Point in Time
Act No: No. 13 of 2013
Act Title: AGRICULTURE AND FOOD AUTHORITY
[ Date of commencement: 17th January, 2014 except for paragraphs 1(ix), 1(x) and 9 of the First Schedule. ]
[ Date of assent: 14th January, 2013. ]
Arrangement of Sections
PART I – PRELIMINARY
PART II – ESTABLISHMENT, FUNCTIONS AND POWERS OF THE AUTHORITY
6.
Powers of the Authority

The Authority shall have all powers necessary for the proper performance of its functions under this Act and in particular, but without prejudice to the generality of the foregoing, the Authority shall have power to—

(a)

enter into contracts;

(b)

manage, control and administer its assets in such manner and for such purposes as best promote the purpose for which the Authority is established;

(c)

determine the provisions to be made for its capital and recurrent expenditure and for the reserves of the Authority;

(d)

receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom;

(e)

enter into association with such other bodies or organizations within or outside Kenya as it may consider desirable or appropriate and in furtherance of the purposes for which the Authority is established;

(f)

open such bank accounts for its funds as may be necessary;

(g)

invest any funds of the Authority not immediately required for its purposes;

(h)

undertake any activity necessary for the fulfilment of any of its functions.

7.
Conduct of business and affairs of the Authority
(1)

The conduct and regulation of the business and affairs of the Authority shall be as provided in the Second Schedule.

(2)

Except as provided in the Second Schedule, the Authority may regulate its own procedure.

8.
Delegation by the Authority

The Authority may, either generally or in any particular case, delegate to any committee or to any member, officer, employee or agent of the Authority, the exercise of any of the powers or the performance of any of the functions or duties of the Authority under this Act or under any other written law.

9.
Remuneration of members of the Board

The remuneration payable to members of the Board shall be determined by the Salaries and Remuneration Commission.

12.
Staff

The Board may appoint such officers, agents and other staff as are necessary for the proper and efficient discharge of the functions of the Authority under this Act, upon such terms and conditions of service as the Board may determine.

13.
The common seal of the Authority
(1)

The common seal of the Authority shall be kept in the custody of the Director-General or of such other person as the Board may direct, and shall not be used except upon the order of the Board.

(2)

The common seal of the Authority, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given.

(3)

The common seal of the Authority shall be authenticated by the signature of the chairperson of the Board and the Director-General.

(4)

The Board shall, in the absence of either the chairperson or the Director-General, in any particular matter, nominate one member of the Board to authenticate the seal of the Authority on behalf of either the chairperson or the Director-General.

14.
Protection from personal liability
(1)

No matter or thing done by a member of the Board or by any officer, member of staff, or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority under this Act, render the member, officer, employee or agent or any person acting on their directions personally liable to any action, claim or demand whatsoever.

(2)

Any expenses incurred by any person in any suit or prosecution brought against him or her in any court, in respect of any act which is done or purported to be done by him or her under the direction of the Board, shall, if the court holds that such act was done bona fide, be paid out of the funds of the Authority, unless such expenses are recovered by him or her in such suit or prosecution.

15.
Liability for damages

The provisions of section 14 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him or her, his or her property or any of his or her interests caused by the exercise of any power conferred by this Act or any other written law or by the failure, wholly or partially, of any works.

PART III – FINANCES OF THE AUTHORITY
17.
Financial year

The financial year of the Authority shall be the period of twelve months ending on the thirtieth June in each year.

18.
Annual estimates
(1)

At least three months before the commencement of each financial year, the Authority shall cause to be prepared estimates of the revenue and expenditure of the Authority for that year.

(2)

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

(a)

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

(b)

payment of allowances and other charges in respect of members of the Board;

(c)

payment of pensions, gratuities and other charges in respect of members of the Board and staff of the Authority;

(d)

proper maintenance of the buildings and grounds of the Authority;

(e)

maintenance, repair and replacement of the equipment and other property of the Authority; and

(f)

creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Board may deem appropriate.

(3)

The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and, once approved, the sum provided in the estimates shall be submitted to the Cabinet Secretary for approval.

