Point in Time
Act No: No. 21 of 2013
Act Title: CIVIL AVIATION
[ Date of commencement: 25th January, 2013. ]
[ Date of assent: 14th January, 2013. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

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

3.
Application of the Act
(1)

The provisions of this Act or any regulations made thereunder shall, except where expressly or by implication excluded, apply to—

(a)

all aircraft whilst in or over any part of Kenya;

(b)

all Kenya aircraft and the crew and other persons on board wherever they may be; and

(c)

all aerodromes and service providers within aerodromes.

(2)

The provisions of this Act shall not, except where expressly included or if the Cabinet Secretary so directs by order published in the Gazette, apply to state aircraft or to any class or classes of state aircraft.

(3)

Despite the provisions of subsection (2), in the interest of aviation safety, all aircraft shall be subject to the requirements of this Act in respect of rules of the air.

PART II – ESTABLISHMENT, COMPOSITION AND FUNCTIONS OF THE KENYA CIVIL AVIATION AUTHORITY
4.
Establishment of Authority
(1)

There is established an authority to be known as the Kenya Civil Aviation Authority.

(2)

The Authority shall be a body corporate with perpetual succession, and a common seal and shall in its corporate name, be capable of—

(a)

suing and being sued;

(b)

taking, purchasing or otherwise acquiring, holding and disposing of movable and immovable property;

(c)

borrowing money with the approval of the Cabinet Secretary and the Cabinet Secretary for the time being responsible for matters relating to finance;

(d)

entering into contracts; and

(f)

doing or performing all such other things or acts necessary for the proper discharge of its functions under this Act, which may be lawfully done or performed by a body corporate.

(3)

The Authority shall be the state agency for the management of aviation safety in Kenya.

5.
Headquarters

The Headquarters of the Authority shall be in Nairobi.

6.
Objectives of the Authority

The object and purpose for which the Authority as established shall be, to economically and efficiently plan, develop and manage civil aviation, regulate and operate a safe civil aviation system in Kenya in accordance with the provisions of this Act.

8.
Powers of the Authority
(1)

The Authority shall have all the powers necessary for the proper performance of its functions under this Act.

(2)

Without prejudice to the generality of subsection (1), the Authority shall have power to—

(a)

determine, set out and levy rates, charges, dues or fees for any services performed by the Authority, or for use by any person of the facilities provided by the Authority or for the grant, renewal or validation of a licence, permit or certificate, subject to the approval of the Cabinet Secretary;

(b)

receive any gifts, grants, donations or endowments made to it or any other monies in respect of it and to make legitimate disbursement therefrom in accordance with the provisions of this Act;

(c)

invest any monies not immediately required for its purposes in the manner provided in this Act or any other written law;

(d)

enter into contracts, arrangements, agency, associations or partnerships with any person, Government agency or authority, whether, within or outside Kenya, subject to any limitations that may be set out by the Cabinet Secretary;

(e)

acquire, hire, hold, lease out, or dispose of all types of assets or property including land:

Provided that the Authority shall not sell, let or otherwise dispose of any buildings, land or other assets vested in it by virtue of section 40 except with the consent of and subject to any conditions that may be set out by the Government.

9.
Power to obtain information, documents and evidence
(1)

Where the Authority has reasons to believe that a person is capable of supplying information, producing a document or giving evidence that may assist in the performance of any of its functions, the Director-General may, by summons signed by himself or a delegated officer of the Authority and served on that person, require the person—

(a)

to furnish the information in writing signed by the person served and in the case of a body corporate, signed by a competent officer of the body corporate;

(b)

to produce the document to the Authority; and

(c)

to appear before the Authority to give evidence.

(2)

A summon under this section shall specify the required time and manner of compliance.

(3)

The Authority may require that any evidence referred to under this section be given in writing.

(4)

A person shall not be excused from complying with summons under this section on the grounds that compliance may incriminate the person or make the person liable to a penalty:

Provided that such information, documents or evidence shall not be put to inappropriate use.

(5)

Where the Authority has reason to believe that a person is in possession or control of any information or document which may assist in the performance of its functions and that the person has refused or failed to supply such information or document, the Director-General may apply to the Tribunal for issuance of a warrant authorising a police officer to enter into any premises believed to contain or into which a document is kept or hidden and conduct search and make copies or take extracts of documents therein.

10.
Protection of safety information

Aviation safety and security information obtained, gathered voluntarily or otherwise given to the Authority under this Act or regulations made thereunder shall not be put to any inappropriate use:

Provided that the Authority shall not be precluded from sharing aviation safety and security information with other Civil Aviation Authorities in the Contracting States subject to appropriate safeguards.

11.
Failure to comply with summons or giving of misleading information

A person who without lawful excuse refuses or fails to comply with a summon, gives false or misleading information or evidence either voluntarily in any proceedings of the Authority or in purported compliance with a summon under this section, commits an offence and shall be liable on conviction to a fine not exceeding two hundred thousand shillings.

12.
Reference to Tribunal
(1)

When any matter to be determined by the Authority under this Act appears to it to involve a point of law, the Authority may, after giving notice to the concerned parties, refer the matter to the Tribunal for direction.

(2)

Where any matter has been referred to the Tribunal under subsection (1), the Authority and the parties to the proceedings shall be entitled to be heard by the Tribunal before any decision is made in respect of such matter and may appear personally or be represented by an advocate of the High Court.

13.
Board of Directors
(1)

There shall be a Board of Directors of the Authority which shall be the governing body of the Authority consisting of—

(a)

a Chairperson, who shall be appointed by the Cabinet Secretary through an open and competitive process;

(b)

the Director-General, appointed under section 19;

(c)

the Principal Secretary of the Ministry for the time being responsible for matters relating to civil aviation or his representative;

(d)

the Principal Secretary to the National Treasury or his representative;

(e)

the Principal Secretary of the Ministry for the time being responsible for matters relating to internal security or his representative;

(f)

the Principal Secretary of the Ministry for the time being responsible for matters relating to tourism or his representative;

(g)

five other persons, not being public officers, to be recruited through an open and competitive process and to be appointed from a list of at most three qualified persons by the Cabinet Secretary of whom—

(i) two shall have knowledge and experience either in aviation, air transport matters, piloting, aeronautical engineering or any other related field;
(ii) one shall have knowledge and experience in aviation law;
(iii) one shall have knowledge and experience in finance, economics, administration or any other related field; and
(iv) one shall be a holder of such other qualifications and experience of proven ability in such other fields as the Cabinet Secretary may deem necessary.
(2)

A person shall not qualify for appointment as Chairperson under subsection (1)(a) unless that person—

(a)

is a citizen of Kenya;

(b)

meets the requirements of Chapter Six of the Constitution; and

(c)

has knowledge and experience in matters relating to administration or has such other qualifications and experience of proven ability in such other fields as the Cabinet Secretary may deem necessary.

(3)

A person shall not be appointed a member of the Board under subsection (1)(g) unless that person—

(a)

is a citizen of Kenya;

(b)

meets the requirements of Chapter Six of the Constitution; and

(c)

does not hold a position or have such interests that are likely to place him in a position of conflict of interest or impose undue influence on the Authority or its employees in discharging its functions under this Act or regulations made thereunder.

(4)

The members appointed under subsection (1)(a) and (g) shall serve for a period of three years on such terms and conditions as may be specified in their instruments of appointment and shall be eligible for re-appointment for a further one term of three years.

(5)

A member of the Board appointed under subsection (1)(a) and (g) shall cease to be a member of the Board if that member—

(a)

dies;

(b)

resigns; or

(c)

assumes a political office or is found to have contravened the provisions of Chapter Six of the Constitution.

(6)

The Chairperson shall notify the Cabinet Secretary as soon as a vacancy occurs in the membership of the Board, and the Cabinet Secretary shall, appoint a member through an open and competitive process to fill such vacancy within three months of receiving the notice and the person so appointed shall hold office until the expiration of the term of office of the member in whose place he or she was appointed.

14.
Termination of appointment of Directors
(1)

The Cabinet Secretary may terminate the appointment of a member appointed under section 13(1)(a) and (g) if that person—

(a)

has been absent from three consecutive meetings of the Board without permission;

(b)

is adjudged bankrupt or enters into a composition scheme or arrangement with his creditors;

(c)

is convicted of an offence involving dishonesty or fraud;

(d)

is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months;

(e)

is incapacitated by prolonged physical or mental illness; or

(f)

fails to comply with the provisions of this Act relating to disclosure of interest.

