Point in Time
Act No: CAP. 221
Act Title: KENYA BROADCASTING CORPORATION
[ Date of commencement: 1st February, 1989. ]
[ Date of assent: 19th December, 1988. ]
Arrangement of Sections
PART I – PRELIMINARY
2.
Interpretation

In this Act, unless the context otherwise requires—

“artiste” means a person, not being an employee of the Corporation, who is invited or engaged to participate in the production and broadcasting of programmes or parts of programmes by sound or television for the Corporation;

“Board” means the Board of Directors of the Corporation established by section 4;

“broadcasting” means radio communication, whether by sound or vision, for reception by members of the public;

“chairman” means the chairman of the Board appointed under section 4(1)(a);

“Corporation” means the Kenya Broadcasting Corporation established by section 3;

“installations” includes aerials, masts, overhead wires or cables, underground cables and fixed apparatus for radio communication, telephone, electrical generation and wired distribution services;

“managing director” means the person appointed to that office under section 5(1);

“radio communication” means emitting or receiving, over paths which are not provided by any material substance constructed or arranged for that purpose, of electro-magnetic energy of a frequency not exceeding three million megahertz being energy which either—

(a)

serves for the conveying of the message, sound or visual images (whether the messages, sound or visual images are actually

received by any person or not) or for the actuation or control of machinery or apparatus; or

(b)

is used in connection with the determination of position, bearing or distance, or for the gaining of information as to the presence, absence, position or motion of any objects of any class;

“television” means the transmission or reproduction by radio communication of images of objects in movement or at rest;

“wired distribution service” means—

(a)

the dissemination of the whole or any part of broadcasting service by means of wires otherwise than within the precincts of a single self-contained building;

(b)

the dissemination of entertainment by way of music, speech or moving or stationary pictures by means of cables or wires extending to or connecting two or more buildings.

PART II – ESTABLISHMENT AND MANAGEMENT OF THE CORPORATION
3.
Establishment of the Corporation
(1)

There shall be established a Corporation to be known as Kenya Broadcasting Corporation.

(2)

The Corporation shall be a body corporate with perpetual succession and a common seal and shall have power to sue and to be sued in its corporate name and to acquire, hold and dispose of movable and immovable property for the purposes of the Corporation.

(3)

The Headquarters of the Corporation shall be in Nairobi.

4.
Establishment of the Board
(1)

There shall be a Board of Directors of the Corporation which shall consist of—

(a)

a chairman of the Board appointed by the President;

(b)

the managing director of the Corporation;

(c)

the Permanent Secretary in the Ministry for the time being responsible for Information and Broadcasting;

(d)

the Permanent Secretary in the Office of the President;

(e)

the Permanent Secretary in the Ministry for the time being responsible for Finance;

(f)

not more than seven members appointed by the Minister, not being employees of the Corporation, of whom not more than three shall be public officers and of whom—

(i) at least one shall have specialization or experience in matters connected with radio communication and radio communication apparatus;
(ii) at least one shall have specialization or experience in radio or television programme production;
(iii) at least one shall have specialization or experience in the print media;
(iv) at least one shall have specialization or experience in financial management and administration.
5.
Managing director
(1)

There shall be a managing director of the Corporation who shall be appointed by the Minister after consultation with the Board whose terms and conditions of service shall be determined by the Minister in the instruments of appointment or otherwise in writing from time to time:

Provided that the first Managing Director shall be appointed by the Minister without the consultation under this subsection.

(2)

The Board shall appoint a Deputy Managing Director and a secretary of the Corporation, whose terms and conditions of service shall be determined under section 15.

6.
Further provisions relating to the Board

The First Schedule shall have effect with respect to the constitution of the Board and otherwise in relation thereto.

7.
Remuneration of directors

The Corporation shall pay to the directors other than the Managing Director and public officers in receipt of a salary, such remuneration, fees or allowances for expenses according to the scales of remuneration specified for the Corporation from time to time by the State Corporations Advisory Committee under the State Corporations Act (Cap. 446).