(4)

No expenditure shall be incurred for the purposes of the Authority except in accordance with the annual estimates approved under subsection (3), or in pursuance of an authorisation of the Board given with prior written approval of the Cabinet Secretary.

19.
Accounts and audit
(1)

The Board shall cause to be kept proper books and records of accounts of the income, expenditure and assets of the Authority.

(2)

Within a period of three months after the end of each financial year, the Board shall submit to the Auditor-General the accounts of the Authority together with—

(a)

a statement of the income and expenditure of the Authority during that year; and

(b)

a balance sheet of the Authority on the last day of that year.

(3)

The accounts of the Authority shall be audited and reported upon in accordance with the provisions of the Public Audit Act (Cap. 412B).

20.
Investment of funds
(1)

The Board may invest any of the funds of the Authority in securities in which, for the time being, trustees may by law invest trust funds, or in any other securities or banks which the Treasury may, from time to time, approve for that purpose.

(2)

The Board may place on deposit, with such bank or banks as it may determine, any moneys not immediately required for the purpose of the Authority.

PART IV – POLICY GUIDELINES ON DEVELOPMENT, PRESERVATION AND UTILIZATION OF AGRICULTURAL LAND
23.
Land preservation guidelines
(1)

The Cabinet Secretary, on the advice of the Authority, and in consultation with the National Land Commission, for the purposes of the conservation of the soil, or the prevention of the adverse effects of soil erosion on, any land, may, prescribe national guidelines for any or all of the following matters—

(a)

prohibiting, regulating or controlling the undertaking of any agricultural activity including the firing, clearing or destruction of vegetation when such prohibiting, regulating or controlling is deemed by the Cabinet Secretary to be necessary for the protection of land against degradation, the protection of water catchment areas or otherwise, for the preservation of the soil and its fertility;

(b)

requiring, regulating or controlling—

(i) the afforestation or re-afforestation of land;
(ii) the drainage of land, including the construction, maintenance or repair of drains, gullies, contour banks, terraces and diversion ditches;
(iii) salination, acidification and saltification of soil;
(c)

requiring the uprooting or destruction, without payment of any compensation therefor, of any vegetation which has been planted in contravention of a land preservation order;

(d)

requiring the supervision of unoccupied land;

(e)

prohibiting, restricting or controlling the use of land for any agricultural purpose excluding livestock.

(2)

Any guidelines made under this section may provide for—

(a)

such exemptions or conditional exemptions from the operation thereof as may be specified;

(b)

the grant of permits or conditional permits of exemption from the operation thereof;

(c)

its application to certain periods or seasons of the year;

(d)

restricting its application to specified persons or any class or description of person or to any area or areas;

(e)

requiring or prohibiting any act or thing to be done to or in respect of any land notwithstanding that the purpose of such rule or order or its carrying into effect is or will be to the benefit of any other land or land in the ownership or occupation of another person.

PART V – PROVISIONS ON NOXIOUS AND INVASIVE WEEDS
24.
Power to declare plant a noxious or invasive weed
(1)

The Cabinet Secretary may, on the advice of the Authority, by notice in the Gazette, declare a plant to be a noxious or invasive weed in any area which shall be specified in the notice, and which may consist either of the whole of Kenya or of one or more areas thereof.

(2)

By establishment of the county government, the Cabinet Secretary shall seek advice contemplated in subsection (1) from the county executive committee member responsible for agriculture.

(3)

The county government shall provide technical support for the eradication of noxious and invasive weeds as part of its constitutional functions for plant disease control.

25.
Duty to report
(1)

A person having control or an interest over land within an area in which a plant has been declared a noxious or invasive weed in accordance with section 24 shall—

(a)

report forthwith to the county government the presence of any noxious or invasive weed thereon; and

(b)

clear the noxious or invasive weed, or cause it to be cleared from that land.

(2)

A person who fails to comply with the provisions of this section commits an offence.