(2)

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

15.
Functions of the Board
(1)

The Board shall be responsible for the general control of the performance and management of the undertakings and affairs of the Authority, and shall include a general duty to ensure that the functions of the Authority are carried out in an efficient, transparent and ethical manner and that no particular person or body is given undue preference or subjected to any undue disadvantage.

(2)

The Board shall consider and advise the Cabinet Secretary on the development and maintenance of civil aviation policy framework and the objectives of the Authority.

(3)

Without prejudice to the generality of subsections (1) and (2), the Board shall—

(a)

consider and advise the Cabinet Secretary—

(i) in relation to the establishment of air services;
(ii) on legislative proposals relating to civil aviation including legislation to give effect to the Chicago Convention, and other international conventions and instruments relating to civil aviation;
(iii) on measures for the promotion or support of any airline designated by the Government for the purpose of any international air services agreement;
(iv) in relation to fares and freight rates and related matters including any resolution of the International Air Transport, Association or any body which succeeds that Association;
(v) in relation to the establishment, maintenance and development of air navigation facilities and services;
(vi) on such other matters affecting civil aviation as it considers desirable in the interest of civil aviation in Kenya;
(b)

determine and set priorities for the general performance targets by the Authority;

(c)

consider and determine the strategic and business plans and budgets of the Authority;

(d)

ensure that measures for the development of civil aviation are initiated and implemented.

16.
Powers of the Board
(1)

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

(a)

control and oversee the administration of the assets of the Authority in such manner and for such purposes as best promote the purposes for which the Authority is established; and

(b)

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

17.
Meetings of the Board
(1)

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

(2)

The quorum at a meeting of the Board shall be six members excluding the Director-General.

(3)

The conduct and regulation of the business and affairs of the Board shall be as provided in the First Schedule.

18.
The common seal of the Authority
(1)

The Common Seal of the Authority shall be kept in such custody as the Board may direct and shall not be used except on 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 and until the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given.

19.
Appointment of the Director-General
(1)

There shall be a Director-General of the Authority who shall be appointed by the Cabinet Secretary, from a list of at most three qualified persons recommended by the Board following a competitive recruitment process.

(2)

Subject to this section, the terms and conditions of service of the Director-General shall be determined by the Board.

(3)

The Director-General shall be the Chief Executive Officer of the Authority and shall neither engage in any other paid employment nor hold a position or have such interests that are likely to place him or her in a position of conflict of interest or impose undue influence on the Authority or its employees in discharging its functions under this Act or regulations made thereunder.

(4)

A person shall not qualify for appointment as the Director-General under subsection (1) unless that person—

(a)

is a citizen of Kenya;

(b)

meets the requirements of Chapter Six of the Constitution; and

(c)

has knowledge and experience in matters relating to civil aviation.

(5)

The Director-General shall hold office for a term of three years from the date of appointment but shall, upon the recommendation of the Board, be eligible for re-appointment for one further term of three years.

(6)

The Cabinet Secretary may, in consultation with the Board, terminate the appointment of the Director-General if he or she—

(a)

has been absent from three consecutive meetings of the Board without the permission from the Chairperson;

(b)

is adjudged bankrupt or enters into a composition scheme or arrangement with his creditors;

(c)

is convicted of an offence involving dishonesty or fraud;

(d)

is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months;

(e)

is incapacitated by prolonged physical or mental illness;

(f)

is found to have contravened the provisions of Chapter Six of the Constitution; or

(g)

fails to comply with the provisions of this Act relating to disclosure of interest.

(7)

The Director-General may, at any time, resign his or her office by notice in writing to the Cabinet Secretary.

20.
Responsibilities and powers of the Director-General
(1)

The Director-General shall be responsible to the Board for the day to day management of the Authority and shall be responsible for the exercise of all powers and the discharge of all functions of the Authority and shall have control over all personnel and activities of the Authority.

(2)

The Director-General shall exercise such powers as are necessary for the performance of the functions of the Authority to enable the objectives, implementation and applications of the regulations made under this Act and in particular, but without prejudice to the generality of the foregoing, the Director-General shall have power to—

(a)

inspect, board, or detain an aircraft if serious safety and security concerns are identified or recall an aircraft in flight and search such aircraft during routine inspections or where he or she has reasonable grounds to suspect that the aircraft is being used in contravention of this Act or any regulations made thereunder or that it contains any matter which may be used as evidence in respect of an offence under this Act or the regulations;

(b)

ensure that the provisions of this Act and any rules and regulations made thereunder are complied with to the extent necessary in the interest of aviation;

(c)

encourage and foster the safe development of civil aviation in Kenya;

(d)

plan, develop and formulate safe, secure and efficient utilization of the Kenya airspace;

(e)

acquire, establish and improve air navigation facilities where necessary within the limits of available appropriation;

(f)

establish a school or schools for the purpose offering instruction and training in matters related to the aviation industry;

(g)

promulgate rules and procedures governing the notification and reporting of accidents and incidents involving aircraft so as to facilitate investigations;

(h)

use, with their consent the available services, equipment and facilities of other agencies and to co-operate with those agencies in the establishment, and use of services, equipment and facilities of the Authority;

(i)

monitor the deployment and utilization of the movable and immovable property of the Authority;

(j)

prepare the annual report and financial statement of the Authority;

(k)

implement, co-ordinate and supervise the defined activities related to the management of aviation safety and aviation security as the accountable executives of the State Safety Programme and the National Civil Aviation Security Programme; and

(l)

assess and audit the performance standards of the State Safety Programme functions of other State aviation agencies identified by the Cabinet Secretary, to ensure that the State Safety Programme is performing effectively as required.

21.
Suspension or revocation of privileges of a licence

Where the Director-General has reasonable grounds to believe that a violation of this Act, the regulations and any other rules made thereunder has occurred, he or she may in respect of the offending entity specified under section 39, make an order to detain, prohibit, suspend, revoke or vary the privileges of a licence, certificate or any other authorisation issued by the Authority.

22.
Delegation by the Director-General
(1)

The Director-General may, from time to time, in writing, either generally or particularly, delegate to any person all or any of the powers, exercisable by him under any written law, but not including this present power of delegation.

(2)

Subject to any general or special direction given or condition attached by the Director-General, a person to whom any powers are delegated under this section may exercise those powers in the same manner and with the same effect as if they had been conferred on him directly by this section and not by delegation.

(3)

Every person purporting to act pursuant to any delegation under this section, shall be presumed to be acting within the terms of the delegation in the absence of proof to the contrary.

(4)

Any delegation under this section may be made to a specified person or to persons of a specified class or may be made to the holder or holders for the time being of a specified public office or class of public officers.

(5)

Every delegation under this section shall be revocable at will and no such delegation shall prevent the exercise of any power by the Director-General.

(6)

Any such delegation shall, until revoked, continue in force according to its tenure, despite the fact that the Director-General by whom it was made may have ceased to hold office and shall continue to have effect as if made by the person for the time being holding office as Director-General.

23.
Appointment of Corporation Secretary
(1)

There shall be a Corporation Secretary who shall be appointed by the Board on such terms and conditions as the Board may determine and who shall perform such duties as the Board may, from time to time, assign.

(2)

In the performance of his duties under this Act, the Corporation Secretary shall be responsible to the Director-General.

24.
Staff of the Authority
(1)

The Director-General may appoint such staff of the Authority as are necessary for the proper discharge of the functions of the Authority under this Act upon such procedures, terms and conditions of service as the Board may determine.

(2)

The Board may review salaries, wages and other terms and conditions of service of the staff of the Authority from time to time.

25.
Protection from personal liability
(1)

No action or thing done by a member of the Board or by any officer, employee or agent of the Authority shall, if the action or thing is done in good faith 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 direction personally liable to any action, claim or demand whatsoever.

(2)

The provisions of subsection (1) shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or any other written law or by the failure, whether wholly or partially, of any works.

26.
Principles of operation

The Authority shall perform its functions in accordance with sound financial principles and shall ensure, as far as reasonably practicable, that expenditure of the Authority is properly charged to its revenue.