PART III – POWERS AND FUNCTIONS OF THE CORPORATION
10.
Board to lay down standards
(1)

The Board shall give directions in writing laying down general standards of taste, impartiality and accuracy for the contents, including advertisements, of all programmes broadcast by the Corporation.

(2)

It shall be the duty of all officers and servants of the Corporation and in particular of the Managing Director to ensure that standards so laid down are maintained.

12.
Broadcasting advisory councils
(1)

For the better carrying out of the powers, duties and functions of the Corporation the Board may establish an advisory council to advise the Board on any matter concerning the broadcasting service of the Corporation.

(2)

An advisory council shall consist of not less than seven and not more than thirteen persons, each appointed by the Board and the Board shall appoint one of the members to be chairman.

(3)

An advisory council shall not take part in the day-to-day business of broadcasting administration in the Corporation.

(4)

The Second Schedule shall apply with respect to advisory councils.

13.
Matter to be broadcast in and costs of external services
(1)

Where the Minister has, under paragraph (b) of section 8(1), required the Corporation to provide any external services, the Corporation shall—

(a)

broadcast programmes in the external services to such countries, in such languages and at such times as may from time to time be specified by the Minister after consultation with the Corporation;

(b)

consult and collaborate with such Ministries and Departments of the Government as may be specified in writing by the Minister and shall obtain and accept from them such information regarding conditions in, and the policies of the Government of Kenya towards, the countries specified and other countries as will enable the Corporation to plan and prepare its programmes in the external services in the interests of Kenya.

(2)

The full net cost of providing and transmitting external services shall be borne from funds specially provided to the Corporation by Parliament for that purpose.

14.
Announcements and programmes of national importance
(1)

The Corporation shall, whenever so required in writing by the Minister or by any person authorized in that regard by the Minister in writing, broadcast announcements or programmes of national importance, whether by sound or television.

(2)

The Corporation, when broadcasting any announcement or programmes under this section, may at its discretion announce or refrain from announcing that it is broadcast at the request of the Minister.

(3)

Nothing in this section shall be deemed to limit the right of the Government to submit to the Corporation items of general interest or utility for broadcasting at the discretion of the Corporation.

PART IV – STAFF
16.
Officers seconded from Government service
(1)

The Corporation shall, subject to this section, employ such public officers as may be seconded by the Government.

(2)

The Government may at any time determine the secondment of any public officer who has been seconded to the service of the Corporation under the provisions of this section, and the Corporation may request the Government to determine the secondment of any such officer:

Provided that no such request shall be made unless the Corporation has first given to the officer written notice of the Corporation’s intention to make the request.

18.
Corporation to reimburse Government for seconded officers
(1)

The Corporation shall reimburse to the Government the cost to the Government of any officers seconded to the Corporation under section 16.

(2)

The certificate of the Permanent Secretary to the Treasury as to such cost shall be conclusive proof of such cost.

19.
Corporation to make staff regulations

The Corporation shall make regulations generally relating to the conditions of service of officers and servants of the Corporation and in particular, but without prejudice to the generality of the foregoing, shall make regulations relating to—

(a)

the appointment, dismissal, discipline, pay and leave of, and the security to be given to, officers and servants;

(b)

appeals by officers and servants against dismissal or other disciplinary measures;

(c)

the establishment and maintenance of medical benefits and loan funds, and the contributions payable thereto and the benefits recoverable therefrom.

PART V – ARTISTES
20.
Employment of artistes
(1)

The Corporation may, upon such terms and conditions as the Board shall determine, employ artistes to participate in the broadcasting services of the Corporation and such other services including the production of programmes as the Board shall deem necessary for the purposes of the Corporation.