26.
Power of county government officer to enter land
(1)

An officer of the county government authorized for that purpose may at all reasonable times enter upon land situated in an area in respect of which he or she is authorized for the purpose of ascertaining whether any noxious or invasive weed exists thereon.

(2)

A person who obstructs or attempts to obstruct or hinder an officer of the county government in the exercise of his or her duties under this Act commits an offence.

27.
Order by county government to clear land
(1)

If the officer of the county government finds upon land within a declared area any plant which has been declared to be a noxious or invasive weed under this Act, the county government may, by notice in writing to the person responsible for the land, require that person to clear the land of the noxious or invasive weed within a time to be specified in the notice.

(2)

The notice referred to in subsection (1) shall state the particular noxious or invasive weed which has been found upon the land, and, as far as practicable, the portion or portions of the land on which the noxious or invasive weed has been found.

(3)

A person who fails to comply with the provisions of a notice within the time specified therein commits an offence.

28.
Eradication of weed by county government
(1)

If the person responsible fails to clear the land within the time specified in a notice under this Part, an officer of the county government may enter, with or without assistance, upon the land and eradicate or cause to be eradicated any noxious or invasive weed found thereon.

(2)

Any expenses incurred in eradication shall be a civil debt recoverable summarily from the person responsible for the land.

(3)

Nothing in this section shall relieve the person responsible of any penalty incurred under this Act in consequence of his or her failure to comply with the provisions of a notice under this Act.

(4)

Where the noxious or invasive weed is of such a nature or proportion that it cannot be cleared by an individual or community, the government shall take steps, within six months, of such notice given by an individual to the government, to clear the noxious or invasive weed.

PART VI – RESPONSIBILITY OF COUNTY GOVERNMENTS
29.
Respective roles of national and county governments
(1)

Each county government shall within its area of jurisdiction be responsible, for agricultural matters in accordance with Part 2 of Fourth Schedule to the Constitution.

(2)

The national government shall, in accordance with Part 1 of section 29 of the Fourth Schedule to the Constitution, be responsible for agricultural policy and for assisting the county governments on agricultural matters.

(3)

Each county government shall, for purposes of ensuring uniformity and national standards in the agricultural sector, through its legislation and administrative action, implement and act in accordance with the national policy guidelines issued by the Cabinet Secretary on the advice of the authority under this Act.

(4)

Any action required under this Act to be done by the county government shall be deemed to have been done if done by an officer of the county government authorised by that government in that behalf.

30.
Penalty for non-compliance with order

A person who contravenes or fails to comply with the terms of a land development order commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three years, or both, and in the case of a continuing offence to a fine not exceeding fifty thousand shillings for every day of which the offence continues.

31.
Register of land development orders
(1)

Each county government shall cause a register to be kept containing the names and addresses of all persons upon whom land development orders are served and containing also copies of the orders, and, where any order does not contain them, particulars of the survey or land reference number of the land to which each order relates.

(2)

Upon any land development order being fully complied with, or being varied or cancelled under any of the powers conferred by this Act, an appropriate entry recording compliance, variation or cancellation shall be made in the register.

(3)

The register shall at all reasonable times be open to inspection by any person upon payment of the prescribed fee, and any person inspecting the register may take copies of or extracts from any entry therein.

(4)

Any person may, on payment of the prescribed fee, obtain a copy of or extract from any entry in the register.

(5)

Upon a land development order, or any cancellation or variation of such an order, coming into effect, the county government shall cause a notification thereof, and of the survey, land reference or title number of the land affected, to be given to the Registrar of Titles, who shall, without fee, enter against the title of the land in the appropriate register of titles a memorandum or note of the making, cancellation or variation of the order.

(6)

Every land development order shall be deemed to be an encumbrance on the land to which the order relates.

32.
Land preservation orders

A county government may make a land preservation order against the owner or occupier of land, or against both the owner and occupier either at the same time or at different times.

33.
Appeal against a land preservation order

A person aggrieved by the making of a land preservation order may appeal to the court established under Article 162(2)(b) of the Constitution in the prescribed manner within thirty days of the issue of the order and upon an appeal the court may confirm, vary or cancel the order.