27.
Funds of the Authority
(1)

The funds of the Authority shall consist of—

(a)

monies that may accrue to the Authority in the discharge of its functions;

(b)

grants and loans from the Government;

(c)

grants and loans from any body, organization or persons;

(d)

interest on savings made by the Authority;

(e)

such monies that may be provided by Parliament for the purposes of the Authority; and

(f)

money from any other source.

(2)

The Authority may open and operate its own bank accounts in both domestic and foreign currencies in banks approved by the Board.

(3)

The Authority may, with the approval of the Cabinet Secretary, invest any funds of the Authority not immediately required for use by the Authority in such securities as the Board deems fit.

(4)

The Government may provide appropriations to meet operating deficits and capital funding of the Authority.

28.
Commercial ventures

The Authority may, with a written approval of the Cabinet Secretary —

(a)

subscribe to or purchase shares, debentures or other securities of a company;

(b)

form a company that would be a subsidiary of the Authority;

(c)

enter into partnership with any body, organisations or enterprise whose objectives are compatible with the purposes for which the Authority has been established.

29.
Annual estimates
(1)

At least three months before the commencement of each financial year, the Board 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 the financial year concerned, and in particular shall provide for—

(a)

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

(b)

the payment of the pensions, gratuities and other charges in respect of retirement benefits to staff of the Authority;

(c)

the proper maintenance of buildings and the grounds of the Authority;

(d)

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

(e)

the 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 matters pertaining to the Authority as the Board may decide;

(f)

the provisions of air navigation services;

(g)

the provision of personnel training.

(3)

The annual estimates shall be submitted to the Cabinet Secretary for approval before the commencement of the financial year to which they relate provided that once approved, the sum provided in the estimates shall not be increased without the prior consent of the Cabinet Secretary.

(4)

An expenditure shall not be incurred for purposes of the Authority except in accordance with the annual estimates approved under subsection (3) or in pursuance of an authorisation of the Cabinet Secretary.

30.
Business plan
(1)

The Authority shall prepare a five-year business plan which shall be reviewed yearly.

(2)

The business plan shall contain financial targets and performance indicators for the Authority.

(3)

When preparing the business plan, the Authority shall consider—

(a)

standards of aviation safety;

(b)

the objectives and policies of the Government;

(c)

funds of the Authority;

(d)

assets and liabilities of the Authority;

(e)

any other consideration the Authority deems appropriate.

(4)

The business plan and the revisions thereof shall be prepared by the Authority at least six months prior to the commencement of the Authority’s financial year.

31.
Borrowing powers
(1)

The Authority may borrow funds by the issue of loan stock on such terms as may be approved by the Cabinet Secretary responsible for matters relating to finance upon recommendation of the Cabinet Secretary.

(2)

The Authority may in line with principles of public finance management as set out in the Constitution and the Public Finance Management Act, 2012 (Cap. 412C), borrow money or obtain credit in Kenya or abroad for carrying out its functions with the concurrence of and subject to such limitations as may be set out by the Cabinet Secretary responsible for matters relating to finance.

(3)

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

(4)

Any stock issued by the former Authority which, by virtue of an order made under subsection (3) becomes the liability of the Authority and shall, subject to the terms of such order, be deemed to be the stock issued by the Authority and shall be held in the same right and on the same powers, privileges, provisions and charges as those in, or subject to which such stock was issued.

(5)

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

32.
Financial year

The financial year of the Authority shall be the twelve calendar months commencing on the 1st day of July in each year and ending on the 30th day of June the following year.

33.
Records and accounts of the Authority
(1)

The Board shall cause to be kept all proper books and records of the income, expenditure, assets and liabilities 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 or an auditor appointed under subsection (3), the accounts of the Authority together with—

(a)

a statement of income and expenditure during that year; and

(b)

a statement of the assets and liabilities of the Authority as at the last day of the financial year.

(3)

The accounts of the Authority shall be audited by the Auditor-General or by an auditor appointed by the Board with the written approval of the Auditor-General.

(4)

The appointment of an auditor shall not be terminated by the Board without the prior written consent of the Auditor-General.

(5)

The Auditor-General may give general or special directions to an auditor appointed under subsection (3) and the auditor shall comply with those directions.

(6)

An auditor appointed under subsection (3) shall report directly to the Auditor-General on any matter relating to the directions given under subsection (5) of this section.

(7)

Despite anything in this Act, the Auditor-General may submit to the Cabinet Secretary a special report on any matters incidental to his or her powers under this Act, and relevant sections of the Public Audit Act, 2003 (Cap. 412B), shall apply, with necessary changes, to any report made under this section.

(8)

The Cabinet Secretary shall lay the audit report before the National Assembly as soon as reasonably practicable after the report is submitted to him.

(9)

The fee for any auditor, not being a public officer, shall be determined and paid by the Board.

34.
Annual report by the Authority

The Director-General shall, within three months after the end of each financial year prepare a report of the operations of the Authority during that year and shall submit such report to the Cabinet Secretary, through the Board, who shall cause it to be presented to the National Assembly together with the report of the Auditor-General and certified copies of the accounts referred to in section 33(2).

35.
Charges and fees
(1)

The Authority may determine, set out and levy charges—

(a)

for any services performed by the Authority; or

(b)

for use of the facilities provided by the Authority; or

(c)

for the grant of a license, permit or certificate, based on the transparent principle of cost recovery, principles of public finance management as set out in the Constitution and the Public Finance Management Act, 2012 (Cap. 412C) and subject to the approval by the Cabinet Secretary.

(3)

The schedule of charges shall be published in an Aeronautical Information Circular.

(4)

The schedule of charges shall come into force on a date specified therein, which shall be at least thirty days following publication in the Aeronautical Information Circular.

(5)

If any amount due and payable under this section is not paid by any party after demand by the Authority and remains unpaid beyond the time specified for payment thereof, the Authority may deny, withdraw service, licence or certificate, seize the aircraft or other property of the debtors after giving reasonable notice of the intention to seize the aircraft or property of the owner or operator of the aircraft and the Authority shall detain the aircraft or property until payment is made.

36.
Contracting out

The Authority may contract out any of its services provided that such contracting out shall not abrogate from the Authority’s regulatory functions and compromise safety and security standards.

37.
Consultation with users or departments
(1)

In the performance of its functions and exercise of its powers, the Authority shall, where appropriate, consult with Government departments, other authorities, bodies or persons and users of the Authority’s facilities and services.

(2)

The Authority shall establish any consultative mechanism it deems necessary to obtain the views of the users of the Authority’s facilities and services.

38.
Authorisation to provide air navigation services

The Authority may authorise an aerodrome to provide air navigation services for the use of such aerodrome subject to such conditions as may be set by the Authority.

39.
Inspection of aerodromes, premises and aircraft
(1)

The Authority shall inspect any aerodrome used for civil aviation operations, premises of any regulated agent or premises of the holder of an air service license, certificate, authorisation or other approval document issued by the Authority or any aircraft on Kenyan territory regardless of their state of registry or Kenya registered aircraft wherever it may be for reasons of aviation safety, security, consumer protection and for any other reasons for which the Authority is established.

(2)

The Authority’s inspectors shall have unhindered access to aerodromes, premises of any regulated agent or premises of the holder of air service license, certificate, authorisation or other approval document or aircraft wherever it may be and the related facilities and installations and to any records, information and explanation that may be required in the course of their inspections.

(3)

The Authority’s inspectors shall, where they find that an aerodrome operator, regulated agent or a holder of air service licence, certificate, authorisation or approval document or an aircraft is in violation of this Act or regulations made hereunder, issue an infringement notice to such licence, certificate or authorisation holder as provided in the Second Schedule stating the particulars of the violation, the period within which to comply and the attendant penalty for the stated violation.

(4)

A licence, certificate and authorisation holder, regulated agent or any person that may be aggrieved by any of the matters raised by the infringement notice issued by the Authority’s inspector, such licence, certificate or authorisation holder, regulated agent or any person so aggrieved shall have a right to appeal to the Director-General within twenty-eight days from the time of issuance of the infringement notice.

(5)

The Director-General upon receipt of an appeal may consider the grounds for appeal and—

(a)

confirm, set aside or vary the order or decision in question;

(b)

exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or

(c)

make such other order as he may deem just and expedient.

(6)

Any person aggrieved by the order of the Director-General under subsection (5) may appeal to the Tribunal in accordance with the relevant provisions of this Act.

