons commits an offence and is liable on conviction to a fine not exceeding two hundred thousand shillings.

If a matter before the Authority involves a point of law, the Authority may, after giving notice to the concerned parties, refer it to the Tribunal; where referred, the Authority and the parties are entitled to be heard by the Tribunal and may appear personally or be represented by an advocate of the High Court.

Section sets Board composition and appointment rules: Chairperson appointed by the President; Cabinet Secretary must fill vacancies after notification; certain members serve three-year terms and may be reappointed once subject to favourable evaluation.

Board chairperson or members must disclose personal interests, record the disclosure in meeting minutes, refrain from participating or voting on the matter, and excuse themselves where there is an apparent or perceived conflict; failure to disclose is an offence.

A member appointed under section 13(1)(a) or (g) may resign in writing to the Cabinet Secretary.

The Board must control and manage the Authority's affairs, ensure efficient, transparent and ethical performance without undue preference or disadvantage, and must consider and advise the Cabinet Secretary on civil aviation policy and the Authority's objectives.

The Board has power to control and oversee administration of the Authority's assets in a manner that best promotes the Authority's purposes.

The Board must meet at least four times in each financial year (with no more than four months between meetings); the quorum for a Board meeting is six members excluding the Director-General.

The Board may direct where the Authority's common seal is kept; the seal must not be used except on the Board's order.

The Cabinet Secretary appoints the Director-General from a shortlist recommended by the Board after a competitive recruitment process.

The Director-General is responsible to the Board for day-to-day management of the Authority and exercises the Authority's powers, including inspecting, detaining or recalling aircraft for safety or security reasons and prohibiting aircraft from flying until unsafe conditions are rectified.

The Director-General may order detention, prohibition, suspension, revocation or variation of licence or authorisation privileges for an offending entity when there are reasonable grounds to believe a violation has occurred.

The Director-General may delegate most of his statutory powers in writing, subject to directions; delegations are revocable at will; delegates may exercise delegated powers as if conferred directly; persons acting under delegation are presumed to act within its terms absent contrary proof.

The Board must appoint a Corporation Secretary on terms it determines; the Corporation Secretary must perform duties assigned by the Board and is responsible to the Director-General when performing duties under this Act.

The Director-General may appoint staff necessary for the Authority, subject to procedures, terms and conditions determined by the Board; the Board may review staff salaries, wages and terms from time to time.

Board members, and officers, employees or agents of the Authority (and persons acting on their direction) are not personally liable for actions done in good faith carrying out the Authority's functions; however the Authority remains liable to pay compensation or damages for injury caused by the exercise of powers or by failures of works.

The Authority must act on sound financial principles and must, as far as reasonably practicable, ensure its expenditure is charged to its revenue.

Section 27 lists the Authority's sources of funds; allows the Authority to open and operate bank accounts in domestic and foreign currencies in banks approved by the Board; allows the Authority to invest funds not immediately required with the approval of the Cabinet Secretary; and provides that the Government may provide appropriations for deficits and capital funding.

Allows subscribing to or purchasing shares, debentures or other securities of a company.

The Board must cause estimates of the Authority's revenue and expenditure for each financial year to be prepared at least three months before the start of that year.

The Authority must prepare a five-year business plan (to be reviewed yearly) and must prepare the plan and any revisions at least six months before the start of the Authority's financial year; the plan must include financial targets and performance indicators and the listed considerations.

The Authority may borrow funds by issuing loan stock and may borrow money or obtain credit (subject to public finance principles and Cabinet Secretary approval/concurrence); except as provided, the Authority must not mortgage or charge its property as security for borrowed money.

The Authority's financial year is the twelve months from 1 July to 30 June each year.

The Board must keep proper books and records of the Authority's income, expenditure, assets and liabilities; the accounts must be audited by the Auditor-General or an approved auditor; the Auditor-General may direct auditors and submit special reports; auditors must report to the Auditor-General; the Board may not terminate an appointed auditor without the Auditor-General's prior written consent; the Cabinet Secretary must lay the audit report before the National Assembly as soon as reasonably practicable.

The Director-General must prepare an annual operations report within six months after each financial year and submit it to the Cabinet Secretary through the Board; the Board must present the report to the National Assembly with the Auditor-General's report and certified copies of accounts referred to in section 33 (2).