PART VI – LICENSING OF BROADCAST RECEIVING APPARATUS AND CONNECTED FUNCTIONS OF THE CORPORATION
PART VII – FINANCES OF THE CORPORATION AND CONTROL THEREOF
37.
Government grants

The Government may make grants to the Corporation as are necessary for the purposes of the Corporation and for carrying this Act into effect.

38.
Principles of operation
(1)

It shall be the duty of the Corporation to conduct its business according to commercial principles and to perform its functions in such a manner as to secure that, taking one year with another its gross revenue is not less than sufficient to meet its outgoings which are properly chargeable to revenue account, including proper allocations to the general reserve and provision in respect of depreciation of capital assets, pension liabilities and interest and other provision for the repayment of loans, and further to ensure that, taking one year with another, its net operating income is not less than sufficient to secure an annual return on the value of the net fixed assets in operation by the Corporation of such percentage as the Minister may from time to time direct.

(2)

For the purposes of subsection (1)—

(a)

“net operating income” shall be determined by subtracting from gross operating revenue all operating and administrative expenses, including adequate provision for maintenance and depreciation but excluding interest and other charges on debt; and

(b)

“value of the net fixed assets in operation” shall be the gross value of such assets less the amount of accumulated depreciation shown in the statement of account of the Corporation:

Provided that, if the amounts shown in such statement of accounts do not reflect a true measure of value of the assets concerned because of currency revaluations, changes in prices or similar factors, the value of the fixed assets shall be adjusted adequately to reflect such currency revaluation changes in prices or similar factors.

(3)

In the exercise of its duty under subsection (1), the Corporation may, subject to section 41, invest moneys standing to the credit of the Corporation in such securities as the Board thinks fit.

39.
Borrowing powers
(1)

The Corporation may borrow money by the issue of loan stock on such terms as may be approved by the Minister for time being responsible for Finance.

(2)

The Corporation may otherwise borrow money or obtain credit in Kenya or elsewhere for the purposes of the Corporation with the concurrence of, and subject to such limitations as may be imposed by the Minister responsible for Finance.

(3)

Stock issued under subsection (1) and moneys borrowed or credit obtained under subsection (2) approved by the Minister responsible for Finance for the purposes of this subsection, and all interest and other charges payable in respect of such stock, moneys or credit, shall, unless the instrument or note evidencing or supporting the borrowing shall otherwise provide, be charged upon all the property, undertaking and revenue of the Corporation by operation of this section and without further charge or instrument.

(4)

Except as provided in this section, the Corporation shall not give or execute any mortgage or charge over any of its property or assign its property by way of security for borrowed money.

40.
Financial year

The financial year of the Corporation shall be the period of twelve months commencing on the 1st July and ending on the 30th June in the next succeeding year:

Provided that the first financial year of the Corporation shall be the period commencing on the date of commencement of this Act and ending on the 30th June subsequent to that date.

41.
Investment of funds
(1)

The Board may invest any of the funds of the Corporation in securities in which for the time being a trustee may by law invest trust funds or in any other securities which the Treasury may from time to time approve for the purpose.

(2)

The Board may place on deposit with such bank or banks or financial institutions as it may determine any moneys not immediately required for the purposes of the Corporation.

42.
Annual estimates
(1)

Before the commencement of a financial year the Board shall cause to be prepared estimates of the revenue and expenditure of the Corporation for that year.

(2)

The annual estimates shall make provision for all the estimated expenditure of the Corporation of the financial year concerned, and in particular shall provide—

(a)

for the payment of the salaries, allowances and other charges in respect of the staff of the Corporation;

(b)

for the payment of the pensions, gratuities and other charges in respect of retirement benefits which are payable out of the funds of the Corporation;

(c)

for the maintenance of the buildings and grounds of the Corporation;

(d)

for the proper maintenance, repair and replacement of any installation and of the equipment and other moveable property of the Corporation;

(e)

for the funding of the broadcasting services and training and research activities of the Corporation;

(f)

for the creation of such funds to meet future or contingent liabilities in respect of retiring benefits, insurance or replacement of buildings or installations or equipment and in respect of such other matters as the Board may think fit.