40.
Acquisition of land for purposes of the Authority
(1)

Where land is required by the Authority for its use, the Authority may either—

(a)

if such land is not public land, acquire such land through negotiation and agreement with the registered owner thereof; or

(b)

if such land is public land or if the Authority is unable to acquire it by agreement in accordance with paragraph (a), it shall notify the Cabinet Secretary responsible for matters relating to lands that the land specified in the notice is required for the purposes of the Authority.

(2)

When notice has been given under subsection (1)(b) then—

(a)

if the land is public land, the Cabinet Secretary responsible for matters relating to lands may, in his discretion and upon such terms and conditions as he may think fit, place such land at the disposal of the authority to be utilized for the purposes of the Authority; or

(b)

if the land is not public land, any provision in any written law which empowers the President or the Cabinet Secretary responsible for matters relating to lands to acquire or direct the acquisition of such land for any specific purpose shall be, deemed to include a power enabling the President or the Cabinet Secretary responsible for matters relating to land to acquire or direct the acquisition of such land for the purposes of the Authority.

(3)

Where any compensation is payable to any person in respect of any land specified in the notice given under subsection (1)(b) acquired by the President or the Cabinet Secretary responsible for lands, and such land after being so acquired is placed at the disposal of the Authority in accordance with subsection (2)(a), the amount of compensation payable to that person, in accordance with the provisions of the law under which the land was acquired, shall be paid by the Authority in line with the relevant law dealing with compulsory acquisition of private land.

(4)

The Authority may at any time, in consultation with the Board, convey, transfer or surrender any land surplus to both its existing and future requirements by a conveyance or a deed of surrender:

Provided that such land shall be surrendered to the Government and shall be conveyed or transferred to another public institution and not a private person in line with the provisions of Article 62 of the Constitution.

(5)

The provisions of subsection (4) shall apply to land vested in the Authority by any written law, including this Act, as well as land conveyed to it or otherwise placed at its disposal.

41.
Limitation of actions

Where an action or other legal proceeding is commenced against the Authority for any act done pursuance, or execution or intended in execution of this Act or 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 of authority, the following provisions shall have effect—

(a)

the action or legal proceedings shall not be commenced against the Authority 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 Director-General by the plaintiff or his agent;

(b)

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

42.
Transfer of Government assets and liabilities
(1)

Upon the commencement of this Act, all existing assets used in the provision of services for which the Authority has been established shall be transferred to vest in the Authority.

(2)

Subject to subsection (3), the Cabinet Secretary may, by order published in the Gazette, transfer to the Authority any property or asset belonging to the Government which appears to him to be necessary or useful to the Authority for the performance of its functions under this Act, which property or asset shall vest in the Authority by virtue of the order and without further assignment.

(3)

An order under subsection (2) may contain such incidental, consequential or supplemental provisions as the Cabinet Secretary thinks necessary or expedient.

(4)

All liabilities incurred in the provisions of services for which the Authority has been established, shall vest in the Authority without further assignment.

43.
Restriction in the execution against property of the Authority
(1)

Despite anything to the contrary in any law—

(a)

where any judgment or order has been obtained against the Authority, no execution or attachment or process in the nature thereof, shall be issued against the immovable property of the Authority or any of its vehicles, vessels, aircraft or its other operational equipment, machinery, fixtures or fittings, but the Director-General shall cause to be paid out of the revenue of the Authority such amount as may, by the judgment or order or decree, be awarded against the Authority to the person entitled thereto;

(b)

no immovable property of the Authority or any of its vessels, vehicles, aircraft or its equipment, machinery, fixture or fittings, shall be seized or taken by any person having by law, power to attach or distrain property without the previous written permission of the Director-General.

44.
Service of notice on the Director-General

Any notice, summons, warrant, process or any other document required or authorised under this Act or any other law to be served on the Authority or the Director-General may be served—

(a)

by delivering the notice or document to the Director-General or to any authorised employee;

(b)

by leaving it at the office of the Director-General; or

(c)

by sending it by registered post to the Director-General.

45.
Recovery of debts

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

PART III – SAFETY OF AIRCRAFT AND PERSONS ON BOARD
46.
Imperiling, permitting or interfering with the safety of an aircraft and persons on board
(1)

A person shall not willfully or negligently—

(a)

imperil the safety of an aircraft or any person on board, whether by interference with any member of the crew of the aircraft or by tampering with the aircraft or its equipment, or by disorderly conduct or by any other means;

(b)

cause or permit an aircraft to endanger any person or property;

(c)

interfere or tamper with an air navigation facility.

(2)

A person who contravenes the provisions of subsection (1) commits an offence and shall be liable upon conviction to a fine not exceeding two million shillings.

47.
Being under the influence of alcohol or drugs in aircraft or while on duty
(1)

A safety sensitive person shall not, when involved in aviation safety and security operations or operation of any aircraft whether in-flight or on the ground or being carried in any aircraft for the purpose of so acting be under the influence of alcohol or drugs.

(2)

An employee of the Authority shall not report on duty or be on duty when under the influence of alcohol or drugs.

(3)

Without prejudice to the provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 2007 (Cap. 245) and the Employment Act, 2011 (Cap. 226) a person who contravenes the provisions of subsections (1) and (2) commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or a suspension of his or her privileges, withdrawal or cancellation of licence or any other sanction on the certificate or licence as the Director-General may deem fit.

48.
Requirement for drug and alcohol testing system
(1)

An operator shall have an effective drug and alcohol testing system approved by the Authority.

(2)

An operator who contravenes the provisions of subsection (1) commits an offence and shall be liable upon conviction to a penalty not exceeding two million shillings or may have suspension of his or her privileges, withdrawal or cancellation of licence or any other sanction on the certificate or licence as the Director-General may deem fit.

49.
Exemption by the Authority
(1)

The Authority may upon an application by an operator, a license or a certificate holder or a holder of any authorisation, as the case may be, on aviation safety or security matters, grant exemptions on such terms and conditions as may be necessary, with respect to the application of any regulations made under this Act provided that any such exemptions granted shall not compromise aviation safety and security standards.

(2)

Exemptions granted under subsection (1) shall be in writing and shall specify the time when the aviation service provider is expected by the Authority to fully comply with the requirements of this Act and regulations made thereunder and the period within which the exemption shall cease to be effective provided that the duration of any such exemption shall not exceed six months.

(3)

Despite the provisions of this Act, and in particular those relating to exemptions, the Cabinet Secretary may, by Gazette notice, set aside, vary or revoke an exemption issued by the Authority.

50.
Exemption by the Cabinet Secretary

Despite the provisions of this Act, the Cabinet Secretary may, upon the recommendation of the Authority, by way of a Gazette notice and on such terms and conditions as may be necessary, exempt any aircraft, person, aerodrome facility or service or enterprise from the application of any regulations made under this Act, if such exemption is in the public interest and is not likely to adversely affect aviation safety and security.

PART IV – POWERS AND RESPONSIBILITIES OF THE CABINET SECRETARY
51.
Powers of the Cabinet Secretary
(1)

The Cabinet Secretary shall have powers to determine the policy framework within which the Authority shall operate and for that purpose but with due regard to the need to uphold the Authority’s autonomy the Cabinet Secretary may—

(a)

give directions of a general nature to the Board regarding the operations of the Authority;

(b)

approve alterations in the tariffs, rates, fees and any other charges levied for the services and facilities provided by the Authority;

(c)

approve any individual capital work for the purposes of the Authority, whose estimated cost exceeds prescribed limit set by the Cabinet Secretary, from time to time;

(d)

from time to time, in writing, either generally or particularly, delegate to the Director-General any of the powers, exercisable by him under any written law, but not including this present power of delegation.

(2)

The Director-General may exercise the delegated powers under subsection (1)(d) in the same manner and with the same effect as if they had been conferred on him or her directly by this section and not by delegation subject to any direction given or condition attached by the Cabinet Secretary;

(3)

Every delegation under this section shall be revocable and no such delegation shall prevent the exercise of any power by the Cabinet Secretary.

(4)

Any such delegation under this section shall, until revoked, continue in force according to its tenure, despite the fact that the Cabinet Secretary by whom it was made may have ceased to hold office.

55.
Inspection and assessment
(1)

The Cabinet Secretary shall assess and audit the performance standards of the functions of the Authority to ensure that they meet prescribed international standards at such time intervals as he or she may consider desirable.