34.
Cancellation and amendments of orders
(1)

The county government may, by order, cancel any land preservation order, or exempt the person on whom any such order has been served from complying with any of the terms of the order, or extend the period within which any of the terms of the order is to be complied with.

(2)

Whenever the county government exercises the powers conferred by subsection (1), it shall cause a notice to be served on the person concerned specifying the manner in which those powers have been exercised, and the order in respect of which those powers have been exercised shall thereupon be deemed to be cancelled or amended accordingly.

35.
Register of orders
(1)

The county government shall cause a register to be kept containing the names and addresses of all persons upon whom land preservation orders are served and containing copies of those orders, and, where any order does not contain them, particulars of the survey or land reference number of the land to which each order relates.

(2)

Upon any land preservation order being fully complied with or being varied or cancelled under any of the powers conferred by this Act, an appropriate entry recording compliance, variation or cancellation shall be made in the register.

(3)

The register shall at all reasonable times be open to inspection by any person upon payment of a prescribed fee, and any person inspecting the register may take copies of or extracts from any entry therein.

(4)

A person may. on payment of the prescribed fee, obtain a copy of or extract from any entry in the register.

(5)

Upon a land preservation order, or any cancellation or variation of such an order, coming into effect, the county government shall cause a notification, and of the survey, land reference or title number of the land affected, to be given to the Registrar of Titles, who shall, without fee, enter against the title of the land in the appropriate register of titles a memorandum or note of the making, cancellation or variation of the order.

(6)

Every land preservation order shall be deemed to be an encumbrance on the land to which the order relates for the purposes of the Lands Act (Cap. 280).

36.
Failure to comply with an order
(1)

Where an owner or occupier against whom a land preservation order is made refuses or fails to comply with the terms of the order, the county government may authorize another person or body of persons, to enter upon the land to which the order relates and to carry out such works on or to place such things in, on or over the land as are required to be done by the order or which are otherwise necessary to comply with, and any person who obstructs the execution of any such works, or any part thereof, or the placing of any such things in, on or over the land commits an offence.

(2)

The expenses incurred in or about the exercise of the powers conferred by subsection (1) shall be a debt due to the Government from the owner or occupier of the land affected, as the county government may determine, or from the owner and occupier of the land affected in such proportions as the county government may determine.

(3)

So long as any debt under subsection (2) remains due, interest at such rate as may be prescribed by the county government in consultation with the Cabinet Secretary for the time being responsible for finance shall be payable as from the date upon which the expenses were incurred.

37.
Penalty for failure to comply

A person who contravenes or fails to comply with the terms of any land preservation order duly served upon him or her commits an offence and shall be liable, on conviction, to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding one year or both, and in addition, in the case of a continuing offence, to a fine not exceeding one hundred shillings for each day on which the offence continues.

38.
Right of lessee to compensation for work done in compliance with order
(1)

Subject to the terms of the lease, where a lessee of any land has incurred expenditure on the land in complying with the terms of any land preservation order, he or she shall be entitled, at the termination of his or her lease, to obtain from the lessor, as compensation for that expenditure, such sum as fairly represents the residuary value of the expenditure by the lessor.

(2)

No claim for compensation under this section shall be enforceable unless before the expiration of two months after the termination of the lease the lessee has served notice in writing on the lessor of his or her intention to make the claim, and a notice under this subsection shall specify the nature of the claim and particulars of the expenditure incurred by the lessee.

(3)

The lessor and the lessee may, within the period of four months after the termination of the lease, by agreement in writing, settle a claim under this section, and the county government may, upon the application of the lessor or lessee made within that period, extend that period by three months.

(4)

Where, on the expiration of the period and any extension thereof made under subsection (3), a claim has not been settled, it shall cease to be enforceable unless before the expiration of one month from the end of the period and any extension, or within such longer time as the county government may in special circumstances allow, an arbitrator has been appointed by agreement between the lessor and the lessee under the provisions of this Act in that behalf or an application for the appointment of an arbitrator under those provisions has been made by the lessor or the lessee.

