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| THE KENYA ROADS (KENYA NATIONAL HIGHWAYS AUTHORITY (VESTING) ORDER, 2011 | |
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23rd December, 2011 LEGAL NOTICE NO. 193THE KENYA ROADS ACT, 2007 (No. 2 of 2007) IN EXERCISE of the powers conferred by Paragraph 6 (1) of the Fourth Schedule to the Kenya Roads Act, the Minister for Finance, in consultation with the Minister for Roads, makes the following Order:— THE KENYA ROADS (KENYA NATIONAL HIGHWAYS AUTHORITY (VESTING) ORDER, 2011 1. This Order may be cited as the Kenya Roads (Kenya National Highways Authority) (Vesting) Order, 2011 and shall be deemed to have come into operation on 7th September, 2007. 2. In this Order, unless the context otherwise requires:— “accounting officer” means the Authorized Officer within the Ministry responsible for the matters related to roads. “Authority” means the Kenya National Highways Authority established pursuant to the provisions of Section 3(1) of the Kenya Roads Act, 2007; “national roads” means national roads as classified in the first schedule of the Act; “functions” includes powers and duties; “liabilities” means liabilities, court cases, debts, charges, duties and obligations arising from past and existing project contracts and consultancies’ of every description and (whether present or future, actual or contingent and whether payable to be observed or performed in Kenya or elsewhere); “Minister for Finance” means Minister for the time being responsible for Finance; “Minister for Roads” means Minister for the time being responsible for Roads; “on-going contracts and Consultancies” in relation to the Roads Department means the existing project contracts and consultancies vested in or held by the Department in respect of national roads and all actual or contingent liabilities to which they are subject in respect of their operations immediately before the transfer and vesting date; “past project contracts and consultancies” in relation to the Roads Department means the completed project contracts and consultancies vested in or held by the Department immediately before the commencement date in respect of national roads which all or some actual or contingent liabilities to which they were subject to in respect of their operations were still pending at the transfer and vesting date; “properties” means movable and immovable properties and includes any rights or interests, liabilities, charges, obligations and trusts in such property, any debt or actionable claim, any security or negotiable instrument, any right under a contract and any industrial or commercial undertaking arising from past and existing project contracts and consultancies; “rights” means all rights and powers whether actual, contingent or prospective; “Roads Department” means the department by that name within the Ministry Responsible for roads at the date of commencement of the Act; “transfer and Vesting date” means 7th September, 2007. 3. Notwithstanding anything contained in any other law for the time being in force, all national roads and all their related road reserves throughout the country, all on–going contracts and consultancies with respect to the national roads, respectively specified in the Schedule, that were immediately before the transfer and vesting date vested in Ministry of Roads under the Roads Department shall, from that date be deemed to have transferred and vested in the Authority. 4. All the functions of the Ministry of Roads with respect to the management, development, rehabilitation and maintenance of all national roads and all their related road reserves throughout the country that were immediately before the transfer and vesting date vested in Ministry of Roads under the Roads Department, shall, with effect from that date be deemed to have transferred and vested in the Authority. 5. Subject to this Order, all rights and liabilities in respect of the past and on-going contracts and consultancies in respect of national roads and all their related road reserves of the Ministry of Roads attributable to the Roads Department existing immediately before the transfer and vesting date and specified in the Schedule, shall, with effect from that date, be deemed to have transferred to, vested in, imposed on the Authority and any reference to the Roads Department in any contract or document related thereto shall, for all purposes, be deemed to be reference to the Authority. 6. All rights and liabilities of the Ministry of Roads attributable to the Roads Department immediately before the transfer and vesting date with respect to properties, the past and on-going project contracts and consultancies related to the national roads and all their related road reserves, shall, with effect from that date be deemed to have vested in the Authority and shall be enforceable by or against the Authority; 7. (1) Any property or right vested in Authority by virtue of this Order which immediately before the transfer and vesting date, vested in the Roads Department either alone or jointly with any other person— (a) as trustee or custodian trustee under any trust deed, settlement, covenant or under any other instrument; or (b) as executor or trustee of any person; or (c) as judicial trustee appointed by order of any court; or (d) in any other fiduciary capacity shall, with effect from that date, be deemed to vest in the Authority alone or jointly with such other person, upon the same trust and subject to the same powers, provisions, liability and obligations. (2) Any existing instrument or order, of any court of law under or by virtue of which any property or right vested in the Roads Department in any capacity specified in subparagraph (1), including in the case of a will, any grant of probate thereof, and any provision herein or any existing contract or arrangement for the payment or retention by the Roads Department or of remuneration of their services in any such capacity shall, with effect from the transfer and vesting date, be construed and have effect, so far-as the context permits, as if for any reference therein to the Roads Department there were substituted a reference to the Authority. 