(2)

The Cabinet Secretary may appoint audit inspectors to carry out the assessment and audit referred to in subsection (1).

(3)

The audit inspectors appointed under subsection (2) shall have unhindered access to all records, information, facilities and installations and to any explanation that may be required in the course of their duties.

(4)

The Cabinet Secretary may, on the advice of any audit inspector, take appropriate action to ensure that noted safety deficiencies are corrected and appropriate standards are maintained.

PART V – PROVISIONS RELATING TO PROHIBITIONS, OFFENCES, EXEMPTIONS, ETC.
56.
Restriction of building in declared areas
(1)

Despite the provisions of any written law, or the terms of any deed, grant, lease or license concerning the use and occupation of land, the Cabinet Secretary may, where he considers it to be necessary in the interests of the safety of air navigation, by order published in the Gazette, prohibit the erection within a declared area of any building or structure above a height specified in the order.

(2)

For the purposes of this section, “declared area” means any area adjacent to or in the vicinity of an aerodrome which the Cabinet Secretary may by notice in the Gazette declare to be a declared area.

(3)

Any person who contravenes the provisions of an order made under subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding two million shillings or to imprisonment for a term not exceeding three years, or to both.

57.
Control of structures, etc., on or near aerodromes
(1)

If the Director-General considers that provisions for civil aviation safety and security or efficiency of air navigation ought to be made—

(a)

whether by lighting or otherwise for giving aircraft warning of the presence of any building, structure, tree or natural growth or formation on or in the vicinity of an aerodrome; or

(b)

by the removal or reduction in height of any such obstruction or surface,

he or she may by order, and subject to any conditions specified in the order, require or authorise either the owner or occupier of the land on which the obstruction is situated or any person acting on behalf of the Director-General to enter upon the land and carry out such work as is necessary to enable the warning to be given or the obstruction to be reduced in height.

(2)

The Director-General shall before making an order under subsection (1), cause to be published, in such manner as he or she thinks best for informing persons concerned, notice of the proposal to make the order, and of the place where copies of the draft order may be obtained free of charge.

(3)

The Director-General shall take into consideration any representations with respect to the proposed order under subsection (1) which may, within such period not being less than two months after the publication of the notice as may be specified therein, be made to him or her by any person appearing to him or her to have an interest in any land which would be affected by the order, and at the end of that period the order may, subject to the provisions of this section, be made with such modifications, if any, of the original draft as the Director-General thinks proper.

(4)

Every order made under subsection (1) shall provide that—

(a)

no work shall be executed on any land under the order until a period of at least fourteen days has elapsed from the date of publication thereof; and

(b)

such compensation shall be paid to any person who had legally acquired the particular land or having an interest in land affected by the order for any loss or damage which that person may suffer in consequence of the order as may be agreed between that person and the Director-General, or; in default of agreement, as may be determined by an arbitrator having regard to the public interest.

(5)

Any person who —

(a)

willfully interferes with any works or things which to the knowledge of that person are executed or placed in, on or over land under an order under subsection (1); or

(b)

willfully obstructs a person in the exercise of any powers conferred by such an order or;

(c)

willfully disobeys or fails to comply with any order made under subsection (1),

commits an offence and shall be liable upon conviction to a fine not exceeding two million shillings or to imprisonment for a term not exceeding three years, or to both.

(6)

Any person aggrieved by any action, order or condition set out by the Authority under the provisions of subsection (1), may lodge an appeal to the Tribunal, and the Tribunal shall have exclusive original jurisdiction for disputes arising under this Part.

58.
Trespass
(1)

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:

Provided that a person shall not be liable to conviction under this section unless it is proved that, at the material time, notices warning trespassers of their liability under this section were posted so as to be readily seen and read by members of the public.

(2)

Any person being the owner of or for the time being having charge of, a domestic animal which trespasses in or upon a Government aerodrome or licensed aerodrome commits an offence and shall be liable on conviction,

(a)

in the case of a first offence, to a fine not exceeding fifty thousand shillings; and

(b)

in the case of a second or subsequent offence, to a fine not exceeding one hundred thousand shillings.

(3)

The application of subsections (1) and (2) is without prejudice to the provisions of the Trespass Act (Cap. 294) provided that it shall be a good defence for an offender under this provision to prove to the satisfaction of the court that he has previously been charged for the same offence under subsection (1).

59.
Nuisance and liability for damage
(1)

An action shall not lie in respect of trespass or in respect of nuisance, by reason only of the flight, or the ordinary incidents of the flight, of an aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable, so long as the provisions of any written law or convention are complied with.

(2)

Where material loss or damage is caused to any person or property on land or water by, or by a person in, or by an article or person falling from, an aircraft while in flight, taking off or landing, then, unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect or default of the owner of the aircraft:

Provided that where such material loss or damage is caused in circumstances in which—

(a)

damages are recoverable in respect of such loss or damage by virtue only of the foregoing provisions of this subsection; and

(b)

a legal liability is created in some person other than the owner to pay damages in respect of such loss or damage,

the owner shall be entitled to be indemnified by that other person against any claim in respect of such loss or damage.

(3)

Despite section 2, where an aircraft has been bona fide demised, let or hired out for any period exceeding fourteen days to any person by the owner thereof, and during such period no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of the owner, this section shall have effect as if for reference therein to the owner there were substituted a reference to the person to whom the aircraft has been so demised, let or hired out.

60.
Nuisance caused by aircraft and aerodromes
(1)

Regulations made under section 82 may provide for regulation of the conditions under which noise and vibration may be caused by aircraft and may provide that subsection (2) of this section shall apply to any aerodrome concerning which provision as to noise and vibration is so made.

(2)

An action shall not lie in respect of nuisance by reason only of the noise and vibration caused by aircraft on an aerodrome to which this subsection applies by virtue of regulations made under section 82 so long as the provisions of any such regulations are complied with.

61.
Dangerous flying
(1)

Where an aircraft is flown in such a manner as to cause unnecessary danger to any person or property on land or water, the pilot or the person in charge of the aircraft and the owner thereof, unless he or she proves that the aircraft was so flown without his or her knowledge or consent commits an offence and shall be liable upon conviction to a fine not exceeding two hundred thousand shillings or a suspension of his or her privileges, withdrawal or cancellation of licence or any other sanction on the certificate or licence as the Director-General may deem fit.

(2)

The provisions of this section shall be in addition to and not in derogation of the powers conferred upon the Cabinet Secretary under this Act or regulations made thereunder.

62.
Exemption from seizure of certain aircraft on patent claims
(1)

Any lawful entry into Kenya or any lawful transit across Kenya, with or without landing, of an aircraft to which this section applies shall not entail seizure or detention of the aircraft or any proceedings being brought against the owner or operator thereof or any other interference therewith by or on behalf of any person in Kenya on the ground that the construction, mechanism, parts, accessories or operation of the aircraft is or are an infringement of any patent, design or model.

(2)

The importation into and storage in Kenya of spare parts and spare equipment for aircraft to which this section applies and the use and installation thereof in the repair of such an aircraft shall not entail any seizure or detention of the aircraft or of the spare parts or spare equipment or any proceedings being brought against the owner or operator of the aircraft or the owner of the spare parts or spare equipment or any other interference with the aircraft by or on behalf of any person in Kenya on the ground that the spare parts or spare equipment or their installation are or is an infringement of any patent, design or model:

Provided that this subsection shall not apply in relation to any spare parts or spare equipment, which are sold or distributed in Kenya or are, exported for sale or distribution.

(3)

This section shall apply—

(a)

to an aircraft registered in any country or territory in respect of which there is in force a notice made by the Cabinet Secretary and published in the Gazette, with a view to the fulfilment of the provisions of Article 27 of the Chicago Convention, that the benefits of those provisions apply to that country or territory; and

(b)

to such other aircraft as the Cabinet Secretary may prescribe.

63.
Detention of aircraft

Regulations made under this Act may provide for the detention of an aircraft to secure compliance with this Act or any regulations made thereunder and may make such further provisions as appear to the Cabinet Secretary to be necessary or expedient for securing such detention.