The Authority may deny or withdraw services, licences or certificates and seize aircraft or property for unpaid charges; the Authority must detain seized aircraft or property until payment is made; charges are subject to Cabinet Secretary approval; the schedule of charges is published in an Aeronautical Information Circular and comes into force at least thirty days after publication.

Establishes the Kenya Civil Aviation Authority Fund (the Fund).

A prescribed portion of the proceeds from the charge collected under the Air Passenger Service Charge Act (Cap. 475) is identified as a source of fund.

Payments shall be made out of the Fund for any expenditure the Authority incurs while exercising its powers or performing its functions under this Act.

The Authority may contract out any of its services, provided that such contracting out does not remove the Authority's regulatory functions or compromise safety and security standards.

The Authority must consult, where appropriate, with government departments, other authorities, bodies or persons and users of its facilities and services, and must establish any consultative mechanism it deems necessary to obtain users' views.

The Authority may authorise an aerodrome to provide air navigation services, subject to conditions set by the Authority.

The Director-General is granted unhindered access to aerodromes, holders' premises, aircraft, aviation facilities and related records for performance of the section's functions.

The Director-General may investigate complaints and occurrences (except accidents and serious incidents), must require persons in default to take corrective action when violations are found, may impose penalties or refer matters to the Tribunal if corrective action is not taken, may issue infringement notices and take steps such as grounding aircraft or closing premises to ensure compliance, and holders aggrieved by an infringement notice have a right to appeal to the Director-General within twenty eight days.

The Authority issues aviation personnel certificates to qualified applicants; qualified persons may apply; the Authority may recognize foreign-issued certificates, set fitness tests and categories, issue validations, and holders must comply with related rules.

The Authority must provide assistance to aircraft in distress in Kenya, must collaborate on such assistance as recommended under the Convention, may enter into mutual arrangements with other States for this purpose, and shall permit owners/operators or the State of registration's authorities to provide assistance subject to Kenyan control.

The Authority must render assistance for aircraft missing or in distress within Kenya; the Authority may permit foreign-registered aircraft owners or foreign authorities to assist under the Authority's control; the Authority may consider requests to render assistance in adjacent territories.

Establishes the Kenya Civil Aviation Authority and vests it with corporate powers and functions.

Sets how the Authority acquires land: negotiate with owners for non-public land; notify the Cabinet Secretary if land is public or cannot be agreed; Cabinet Secretary may place public land at the Authority's disposal; President/Cabinet Secretary may be empowered to acquire land for the Authority; Authority must pay compensation when applicable; Authority may, with the Board, convey, transfer or surrender surplus land, which must go to Government or another public institution.

A plaintiff must not start legal proceedings against the Authority until at least one month after serving written notice with claim particulars and intention to sue on the Director-General.

The Cabinet Secretary may transfer government property or assets to the Authority by order and include incidental provisions; the Authority will have assets and liabilities vest in it in connection with its services.

The Director-General must pay from the Authority's revenue any amount ordered against the Authority to the person entitled.

Service of a notice or document on the Director-General is effected by delivering it to the Director-General or to any authorised employee.

All debts owed to the Authority under this Act are recoverable summarily.

The Headquarters of the Authority shall be in Nairobi.

The Authority must economically and efficiently plan, develop and manage civil aviation, and regulate and operate a safe civil aviation system in Kenya in accordance with this Act.

Section 7 lists the functions of the Authority, including licensing and certification of aviation services and personnel, providing air navigation services and search and rescue coordination, regulating safety, security and economic aspects of civil aviation, and giving effect to international agreements.

The Authority is granted the powers necessary to perform its functions, including levying fees, receiving funds, investing monies, entering into contracts and acquiring or disposing of property.

The Authority can summon persons to provide signed written information, produce documents, or appear to give evidence; the Authority may require written evidence; persons cannot avoid compliance by claiming self-incrimination, though such material must not be misused; the Director-General may seek a warrant to search premises if documents are withheld.

It is an offence for a person to imperil, cause or permit danger to an aircraft or persons on board, or to interfere with air navigation facilities; conviction may attract a fine not exceeding two million shillings.

Lists documents to be carried on board an aircraft and authorises the Authority to require inspection of documents for aircraft registered in another State.