8. Any existing contracts, agreements, conveyances, deeds, leases, licenses, permits exemptions, powers or attorney, undertakings, securities and other instruments, arising from /or related to past or existing projects and consultancies’ entered into by, made with or granted or addressed to the Roads Department (under the Accounting Officer) whether alone or with any other person and whether as principal or agent shall, with effect from the transfer and vesting date, be binding and of full force and effect in every respect against or in favour of the Authority as if, instead of the Roads Department, the Authority had been a party thereto, bound thereby or entitled to the benefit therefrom and as if any reference, express or implied to any member, officer or employee of Roads Department as respect anything to be done on or after the transfer and vesting date, were substituted a reference to the member, officer or employee of the Authority who most nearly corresponds thereto— 9. Without prejudice to the provisions of any other paragraph herein, the following provisions shall have effect in relation to the functions and other matters of the Roads Department with respect to past and on-going contracts and consultancies’ vested in the Authority by virtue of this Order (a) any account between the Roads Department under the Accounting Officer and any other person shall, with effect from the transfer and vesting date, be deemed to have become an account between the Authority and that person, with the same rights and subject to the same obligations and incidents, including the rights of set-off as theretofore, and the account shall be deemed to be a single continuing account: (b) any existing instruction, direction, mandate, power of attorney, authority or consent given to or by the Roads Department under the Accounting Officer shall have effect, on and after the transfer and vesting date, as if given to or by the Authority. (c) any security held by the Roads Department for the payment of debts or liabilities, whether present or future, actual or contingent, of any person, which is transferred to the Authority shall, with effect from the transfer and vesting date, be deemed to be held by and be available to the Authority as security for the payment of such debts and liabilities to the Authority, and where the moneys secured by the security include future advances or liabilities of such person, the security shall as from that date, be held by and be available to the Authority as security for future advances to the person by and be available to the Authority as security for future advances to the person by and future liabilities of that person to the Authority to the same extent to which the same was held by or available to the Roads Department immediately before the transfer and vesting date as security for future advances or future liabilities; (d) the Authority shall, in relation to any security transferred or deemed to have been transferred to it and to the moneys thereby secured, be entitled to the same rights and priorities, and be subject to the same obligations and incidents, as the Roads Department would have been entitled and subject to as if the same had continued to be held by the Roads Department; (e) any negotiable instrument or order for payment of money whether drawn, given, accepted or endorsed before, on or after the transfer and vesting date, which is expressed to be drawn by or on or given by or to, or accepted or endorsed by the Roads Department shall on or after that date be deemed to have effect as if it had been drawn by or on, or given by or to, or accepted or endorsed by the Authority; (f) where, by the operation of the provisions of this Order, any right, liability or obligations becomes a right, liability or obligations of the Authority, all other persons shall, with effect from the transfer and vesting date, be deemed to have the same rights, powers and remedies, and in particular, the same rights and powers as to taking or defending any legal proceedings or an application to any authority, for ascertaining, perfecting or enforcing that right, liability or obligations as if it had at all times been a right, liability or obligation of the Authority; (g) the custody of any documents, goods or other property held by the Roads Department as bailee for any other person shall with effect from the transfer and vesting date be deemed to be transferred to the Authority, and the rights and obligations of the Roads Department under any contract of bailment relating to such documents, goods or other property shall be transferred or deemed to be transferred to the Authority on that date; and (h) All existing legal or arbitration proceedings or application to any authority by or against the Roads Department shall not abate, be discontinued or be in any way prejudiced by reason only of the-provisions of this Order, but the same may be prosecuted and continued by or against the Authority and any judgment or award obtained by or against the Roads Department and not fully satisfied before the appointed day shall thereafter be enforceable by or against the Authority; (2) In any legal or arbitration proceedings concerning any right or liability transferred to or vested in the Authority by this Order, a certificate under the hand of the Director-General or other officer authorized by the Authority in that behalf, that such right or liability has been so transferred to or vested in the Authority shall be prima facie evidence of that transfer or vesting. 10. With effect from the transfer and vesting date, all documents, records and admissions in relation to past and on-going contracts and consultancies’ which would, before that date, have been evidence in respect of any matter for or against the Roads Department shall be admissible evidence for or against the Authority. 11. (1) Every public officer having the power or duty to effect or amend any entry in any register relating to property, or to issue or amend any certificate or other document effecting or evidencing title to property shall, upon request made by or on behalf of the Authority or the owner of such property, do all such things as are by law necessary to complete the transfer of any property effected by this Order. (2) No fee or other charge shall be payable or chargeable in respect of any act under sub-paragraph (1) above. Kenya National Highways Authority (KeNHA) SCHEDULE (paragraph 3, 5)
(ii) Furniture and Office Equipments
(iii) On- going contracts and consultancies
SCHEDULE (Paragraph 6) Pending cases
Dated the 4th November, 2011. UHURU KENYATTA, Deputy Prime Minister and Minister for Finance. |
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