64.
Jurisdiction

Any offence under this Act or regulations made under this Act and any offence committed on a Kenya aircraft shall, for the purpose of conferring jurisdiction, be deemed to have been committed in any place within Kenya where the offender may for the time being be:

Provided that if such offence is committed in or over Kenya, the offence may be tried by any court having jurisdiction in Kenya.

65.
Liability of directors and officers of body corporate

Where an offence under this Act or regulations made thereunder is committed by a body corporate or any other association of individuals, every person who at the time of the commission of the offence was a director, partner or any other similar officer of the body corporate, or acting or purporting to act in management of its affairs, commits an offence unless that person proves that—

(a)

the act or omission constituting the offence took place without his or her knowledge, consent or connivance; or

(b)

he or she exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his or her functions in that capacity and to all the circumstances.

PART VI – THE NATIONAL CIVIL AVIATION ADMINISTRATIVE REVIEW TRIBUNAL
66.
Establishment of Tribunal
(1)

There is established a tribunal to be known as the National Civil Aviation Administrative Review Tribunal which shall consist of—

(a)

a Chairperson nominated through a competitive process by the Judicial Service Commission, who shall be a person qualified for appointment as a Judge of the High Court of Kenya;

(b)

an advocate of the High Court of Kenya nominated by the Law Society of Kenya through a competitive process with knowledge, experience and professional qualifications in aviation law;

(c)

two persons to be recruited through a competitive recruitment process from the aviation industry who shall have knowledge and experience in aviation matters; and

(d)

one other person recruited competitively and who shall be a holder of such other qualifications and experience of proven ability in such other fields as the Cabinet Secretary may deem necessary.

(2)

All appointments to the Tribunal shall be done by the Cabinet Secretary by name and through a Gazette notice.

(3)

The members of the Tribunal shall be appointed at different times so that the respective expiry dates of their terms of office shall fall at different times.

(4)

In appointing members of the Tribunal, regard shall be taken to ensure that no more than two-thirds of the members of the Tribunal shall be of the same gender and that the chairperson and the vice-chairperson shall not be of the same gender.

67.
Tenure and vacation of office
(1)

A member of the Tribunal shall hold office for a term of three years but shall be eligible for re-appointment for one further term of three years.

(2)

The office of a member of the Tribunal shall become vacant—

(a)

at the expiration of three years from the date of his or her appointment;

(b)

if he or she accepts any office the holding of which, if he or her were not a member of the Tribunal, would give rise to the existence of a conflict of interest with his or her membership to the Tribunal;

(c)

if he or she is removed from membership of the Tribunal by the Cabinet Secretary upon findings of an inquiry determining his or her failure to discharge the functions of his or her office (whether arising from infirmity of body or mind or from any other lawful cause) or for misbehavior;

(d)

if he or she resigns the office of member of the Tribunal; or

(e)

upon death.

(3)

Members of the Tribunal shall be paid allowances approved by the Cabinet Secretary, in consultation with the Cabinet Secretary for the time being responsible for matters relating to finance.

68.
Secretary to the Tribunal
(1)

The Tribunal shall have a Secretary who shall be a public officer appointed by the Cabinet Secretary through an open and competitive process.

(2)

The Secretary shall hold office on the terms and conditions specified in the letter of appointment.

(3)

The Secretary shall be responsible for the day to day affairs of the Tribunal and shall be answerable to the Tribunal in performance of his or her functions.

(4)

The Secretary shall perform any other functions determined by the Tribunal.

69.
Jurisdiction of the Tribunal

The Tribunal shall have the jurisdiction to hear and determine complaints or appeals arising from—

(a)

any refusal to grant a licence, a certificate or any other authorisation by the Authority or transfer of a licence under this Act or regulations made thereunder;

(b)

the imposition of any condition, limitation or restriction on a licence under this Act or regulations made thereunder;

(c)

any revocation, suspension or variation of a licence under this Act or regulations made thereunder;

(d)

any amount of money which is required to be paid as a fee under this Act or regulations made thereunder;

(e)

the imposition of any order or direction by the Authority under this Act or regulations made thereunder;

(f)

consumer protection compliance and enforcement activities related to areas such as right violations, unfair and deceptive practices and unfair competition by air carriers and travel agents, deceptive airline advertising including fare, on-time performance, schedule, code sharing, and violations of rules concerning denied boarding compensation, ticket refunds, baggage liability requirements, flight delays and charter flights; or

(g)

any exercise of powers to make decisions, but not powers in respect of staff employment, granted to the Director-General or the Authority under this Act or regulations made thereunder.

70.
Proceedings of the Tribunal
(1)

The Tribunal shall, upon an appeal made to it in writing, within thirty days after the occurrence of the event against which a party is dissatisfied, inquire into the matter and make an award, give directions, make orders or make decisions thereon, and every award, direction, order or decision made shall be notified by the Tribunal to the parties concerned, the Authority or any relevant committee thereof, as the case may be.

(2)

The Tribunal shall sit at such times and in such places as it may appoint by Gazette Notice.

(3)

The proceedings of the Tribunal shall be open to the public save where the Tribunal, for good cause, otherwise directs.

(4)

Except as expressly provided in this Act or any regulations made thereunder, the Tribunal shall regulate its proceedings as it deems fit.

(5)

A person who is party to the proceedings before the Tribunal may appear in person or be represented by an advocate of the High Court.

71.
Powers of the Tribunal
(1)

On hearing of a complaint or an appeal, the Tribunal shall have all the powers to—

(a)

summon witnesses, take evidence on oath or affirmation and order the production of documents; or

(b)

summon expert evidence as may be necessary.

(2)

Where the Tribunal considers it desirable for the purposes of minimising expenses, to avoid delay or for any special reason, it may receive evidence by affidavit and administer interrogatories and require the person to whom the interrogatories have been made to respond.

72.
Awards of the Tribunal
(1)

The Tribunal may—

(a)

award damages;

(b)

confirm, set aside or vary the order or decision in question; or

(c)

make an order for the maintenance of the status quo of any matter or activity which is the subject of a complaint or appeal before it until the complaint or appeal is determined.

(2)

The Tribunal shall have power to award the costs of any proceedings before it and direct that the costs shall be taxed in accordance with any scale prescribed for suits in the High Court or to award a specific sum as costs.

(3)

Where the Tribunal awards costs in an appeal, it shall, on application by the person to whom the costs are awarded, issue to him or her a certificate stating the amount of the costs.

(4)

Every certificate issued under subsection (3) may be filed in the High Court by the person in whose favour the costs have been awarded and upon being so filed, shall be deemed to be a decree of the High Court and may be executed as such.

(5)

The Chief Justice may make rules governing the making of appeals and providing for the fees to be paid, the scale of costs of any such appeal, the procedure to be followed therein, and the manner of notifying the parties thereto, and until such rules are made, and subject thereto, the provisions of the Civil Procedure Act (Cap. 21) shall apply.

(6)

Upon any appeal to the Tribunal under this section, the status quo of any matter or activity, which is the subject of the appeal, shall be maintained until the appeal is determined.

(7)

All summons, notices or other documents issued under the hand of the Chairperson of the Tribunal shall be deemed to be issued by the Tribunal.

73.
Appointment of assessors

The Chairperson of the Tribunal, in consultation and with the concurrence of two other members of the Tribunal, may appoint in writing any person with special skills or knowledge on aviation issues which are the subject matter of any proceedings or inquiry before the Tribunal to act as assessors in an advisory capacity in any case where it appears to the Tribunal that such special skills or knowledge are required for proper determination of the matter.

74.
Contempt of the Tribunal
(2)

Any person who—

(a)

fails to attend the Tribunal after being summoned by the Tribunal to do so;

(b)

refuses to take oath or affirmation before the Tribunal, or being a public officer refuses to produce any article or document when lawfully required to do so by the Tribunal;

(c)

knowingly gives false evidence or information which he knows to be misleading before the Tribunal; or

(d)

at any sitting of the Tribunal—

(i) willfully insults any member or officer of the Tribunal; or
(ii) willfully interrupts the proceedings or commits any contempt of the Tribunal;
(e)

fails or neglects to comply with a decision order, direction or notice confirmed by the Tribunal,

commits an offence under this Act and shall be liable, upon conviction, to a fine not exceeding fifty thousand shillings or imprisonment to a term not exceeding three months, or to both.

75.
Quorum for Tribunal

For the purposes of hearing and determining any cause or matter under this Act, the Chairperson and two other members of the Tribunal shall form a quorum.