(3)

Annual estimates shall be approved by the Board before the commencement of the financial year to which they relate, and shall be submitted to the Minister for approval and after the Minister has given his approval the Board shall not increase any sum provided in the estimates without the consent of the Minister.

(4)

No expenditure shall be incurred for the purposes of the Corporation except in accordance with the annual estimates approved under subsection (3) or in pursuance of an authorization of the Board given with the prior approval of the Minister.

43.
Accounts and audit
(1)

The Board shall cause to be kept all proper books and records of account of the income, expenditure and assets and liabilities of the Corporation.

(2)

Within a period of four months after the end of each financial year, the Board shall submit to the Auditor-General (Corporations) the accounts of the Corporation together with—

(a)

a statement of income and expenditure during the year; and

(b)

a statement of the assets and liabilities of the Corporation on the last day of that year.

(3)

The accounts of the Corporation shall be audited and reported on annually by the Auditor-General (Corporations) under Part VII of the Exchequer and Audit Act (Cap. 412).

(4)

The expenses of and incidental to the auditing of the accounts of the Corporation shall be borne by the Corporation.

PART VIII – MISCELLANEOUS PROVISIONS
44.
Proceedings on failure of Corporation to comply with the Act

If at any time it appears to the Minister that the Corporation has failed to comply with any of the provisions of this Act, he may, by notice in writing, require the Board to make good the default within such time as may be specified in such notice.

45.
Delegation and signification
(1)

The Board and the managing director may delegate to any person any of the powers vested in them under this Act and may grant to any person powers of attorney.

(2)

Any act or decision, or notification thereof, of the Board or the managing director under this Act may be signified under the hand of an employee authorized for that purpose.

46.
Limitation

Where any action or other legal proceeding is commenced against the Corporation for any act done in pursuance or execution, or intended execution of this Act or of any public duty or authority, or in respect of any alleged neglect or default in the execution of this Act or of any such duty or authority, the following provisions shall have effect—

(a)

the action or legal proceeding shall not be commenced against the Corporation until at least one month after written notice containing the particulars of the claim and of the intention to commence the action or legal proceedings, has been served upon the Managing Director by the plaintiff or his agent;

(b)

the action or legal proceedings shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof.

47.
Restriction on execution against property of Corporation

Notwithstanding anything to the contrary in any law—

(a)

where any judgment or order has been obtained against the Corporation, no execution or attachment, or process in the nature thereof, shall be issued against the Corporation or against any property of the Corporation; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may, by the judgement or order, be awarded against the Corporation;

(b)

no property of the Corporation shall be seized or taken by any person having by law power to attach or distrain property without the previous written permission of the managing director.

51.
Application of Cap. 204

The Protected Areas Act shall apply to the grounds, buildings and installations of the Corporation as though an order for the protection of the grounds, buildings and installations had been made under section 3 of that Act.

52.
Protection on use of name

Any person who, without the written approval of the Corporation, assumes for the purposes of business, or registers in terms of any written law relating to companies or business names under, either—

(a)

a name which includes, with the word “broadcast” or “broadcasting” or “diffusion” or “re-diffusion” or “radio” or “television”, the word “Kenya” or “Kenyan” or “East Africa” or “East African” or “national” or “State” or “general” or “Corporation”; or

(b)

the names “Kenya Radio Service”, or “Kenya Radio Corporation”, or “Kenya Television Corporation” or “Kenya Broadcasting Service” or “the Voice of Kenya” or “Sauti ya Kenya”,

shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.

53.
Regulations

The Minister may, after consultation with the Board, make regulations for the better carrying into effect of any or all of the provisions of this Act other than Part VI.

PART IX – TRANSITIONAL PROVISIONS
54.
Transitional provisions
(1)

The funds, assets and other movable and immovable property held by the Government for and on behalf of the “Voice of Kenya” shall be vested by virtue of this subsection without further assurance, in the Corporation.