Pilots-in-command in Kenyan airspace must follow established air routes and avoid areas designated as prohibited, restricted or danger areas; if an aircraft deviates or enters such an area it is treated as an unauthorized operation and the pilot-in-command must take immediate corrective measures and comply with instructions of competent authorities, including landing if instructed.

Safety-sensitive persons and employees of the Authority must not be under the influence of alcohol or drugs while performing aviation safety/security operations or on duty; contravention is an offence punishable by a fine up to five hundred thousand shillings or suspension/withdrawal/cancellation of licence or other sanctions.

Operators must have an effective drug and alcohol testing system approved by the Authority.

The Director-General may grant exemptions or special authorisations for civil aviation matters on application, subject to terms and conditions and provided safety and security standards and the public interest are not compromised.

Section 50 repealed.

Section 51 lists powers of the Cabinet Secretary to give directions to the Board, approve tariffs and charges, approve capital works over prescribed limits, and to delegate powers to the Director-General; the Director-General may exercise delegated powers subject to Cabinet Secretary directions and conditions; delegations are revocable and do not prevent the Cabinet Secretary from exercising powers.

Section 52 references international obligations and civil aviation policies.

The Cabinet Secretary must appoint investigators of accidents by Gazette notice and designate a chief investigator of air accidents and a Deputy; appointed investigators must have specific aviation qualifications or experience; the Cabinet Secretary has power to appoint advisors with special aviation skills in writing when required.

Establishes an incident reporting system; requires investigators to submit a final report to the Cabinet Secretary for Gazettement; bars use of parts of the final report as evidence in court; sets summons and compliance duties and penalties; allows the chief investigator to seek warrants to obtain documents.

The Cabinet Secretary must assess and audit the Authority's performance standards to meet prescribed international standards; may appoint audit inspectors; those inspectors are entitled to unhindered access to records and may require explanations; the Cabinet Secretary may act on inspectors' advice to correct safety and security deficiencies.

The Cabinet Secretary may, by order published in the Gazette, prohibit erection within a declared area of buildings or structures above a height specified in the order; "declared area" is any area adjacent to or near an aerodrome declared by notice in the Gazette; contravention is an offence punishable by a fine not exceeding two million shillings or imprisonment not exceeding three years, or both.

The Director-General may, by order and subject to conditions, require or authorise owners, occupiers or agents to enter land and carry out work to provide warnings or reduce obstructions; the Director-General must publish notice before making an order, consider representations (including a consultation period of not less than two months), and persons aggrieved may appeal to the Tribunal.

Any person who trespasses on any land forming part of a Government aerodrome or an aerodrome licensed under regulations made under this Act commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding one year or to both.

If someone other than the owner is legally liable to pay damages recoverable under this section, the owner is entitled to be indemnified by that other person against any claim for such loss or damage.

Regulations made under section 82 may set rules about when aircraft noise and vibration is allowed and may make the subsection protecting aerodromes from nuisance claims apply to aerodromes covered by those regulations; subsection (2) prevents an action for nuisance by reason only of such noise and vibration if the regulations are complied with.

When an aircraft is flown between unmanned aerodromes or points within Kenya, the pilot‑in‑command and the aerodrome operator must provide information specified by the Authority.

Pilots, persons in charge and owners commit an offence if they fly an aircraft in a way that causes unnecessary danger to people or property; they may be fined up to two hundred thousand shillings or have licences suspended, withdrawn or cancelled, unless they prove lack of knowledge or consent.

When an aircraft is flown between unmanned aerodromes within Kenya, the Pilot-In-Command and the aerodrome operator must provide the information that the Cabinet secretary prescribes.

Persons must not use weapons against civil aircraft in flight; aircraft must comply with orders under this section; contravening is an offence punishable by a fine not exceeding five million shillings or up to three years' imprisonment, or both.

A person must not commit or attempt to commit aircraft piracy in Kenya, whether the aircraft is in flight or not.

Interfering or attempting to interfere with air navigation within the territory of Kenya.

Covers delivering, transporting, attempting to deliver or transport, or causing delivery or transport of cargo, baggage, or other property to an air operator for commercial air transport.

It is an offence for a person to display or cause to be displayed on any aircraft marks or impressions that are false or misleading about the aircrafts nationality or registration.