(5)

Where a lessee lawfully remains in occupation of part of the land in respect of which expenditure referred to in subsection (1) was incurred after the termination of a lease, references in this section to the termination thereof shall, in the case of a claim relating to that part of the land, be construed as references to the termination of the occupation.

(6)

A claim for compensation under this section shall, in default of agreement, be determined by the arbitration of a single arbitrator, and the provisions of the Arbitration Act (Cap. 49) shall apply to the arbitration.

(7)

In this section, “lessor” includes a landlord and a licensor, “lessee” includes a tenant and a licensee and “lease” includes a tenancy and a licence.

39.
Change of owner or occupier affect order

Where a land preservation order is in force in respect of any land, any disposition (including a testamentary disposition), devolution or transmission of the land to which the order relates shall not affect the continued operation of the order, and accordingly the order shall remain in force and be binding on the new owner or occupier as if it had been made so as to relate to the new owner or occupier as well as to the former owner or occupier.

PART VII – MISCELLANEOUS PROVISIONS
41.
Appeals

A person aggrieved by the making of a decision made under this Act by the Authority may appeal to the court established under Article 162(2)(b) of the Constitution.

44.
Competition in the sector

In the discharge of its functions under this Act or any other written law, the Authority shall ensure that there are no dominant undertakings in the sector as defined in section 23 of the Competition Act (Cap. 504).

45.
Repeals

The following Acts are repealed—

(a)

Agriculture Act (Cap. 318);

(b)

Suppression of Noxious Weeds Act (Cap. 325);

(c)

Grass Fires Act (Cap. 327).

46.
Regulations

The Cabinet Secretary may, on the advice of the Authority, make regulations generally for the better carrying out of the purposes and provisions of this Act, and without prejudice to the generality of the foregoing, may make regulations—

(a)

prescribing fees or charges for services rendered under this Act by the Board or its officers, servants or agents;

(b)

regulating and monitoring the entire value chain in the agricultural sector;

(c)

authorizing the examination and inspection of books and documents relating to the production, manufacture, distribution or sale of any produce; and

(d)

requiring the giving of agriculture related information, records to be kept, returns and estimates to be furnished to the Authority relating to the industry.

SECOND SCHEDULE

[Section 7.]

PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD OF THE AUTHORITY
1.
Meetings
(1)

The Board shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.

(2)

Notwithstanding the provisions of subparagraph (1), the chairperson may, and upon requisition in writing by at least five members shall, convene a special meeting of the Board at any time for the transaction of the business of the Board.

(3)

Unless three quarters of the total members of the Board otherwise agree, at least fourteen days’ written notice of every meeting of the Board shall be given to every member of the Board.

(4)

The quorum for the conduct of the business of the Board shall be one half of all the members.

(5)

The chairperson shall preside at every meeting of the Board at which he is present but, in his absence, the members present shall elect one of their numbers to preside, who shall, with respect to that meeting and the business transacted thereat, have all the powers of the chairperson.

(6)

Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and voting and, in the case of an equality of votes, the chairperson or the person presiding shall have a casting vote.

(7)

Subject to subparagraph (4), no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.

2.
Disclosure of interest by Board members
(1)

If a member is directly or indirectly interested in any contract, proposed contract or other matter before the Board and is present at a meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration, that member 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 questions with respect to the contract or other matter, or be counted in the quorum of thl3meeting during consideration of the matter:

Provided that, if the majority of the members present are of the opinion that the experience or expertise of such member is vital to the deliberations of the meeting, the Board may permit the member to participate in the deliberations subject to such restrictions as it may impose but such member shall not have the right to vote on the matter in question.

(2)

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

(3)

A member of the Board who contravenes subparagraph (1) commits an offence and is liable to imprisonment for a term not exceeding six months, or to a fine not exceeding one hundred thousand shillings, or both.

3.
Execution of 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 Board by any person generally or specially authorized by the Board for that purpose.

4.
Minutes

The Board shall cause minutes of all resolutions and proceedings of meetings of the Board to be entered in books kept for that purpose.