76.
Disclosure of interest

A member of the Tribunal who has a direct interest in any matter that is the subject of the proceedings before the Tribunal shall disclose in writing the nature of that interest and shall not participate in the deliberations of the Tribunal in respect of that matter.

77.
Appeals to the High Court
(1)

Any person aggrieved by a decision or order of the Tribunal may, within thirty days of such decision or order, appeal against such decision or order to the High Court.

(2)

A decision or order of the Tribunal shall be enforced forthwith except where an appeal has been lodged or commenced provided that the lodging or commencing of an appeal shall not on its own, operate as a stay.

(3)

Upon the hearing of an appeal under this section, the High Court may—

(a)

confirm, set aside or vary the decision or order in question;

(b)

remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the Court may deem fit to give;

(c)

exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought; or

(d)

make such other order as it may deem just, including an order as to costs of the appeal or of earlier proceedings in the matter before the Tribunal.

78.
Appeals to the Court of Appeal

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

PART VII – GENERAL PROVISIONS
79.
Protection from personal liability
(1)

The Chairperson or any other members of the Tribunal shall not be liable to be sued in a civil court for an act done or omitted to be done or ordered to be done by them in the discharge of their duty as members of the Tribunal, whether or not within the limits of their jurisdiction, provided they, at the time, in good faith, believed themselves to have jurisdiction to do or order the act complained of, and no officer of the Tribunal or other person bound to execute the lawful warrants, orders or other process of the Tribunal shall be liable to be sued in any court for the execution of a warrant, order or process which he would have been bound to execute if within the jurisdiction of the Tribunal.

80.
General penalty

A person who commits an offence under this Act for which no specific penalty is provided for shall be 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.

81.
Compounding of offences
(1)

Any employee of the Authority authorised by name in that behalf by the Director-General, or any police officer not below the rank of the inspector, may compound any offence under this Act or Regulations.

(2)

All fines or penalties levied for any offence under this Act or Regulations made under it, shall be paid to the funds of the Authority.

(3)

Where an offence is compounded in accordance with the provisions of subsection (1) and any proceedings are brought against the offender for the same offence, it shall be a good defence for such offender to prove to the satisfaction of the court that the offence with which he or she is charged has been compounded under subsection (1).

82.
Regulations
(1)

The Cabinet Secretary shall make regulations to give effect to and for the better carrying out of the objects and purposes of this Act, to provide generally for regulating air navigation, air transport, air accident investigation and carrying out and giving effect to any convention.

(2)

Without prejudice to the generality of subsection (1), the Cabinet Secretary may make regulations—

(a)

regulating, by establishing licensing authorities and a system of licensing and otherwise, the use of aircraft—

(i) for commercial transport; and
(ii) for aerial work;
(b)

providing for the registration and marking of aircraft;

(c)

prohibiting the flying of any aircraft—

(i) unless there is in force in respect of such aircraft a certificate of airworthiness or permit to fly issued or recognized in accordance with regulations made under this Act; and
(ii) except upon compliance with such conditions as to maintenance and repair as may be prescribed or specified in the certificate or permit;
(d)

requiring the flight crew, and persons, performing prescribed functions in relation to the operation or maintenance of aircraft, air navigation services, design and construction of aircraft to be the holders of licences of specified kinds;

(e)

providing for the manner and conditions of issue, validation, renewal, extension or variation of any licence required in regulations and for the form, custody, production, cancellation, suspension, endorsement and surrender of such;

(f)

providing for the conditions under which and in particular the aerodromes to or from which, aircraft entering or leaving Kenya may fly and the conditions under which aircraft may fly from one part of Kenya to another;

(g)

providing for the conditions under which passenger and cargo may be carried by air and under which aircraft may be used for other commercial, industrial or gainful purposes, and for prohibiting the carriage by air of goods of such classes as may be prescribed;

(h)

minimizing or preventing interference with the use or effectiveness of apparatus used in connection with air navigation and air navigation services and prohibiting or regulating the use of such apparatus and the display of signs and lights liable to endanger aircraft;

(j)

generally securing the safety, efficiency, and regularity of air navigation and safety of aircraft and of persons and cargo carried therein, and for preventing aircraft endangering other persons;

(k)

requiring persons engaged in or in connection with meteorology to supply meteorological information for the purpose of air navigation;

(l)

regulating the making of signals and other communications by or to aircraft and persons carried therein;

(m)

subject to any other written law, prescribing a civil air ensign for Kenya and regulating the use of any other ensign established for purposes connected with air navigation;

(n)

prohibiting aircraft from flying over such areas in Kenya as the Cabinet Secretary may by order published in the Gazette declare to be prohibited areas;

(o)

prescribing the fees to be paid in respect of the issue, validation, renewal, extension or variation of any license, or the undergoing of any examination or test required by regulations made under this Act or any other matters in respect of which it appears to the Cabinet Secretary to be expedient to charge fees;

(p)

prescribing charges or enabling some other authority to prescribe charges to be paid in respect of air navigation services, regulatory services and providing for the recovery of such charges;

(q)

providing for consumer protection and any other related matter;

(r)

exempting any aircraft or persons or classes of aircraft or persons from the provisions of any regulations made under this Act;

(s)

providing for the investigation in such manner as may be prescribed, including by means of a tribunal established for the purpose, of any accident arising out of or in the course of air navigation and occurring either in or over Kenya or occurring elsewhere to Kenya aircraft;

(t)

prohibiting access to or interference with aircraft to which an accident has occurred, and authorizing any person, so far as may be necessary for the purpose of an investigation, to have access to, remove, take measures for the preservation of, or otherwise deal with any such aircraft;

(u)

requiring any person who owns an aircraft or who carries on the business of operating aircraft for hire or reward to furnish to such authorities as may be prescribed such information relating to the aircraft and the use thereof, the crew, the mail, the passengers and the cargo carried, as may be prescribed;

(v)

providing for the licensing, inspection and regulation of aerodromes, access to places where aircraft, have landed or may land, access to aircraft factories or maintenance establishments or places where aircraft parts and engines are maintained, for the purpose of inspecting work therein carried on in relation to aircraft or parts thereof;

(w)

regulating the firing of rockets;

(x)

prohibiting or regulating in the vicinity of any aerodrome the emission or causing of smoke, soot, ash, grit, dust and any other substance whatever which obscures or may obscure visibility;

(y)

controlling and regulating the selling of charters, booking of accommodation and selling of tickets for persons or cargo on flights in any part of the world;

(z)

controlling and regulating aviation training institutions;

(aa)

the classification and use of airspace and the control and use of air routes and provisions of search and rescue facilities;

(bb)

the design, construction, repair, overhaul, maintenance, operation and use of aircraft, maintenance and repair of facilities and related equipment;

(cc)

the control and operation of the aircraft within or directly above the aerodrome for the purpose of limiting or mitigating the effect of noise;

(dd)

regulating aviation security operations and providing for security audits and inspections, tests of aircraft, aerodromes, regulated agents and any pre-flight and post flight passenger processing and screening area;

(ee)

providing for the regulation of the safe transport of dangerous goods by air; and

(ff)

providing for the establishment of air accident and incident prevention programs.

(3)

Separate or different regulations may be made for different classes of aircraft, aerodromes, persons or property and for different parts of Kenya.

(4)

Any regulations made under this section may provide in respect of any contravention thereof or non-compliance therewith for the impositions of penalties not exceeding in the case of any particular offence a fine of two million shillings or imprisonment for a term not exceeding three years, or to both.

PART VIII – REPEAL, SAVINGS AND TRANSITIONAL PROVISIONS
83.
Repeal of Cap. 394
(1)

The Civil Aviation Act (Cap. 394) is repealed.

(2)

Despite subsection (1) —

(a)

any proceedings taken against or by the former Authority or pending against it or any other person immediately before the commencement of this Act may be continued by or against the Authority as if instituted under this Act:

Provided that criminal proceedings shall be regarded as pending if the person concerned had pleaded to the charge in question;

(b)

any administrative investigation or inquiry instituted in terms of the repealed Act which was pending before the commencement of this Act shall be continued or disposed of as if instituted under this Act;

(c)

all disciplinary proceedings which immediately before the commencement of this Act were pending shall be continued or concluded as if instituted under this Act;

(d)

all appeal processes, which immediately before the commencement of this Act were pending, shall proceed as if instituted under this Act;

(e)

the persons employed by the former Authority shall be transferred to the Authority established under this Act; and

(f)

a contract subsisting between the former Authority and another person before the commencement of this Act shall subsist between the Authority established under this Act and that person.