People must not let pilotless-capable aircraft fly over Kenya unless they have special authorization from the Authority and comply with its terms.

Flight crew must not carry radio transmitting apparatus when operating an aircraft registered in Kenya, unless they hold a valid license issued by the Authority to install and operate the apparatus in accordance with regulations under this Act.

The Authority must issue rules of the air for Kenya; persons must not fly or manoeuvre aircraft within Kenya except under those rules, and contravening the section is an offence punishable by a fine up to two million shillings or up to one year imprisonment, or both.

submit a report to the Director- General as required

Aircraft lawfully entering or transiting Kenya (with or without landing) that fall under this section cannot be seized, detained, or have proceedings brought against their owners or operators in Kenya on the basis of patent, design or model infringement; spare parts and equipment used for repair are similarly protected except where those parts are sold, distributed, or exported for sale or distribution in Kenya.

Regulations made under this Act may provide for the detention of an aircraft to secure compliance with this Act or the regulations.

Offences under the Act or on a Kenya aircraft are treated as committed where the offender is, and if committed in or over Kenya the offence may be tried by any Kenyan court.

Directors and officers of a body corporate are exempt from liability for an offence if the act or omission constituting the offence took place without their knowledge, consent or connivance.

Creates a National Civil Aviation Administrative Review Tribunal, sets its membership (chairperson, Deputy Registrar, four experienced members), requires the Cabinet Secretary to select nominees through a competitive process and forward them to the Judicial Service Commission, which appoints the chairperson and members; members elect a vice-chair who must be of opposite gender to the chair; the Tribunal is a subordinate court under the Judiciary.

Members serve three-year terms, may be re-appointed once for another three years, vacate office on listed events, and are to be paid allowances approved by the Cabinet Secretary.

Section 68 establishes a Secretary for the Tribunal who is appointed by the Cabinet Secretary through an open and competitive process and who is responsible for day-to-day affairs, answerable to the Tribunal, holds office on terms in the letter of appointment, and performs other functions determined by the Tribunal.

The Tribunal has jurisdiction over any refusal to grant a licence, a certificate or any other authorisation by the Authority, and over transfers of a licence under this Act or regulations made thereunder.

The Tribunal must, on a written appeal within thirty days of the event, inquire and make awards, directions, orders or decisions and notify those decisions to the parties, the Authority or its committee.

The Tribunal has powers to summon witnesses, take evidence on oath or affirmation, order production of documents, summon expert evidence, and (where desirable) receive evidence by affidavit, administer interrogatories and require responses.

Section 72 authorises the Tribunal to award costs and the Tribunal must issue a certificate of costs on application; such certificates may be filed in the High Court and treated as decrees. The Chief Justice may make rules as to appeals and fees, and until rules are made the Civil Procedure Act applies.

The Chairperson of the Tribunal may, with consultation and concurrence of two other members, appoint in writing suitably skilled persons as assessors to advise the Tribunal when such expertise is required.

Fails to attend the Tribunal after being summoned by the Tribunal to do so

The Chairperson and two other members of the Tribunal must form a quorum when hearing and determining any cause or matter under this Act.

A member of the Tribunal who has a direct interest in a matter must disclose that interest in writing and must not participate in deliberations on that matter.

A person aggrieved may appeal to the High Court within thirty days; the High Court may confirm, set aside, vary, remit, exercise Tribunal powers, or make other orders including costs.

A person aggrieved by a High Court decision or order may, within sixty days, appeal to the Court of Appeal on a matter of law.

Members of the Tribunal, including the Chairperson, and officers executing Tribunal process are exempt from being sued in court for acts done or ordered in the discharge of their duties, if they acted in good faith believing they had jurisdiction.

If a person commits an offence under this Act for which no specific penalty is provided, they are liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both.

Designated Authority employees named by the Director-General and police officers at or above inspector may compound offences; an offender can rely on a compounding as a defence if charged later.

The Cabinet Secretary must make regulations to implement and give effect to this Act, regulating air navigation, air transport, air accident investigation and related matters.

Section 83 is spent.

Certain former bodies (the Board and the Tribunal) continue to exist until new ones are constituted, and pending matters before the Tribunal must be continued or disposed of as if instituted before the repeal of section 66.