(2)

Every public officer employed to effect or amend any entry in any register relating to property, or to issue or amend any certificate, or other document affecting or evidencing title to property shall do everything necessary under the law to transfer any property vested in the Corporation by this paragraph.

(3)

All rights, powers, liabilities and duties whether arising under any written law or otherwise, vested in, imposed on, or enforceable by or against the Government for or in respect of the Voice of Kenya shall be transferred to, vested in, imposed on or enforceable by or against the Corporation.

(4)

Any action, suit or legal arbitration proceedings, or any application to any authority, by or against the Government for or in respect of the Voice of Kenya shall not abate, be discontinued or be prejudicially affected because of this Act but may be prosecuted or continued by or against the Corporation, and any judgement or award obtained by or against the Government for or in respect of the Voice of Kenya, and not fully satisfied shall be enforceable by or against the Corporation.

(5)

In any legal or arbitration proceedings concerning any right or liability transferred to or vested in the Corporation by this Act, a certificate by the accounting officer of the Ministry for the time being responsible for matters relating to Broadcasting, stating that the right or liability has been so transferred or vested shall be prima facie evidence thereof.

(6)

Any reference in any written law, or in any document or any instrument, to the Government, for or in respect of the Voice of Kenya, shall be read and construed as a reference to the Corporation established by this Act.

(7)

All directions, orders, rules, appointments, requirements, authorizations and any other things made or done by the Government for or in respect of the Voice of Kenya, shall be deemed to have been given, made or done by the Corporation.

(8)

Unless the Board otherwise directs and subject to Part IV, all persons who are members of the staff of the Voice of Kenya, immediately before the coming into operation of this Act, shall be members of staff of the Corporation if they so desire and shall be deemed to have been appointed under this Act.

55.
Repeal of Cap. 221 and Cap. 224 and amendment of Cap. 130
(1)

The Kenya Broadcasting Corporation (Nationalization) Act (Cap. 221) and the Broadcast Receiving (Apparatus) Act (Cap. 224) are repealed.

(2)

Section 2(1) of the Copyright Act (Cap. 130) is amended by deleting the definition of “broadcasting authority” and substituting the following—

“broadcasting authority” means the Kenya Broadcasting Corporation established under the Kenya Broadcasting Corporation Act (No. 15 of 1988) or any other broadcaster authorized by or under any written law.

FIRST SCHEDULE

[Rule 2.]

PROVISIONS AS TO THE BOARD AND THE CORPORATION
1.
Tenure of office

The chairman and the directors appointed under paragraph (f) of section 4(1) shall, subject to the provisions of this Schedule hold office for such period not exceeding three years and on such terms as may be determined in the instruments of their appointment, and shall be eligible for reappointment.

2.
Vacation of office

Each director mentioned in the preceeding paragraph may—

(a)

resign his office by notice to the Minister in writing at any time;

(b)

be removed from office by the Minister in writing if he—

(i) has been absent from two consecutive meetings of the Board without permission of the Board; or
(ii) is incapacitated by prolonged physical or mental illness; or
(iii) is otherwise unable or unfit to discharge his functions.
3.
Deputies

Each of the directors mentioned in paragraphs (c), (d) and (e) of section 4(1) may, from time to time, depute in writing an officer of his Ministry to attend meetings of the Board in his place and the officer so deputed shall at such meetings have the same powers as his principal.

4.
Meetings
(1)

Subject to section 8 of the State Corporations Act (Cap. 446) , the Board shall meet for the despatch of business at least four times as it shall appoint, or failing any such appointment, as the chairman shall appoint.

(2)

No meeting of the Board shall be held at any place other than the headquarters of the Corporation without prior written approval of the State Corporation Advisory Committee established under the State Corporations Act (Cap. 446).

5.
Special meetings

The chairman or any five directors may, by not less than twenty-four hours written notice to all other directors, summon a special meeting of the Board at the headquarters of the Corporation at any time.