FIRST SCHEDULE
[Section 17(3).]
PROVISIONS RELATING TO THE MEETINGS OF THE BOARD OF DIRECTORS
1.

The Chairperson may call a special meeting of the Board of Directors at any time, where he or she considers it expedient for the transaction of the business of the Board of Directors.

2.

Other than a special meeting, or unless three quarters of members agree, at least fourteen days’ written notice of every meeting of the Board of Directors shall be given to every member of the Board of Directors by the Secretary.

3.

The quorum at a meeting of the Board of the Directors shall be half of the members or a greater number determined by the Board of Directors, in respect of an important matter.

4.

The Chairperson shall preside at the meetings of the Board of Directors and in his or her absence the vice-chairperson, and in the absence of a vice-chairperson, a member of the Board of Directors elected by the members present from among their number, shall preside.

5.

The matters of the Board of Directors shall be decided by a majority of the members present and voting and in the event of equality of votes, the person presiding shall have a casting vote.

6.

The proceedings of the Board of Directors shall not be invalidated by reason of a vacancy among the members or a defect in the appointment or qualification of a member.

7.

At the first meeting of the Board of Directors, the members shall elect a vice-chairperson, not being an ex officio member, from among its members.

8.

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

SECOND SCHEDULE
[Section 39(3).]
INFRINGEMENT NOTICES
1.

The purpose of this Schedule is to create a system of infringement notices for offences under the Act and the regulations made thereunder as an alternative to prosecution.

2.

This Schedule does not—

(a)

affect the liability of a person to be prosecuted for an offence if an infringement notice is not issued to the person for the offence;

(b)

prevent the issue of two or more infringement notices to a person for an offence;

(c)

affect the liability of a person to be prosecuted for an offence if the person does not comply with an infringement notice for the offence; or

(d)

limit or otherwise affect the penalty that may be imposed by a court on a person convicted of an offence.

3.
Fine payable

The fine for an offence payable under an infringement notice issued to the person for the offence is one-fifth of the maximum fine that a court could impose on the person for the offence.

4.
Issue of infringement notices
(1)

The Authority may issue infringement notice offences under this Act and regulations made thereunder from time to time.

(2)

Where an authorised person has reason to believe that a person has committed an infringement notice offence, the authorised person may issue a notice, called an infringement notice, to the person for the offence.

(3)

An authorised person who knowingly improperly issues an infringement notice, or who issues an infringement notice for any purpose other than to ensure aviation security and safety , commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year, or both.

5.
Contents of infringement notice
(1)

An infringement notice shall —

(a)

bear a serial number;

(b)

state the name of the authorised person who issued it;

(c)

state its date of issue;

(d)

state the full name, or the surname and initials, and the address, of the person to whom it is issued;

(e)

give brief details of the offence of which it is issued, including —

(i) the date and time of the offence;
(ii) where the offence happened;
(iii) the provision of these Regulations contravened;
(f)

state the penalty for the offence payable under the notice;

(g)

state where and how that penalty can be paid, including, if the penalty can be paid by positing the payment, the place to which it should be posted;

(h)

state that if the person to whom it is issued (the recipient) pays the penalty within twenty-eight days after the day on which the notice is served, or any longer time allowed in writing by an authorised person, then, unless the infringement notice is subsequently withdrawn and any penalty paid refunded —

(i) any liability of the recipient for the offence will be discharged;
(ii) the recipient will not be prosecuted in a court for the offence;
(iii) the recipient will not be taken to have been convicted of the offence;
(i)

state the greatest penalty that a court could impose on the recipient for the offence;

(j)

state that if the recipient is prosecuted in court and found guilty of the offence, the recipient may be convicted of the offence and ordered to pay a penalty and costs, and be subject to any other order that the court makes;

(k)

state how and to whom the recipient can apply to be allowed more time to pay the penalty; and

(l)

be signed by the authorised person who issued it.

(2)

An infringement notice may contain any other information that the authorised person who issues it deems necessary.

6.
Service of infringement notice
(1)

An infringement notice shall be served on the person to whom it is issued.

(2)

An infringement notice may be served on individual —

(a)

by giving it to the individual;

(b)

by leaving it at, or by sending it by post, telex, fax or similar facility to, the address of the place of residence or business (the relevant place) of the individual last known to the authorised person who issues it;

(c)

by giving it, at the relevant place, to someone who —

(i) lives or is employed, or apparently lives or is employed, there; and
(ii) is, or the authorised person who issued it has reason to believe is, over eighteen years of age.
(3)

An infringement notice may be served on a corporation —

(a)

by leaving it at, or by sending it by post, telex, fax or similar facility to the address of the head office, a registered office or a principal office of the corporation;

(b)

by giving it, at an office mentioned in subparagraph (a), to someone who is, or the authorised person who issued it has reason to believe is, an officer or employee of the corporation.

7.
Time for payment of fine

The fine stated in an infringement notice shall be paid —

(a)

within twenty-eight days after the day on which the notice is served on the person to whom it is issued;

(b)

if the person applied for a further period of time in which to pay the penalty, and that application is granted, within the further period allowed;

(c)

if the person applies a further period of time in which to pay the penalty, and the application is refused, within seven days after the notice of the refusal is served on the person;

(d)

if the person applies for the notice to be withdrawn, and the application is refused, within twenty-eight days after the notice of the refusal is served on the person.

8.
Extension of time to pay fine
(1)

The person to whom an infringement notice is issued may apply, in writing, to the Authority for a further period of up to twenty-eight days in which to pay the fine stated in the notice.

(2)

Within fourteen days after receiving the application, the Authority shall —

(a)

grant or refuse a further period not longer than the period sought; and

(b)

notify the recipient in writing of the decision and, if the decision is a refusal, the reasons for it.

(3)

Notice of the decision may be served on the recipient in any way in which the infringement notice could have been served on the recipient.

9.
Effect of payment of fine
(1)

Where an infringement notice is not withdrawn, and the person to whom it is issued for an offence pays the fine stated in the notice—

(a)

any liability of the person for the offence is discharged;

(b)

the person may not be prosecuted in a court of law for the offence;

(c)

the person is not taken to have been convicted of the offence.

(2)

Where two or more infringement notices are issued to a person for the same offence, the person’s liability to be prosecuted for the offence ceases if the person pays the fine stated in any of the notices.

10.
Withdrawal of infringement notice
(1)

A person may apply in writing to the Authority, before the end of twenty eight days after receiving an infringement notice, for the infringement notice to be withdrawn.

(2)

The Authority shall, within fourteen days after receiving the application—

(a)

withdraw or refuse to withdraw the notice;

(b)

notify the person in writing of the decision and, if the decision is a refusal, the reasons for the decision.

(3)

Where the Authority fails to approve the withdrawal of the notice within the period allowed by paragraph (2), the Authority shall be deemed to have refused to approved the withdrawal of the notice.

(4)

The Authority shall, before withdrawing or refusing to withdraw a notice, consider—

(a)

whether the person has been convicted previously of an offence against these Regulations;

(b)

the circumstances of the offences stated in the notice;

(c)

whether the person has previously paid a penalty under an infringement notice issued to the person for an offence of the same type as the offence mentioned in the notice; and

(d)

any other relevant matter.

(5)

The Authority may withdraw an infringement notice without an application having been made.

11.
Notice of withdrawal of infringement notice
(1)

Notice of the withdrawal of an infringement notice may be served on a person in any way in which the infringement notice could have been served on the person.

(2)

A notice withdrawing an infringement notice served on a person for an offence —

(a)

shall include the following information —

(i) the full name, or surname and initials, and address of the person upon whom it was issued;
(ii) the number of the infringement notice;
(iii) the date of issue of the infringement notice;
(b)

shall state that the notice is withdrawn; and

(c)

if the Authority intends to prosecute the person in court for the offence, shall state that the person may be prosecuted in a court for the offence.

12.
Refund of fine

Where an infringement notice is withdrawn after the fine stated in it has been paid, the Authority shall refund the fine to the person who paid it, within sixty days after the withdrawal of the notice.