Kenya Trade Remedies Act

This Act may be cited as the Kenya Trade Remedies Act.

Section 2 is titled "Interpretation".

The Board has the power to supervise and offer guidance and strategic direction to the Agency.

The Board must conduct its affairs according to the First Schedule and, subject to that, may regulate its own procedure.

The Board may, by written resolution (generally or in a particular case), delegate its powers or functions to committees or to members, officers, employees or agents of the Agency.

The Board must appoint an Executive Director after a competitive recruitment process and subject to subsection (3). The Executive Director is the Chief Executive Officer and must (a) be responsible to the Board generally for the Agency's functions, (b) be an ex officio member of the Board but must not vote at Board meetings, (c) be the secretary to the Board, (d) subject to Board directions, manage the day-to-day affairs of the Agency, and (e) be responsible for supervision of staff.

Section 14 lists grounds for removal of the Executive Director and refers to notice and an opportunity to challenge the Board’s decision.

The Board may appoint officers or other staff needed for the Agency to perform its functions and may set their terms and conditions of service in consultation with the Salaries and Remuneration Commission.

The common seal of the Agency must be kept in custody as the Board directs and may only be used on the Board's order.

Officers, employees or agents of the Agency (and persons acting on their directions) are not personally liable for actions, claims or demands for acts or omissions by Agency members or officers, employees or agents when done without malice in the course of executing the Agency’s functions, powers or duties.

The Agency must pay compensation or damages to any person for injury, loss or damage caused by the Agency, its agents or officers while carrying out the Agency's lawful functions.

Establishes the Kenya Trade Remedies Agency and lists corporate powers including suing and being sued; acquiring, holding and disposing of property; borrowing and lending money; and performing acts necessary for its functions.

The headquarters of the Agency shall be in Nairobi.

The Agency must investigate and evaluate allegations of dumping and subsidization of imported products in Kenya.

Section 6 lists who is on the Agency's Board (Chairperson appointed by the President on PSC recommendation; Principal Secretaries or their representatives for finance, trade and industrialisation; the Attorney‑General or representative; three members appointed competitively by the Cabinet Secretary; and the Executive Director who shall be the Secretary) and requires the Board to ensure appointments conform to Articles 27 and 32 of the Constitution.

The members must elect the vice-Chairperson from among the members appointed under section 6(f).

Section 8 disqualifies from appointment a person who "is a member of Parliament or a County Assembly".

The Board may recommend removal of a member to the Cabinet Secretary for misconduct or poor performance; the provision lists specific grounds for vacation of office and states members have three-year terms with eligibility for one further three-year term.

The Agency must disclose the sources of its funds in its annual report.

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

The Board must prepare estimates of the Agency's revenue and expenditure at least three months before each financial year and must approve and submit those estimates to the Cabinet Secretary for approval before that financial year begins.

The Board must ensure proper books and records of the Agency's income, expenditure, assets and liabilities are kept.

The Cabinet Secretary must act on the Agency's recommendation within sixty days when required to do so, and must inform the Agency in writing of reasons if they fail to act; the Cabinet Secretary may request the finance Cabinet Secretary to impose a safeguard where increased imports threaten serious injury.

Applications to investigate or evaluate alleged dumping or subsidized imports in Kenya may be made by the manufacturer of a like product or by an authorized person; investigations and evaluations must follow the procedure in the Second Schedule.

Section 25(2) allows a manufacturer of a like product, the official of an association of manufacturers in that industry or an authorised person to apply for investigation or evaluation of imports that have caused or threaten to cause serious injury in Kenya.

The Agency may in writing and within a specified period direct any person to provide information relating to an investigation or evaluation, in a form prescribed by the Agency.

People directed to provide information to the Agency may mark some or all of the information as confidential; if they claim confidentiality they must do so in writing and state the grounds; the Agency must take all measures to protect informants.

The Agency must not disclose confidential information to unauthorised persons until it determines the extent of confidentiality; once it finally determines confidentiality it may disclose information not determined confidential.

The Agency must issue written decisions stating reasons; if those reasons reveal use of confidential information the Agency must notify the provider in writing with a copy and give that notice at least 14 days before publishing; the notified person may apply to the High Court within 14 days; the Agency may not publish until the High Court decides that application.

The Board may appoint investigating officers; appointed investigating officers must carry and show official identification on request; the Agency may call police support during investigations.

Investigating officers may question people under oath, summon persons and materials, accept or refuse certain information, and must record oral information in writing and may require signatures.

People must answer investigators honestly, but a person is exempted from responding when the answer would be an admission of committing an offence.

A court may issue a warrant to an investigating officer to enter and search premises within that court's jurisdiction where there are reasonable grounds linked to an investigation.

Power to enter and search: enter the premises mentioned in the warrant.

Any person affected by a determination, recommendation or decision of the Agency or of the Cabinet Secretary may appeal to the High Court within thirty days for a review.

Variation or setting aside is allowed only to correct an ambiguity, obvious error or omission in a determination, recommendation or decision.

In proceedings under this Act that are not criminal proceedings, the standard of proof is on a balance of probabilities.

Section 38 lists circumstances in which disclosure of information is permitted: "in carrying out any function or exercising any power under this Act"; "as a result of initiating a complaint or participating in any proceedings under this Act"; and for purposes including "the proper administration or enforcement of this Act", "the administration of justice", "at the request of the Executive Director or an investigating officer entitled to receive the information", or "that shall be disclosed under this Act".

A person commits an offence if that person hinders, obstructs or unduly influences any person in the exercise of a power or the performance of a duty under this Act.

Failure to attend when summoned: failure, without sufficient cause, to appear at the specified time and place or to remain in attendance until excused

If a person is convicted of an offence under this Act for which no penalty is provided, they are liable to a fine up to five million shillings, or imprisonment up to five years, or both.

The Cabinet Secretary may, in consultation with the Agency, make regulations to better carry into effect the provisions of this Act; that authority is limited to bringing the Act into effect and must follow principles and standards set out in the Interpretation and General Provisions Act and the Statutory Instruments Act.