6.
Notice of meetings

Except where a shorter period is appointed under paragraph 4 or 5, notice of the date, time and place of each meeting shall be given in writing at least five clear days beforehand to every director at such address in Kenya as he shall have notified to the Corporation from time to time:

Provided that the failure of any director to receive such notice shall not invalidate any proceedings.

7.
Quorum

The quorum necessary for the transaction of business by the Board shall be two-thirds of the total number of directors for the time being appointed to the Board and the number nearest to but not less that two-thirds.

8.
Chairman

The chairman shall preside at meetings of the Board:

Provided that if he is not present at the start or at any time during a meeting, the directors present, if a quorum, may choose one of their number, other than the Managing Director, to act as chairman during the chairman’s absence from that meeting.

9.
Voting

Questions arising at meeting shall be decided by a majority of the votes of the directors present and voting:

Provided that in the case of any equality of votes, the chairman of the meeting shall have a second or casting vote.

10.
Minutes

The Board shall cause minutes to be kept of all resolutions and proceedings at each meeting and of the directors thereat.

11.
Other procedures

Subject to the provisions of this Schedule, the Board may determine its own procedure, and the procedure for any committees of the Board and for the attendance of other persons at its meetings, and may make standing orders in respect thereof.

12.
Disclosure of interest
(1)

If a director is directly or indirectly interested in any contract, proposed contract, or other matter and is present at a meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration, he shall, at the meeting and as soon as practicable after the commencement thereof, disclose the fact, and shall not take part in the consideration or discussion of, or vote on, any question with respect to the contract or other matter, or be counted in the quorum of the meeting during the consideration of the matter.

(2)

A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which it is made.

13.
The common seal

The affixing of the common seal of the Corporation shall be authenticated by the signatures of the chairman or some other director authorized generally or specially by the Board to act for the purpose, and of an employee of the Corporation authorized generally or specially by the Board to act for the purpose.

14.
Contracts and instruments

Any contract or instrument which, if entered into or executed by a person not being a body corporate, would not require to be under seal, may be entered into or executed on behalf of the Corporation by any person generally or specially authorized by it for that purpose.

15.
Proof of documents

Any document purporting to be a document duly executed or issued under the seal of the Corporation or on behalf of the Corporation shall be received in evidence and be deemed to be a document so executed or issued without further proof unless the contrary is shown.

SECOND SCHEDULE

[Section 12.]

PROVISIONS AS TO ADVISORY COUNCILS

Tenure and Vacation of Office

1.

The members of an advisory council shall hold office for three years, or such lesser period as the Board may specify in the appointment, and shall be eligible on retirement for reappointment and shall represent such interest as the Board may determine.

2.

A member of an advisory council may at any time by notice in writing addressed to the Board resign his office and if a member becomes, in the opinion of the Board, unfit or unqualified to continue in office, or incapable of performing his duties, the Board may revoke the appointment of the member and communicate the revocation to him in writing.

3.

The names of persons appointed to be members of an advisory council and the interests they represent and the names of persons ceasing to be members of the council shall be notified in the Gazette.

Meetings and Proceedings

4.

Subject as hereinafter provided, an advisory council shall regulate its own procedure.

5.

Meetings of an advisory council shall be called by the chairman of the council whenever the Board so requests.

6.

If the chairman is absent from a meeting of an advisory council, the members present shall elect one of their number to preside at that meeting.

7.

The agenda at a meeting of an advisory council shall consist of such matters as the Board may from time to time refer to the council for consideration by the council and such other matters as the council, with the agreement of the Board, may receive to consider.

8.

A quorum at any meeting of an advisory council shall be one-half of the members of the council.

9.

A resolution at a meeting of an advisory council shall require the affirmative votes of one-half of the members present except the chairman, who shall have a casting vote only.

Staff

10.

The secretary and any other staff of an advisory council shall be members of the staff of the Corporation appointed for the purpose by the Board.