Act No: CAP. 472
Act Title: CUSTOMS AND EXCISE

An Act of Parliament to provide for the management and administration of the customs, for the assessment, charge and collection of customs and excise duties and for matters relating thereto and connected therewith

[Act No. 13 of 1978, Act No. 6 of 1979, Act No. 13 of 1979, Act No. 10 of 1980, Act No. 12 of 1980, L.N. 18/1981, Act No. 6 of 1981, L.N. 154/1981, Act No. 1 of 1982, Act No. 9 of 1982, Act No. 14 of 1982, Act No. 17 of 1982, Act No. 8 of 1983, Act No. 13 of 1984, Act No. 19 of 1984, L.N. 162/1984, Act No. 8 of 1985, L.N. 152/1985, Act No. 19 of 1985, L.N. 11/1986, Act No. 10 of 1986, Act No. 10 of 1987, Act No. 22 of 1987, Act No. 10 of 1988, Act No. 2 of 1989, Act No. 8 of 1989, Act No. 10 of 1990, Act No. 12 of 1990, L.N. 433/1990, L.N. 19/1991, Corr. No. 16/1991, Act No. 8 of 1991, Act No. 3 of 1992, Act No. 9 of 1992, L.N. 7/1993, L.N. 105/1993, L.N. 286/1993, L.N. 303/1993, Act No. 4 of 1993, L.N. 25/1994, L.N. 41/1994, L.N. 64/1994, L.N. 122/1994, L.N. 334/1994, L.N. 349/1994, Act No. 6 of 1994, L.N. 377/1994, L.N. 378/1994, L.N. 383/1994, L.N. 386/1994, L.N. 490/1994, Act No. 8 of 1995, Act No. 13 of 1995, L.N. 333/1995, L.N. 388/1995, Act No. 8 of 1996, L.N. 2/1996, L.N. 3/1996, L.N. 20/1996, L.N. 117/1996, L.N. 315/1996, L.N. 6/1997, L.N. 15/1997, Act No. 2 of 1997, Act No. 8 of 1997, L.N. 15/1997, L.N. 43/1997, L.N. 114/1997, L.N. 115/1997, L.N. 118/1997, L.N. 119/1997, L.N. 123/1997, L.N. 144/1997, L.N. 159/1997, L.N. 160/1997, L.N. 172/1997, L.N. 173/1997, L.N. 174/1997, L.N. 347/1997, L.N. 549/1997, Act No. 5 of 1998, L.N. 12/1998, L.N. 26/1998, L.N. 27/1998, L.N. 39/1998, L.N. 45/1998, L.N. 58/1998, L.N. 119/1998, L.N. 122/1998, L.N. 164/1998, L.N. 12/1999; L.N. 27/1999, L.N. 33/1999, L.N. 48/1999, L.N. 108/1999, L.N. 109/1999, L.N. 135/1999, L.N. 136/1999, L.N. 166/1999, L.N. 184/1999, Act No. 4 of 1999, L.N. 65/2000, L.N. 80/2000, L.N. 116/2000, Act No. 9 of 2000, L.N. 65/2001, L.N. 135/2001, L.N. 136/2001, L.N. 137/2001, Act No. 6 of 2001, L.N. 12/2002, L.N. 14/2002, L.N. 26/2002, L.N. 27/2002, L.N. 112/2002, Act No. 7 of 2002, Act No. 15 of 2003, L.N. 90/2004, L.N. 121/2004, Act No. 4 of 2004, Act No. 6 of 2005, Act No. 10 of 2006, Act No. 9 of 2007, Act No. 8 of 2008, Act No. 8 of 2009, Act No. 10 of 2010, L.N. 38/2011, Act No. 4 of 2012, Act No. 10 of 2013, Act No. 38 of 2013.]

[ Date of commencement: 13th October, 1978. ]
[ Date of assent: 25th September, 1978. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Customs and Excise Act.

2.
Interpretation
(1)

In this Act, except where the context otherwise requires—

“agent” in relation to an aircraft, vessel or vehicle includes a person who notifies the proper officer in writing that he intends to act as the agent and who, or on whose behalf a person authorized by him, signs any document required or authorized by this Act to be signed by an agent:

Provided that the owner of an aircraft, vessel or vehicle, if resident or represented in Kenya, shall either himself or through his representative be deemed to be the agent for all the purposes of this Act if no agent is appointed;

“aircraft” includes every description of craft used in aerial navigation;

“approved” means approved by the Commissioner;

“approved place of loading” and “approved place of unloading” mean a quay, jetty, wharf or other place, including any part of a port or customs airport, appointed by the Commissioner by notice in accordance with section 9 to be a place where goods may be loaded or unloaded;

“beer” includes ale, porter and any other description of beer and any liquor, including beer substitute, which is produced as result of the alcoholic fermentation of an extract derived from barley malt, a cereal grain, starch or saccharine matter and hops or hops substitute, in potable water with other suitable ingredients and which contains more than two per centum of proof spirit but does not include—

(a)

any beer made or brewed by any person and which is not offered for, or intended to be offered for sale;

(b)

any kind of beer which the Minister may, by order in the Gazette exclude from the provisions of this Act;

“boarding station” means a place appointed by the Commissioner by notice in the Gazette to be a place for aircraft or vessels arriving at or departing from a port or place to bring to for the boarding by or the disembarkation of officers;

“bonded factory” means the premises licensed by the Commissioner for the manufacture of goods for export under bond;

“bonded warehouse” means a warehouse licensed by the Commissioner under section 51 for the deposit of dutiable goods on which duty has not been paid and which have been entered to be warehoused and includes a duty-free shop;

“brewer” means the holder of a valid licence to brew beer under section 91;

“buying commission” means fees paid or payable by an importer to his agent for the services of representing the importer in the purchase of the goods being appraised;

“by authority” means by the authority of the Commissioner or of any officer doing his duty in the matter in relation to which the expression is used;

“cargo” includes all goods imported, exported or carried coastwise in an aircraft, vessel or vehicle other than goods which are required as stores for consumption or use by or for that aircraft, vessel or vehicle, its crew and passengers, and the bona fide personal baggage of the crew and passengers;

“carriage coastwise” has the meaning assigned to it by section 81;

“cigar” means a cigar, cheroot or cigarillo prepared from tobacco;

“cigarette” means a cigarette prepared from tobacco and includes any form of tip and the paper thereof;

“Commissioner” means—

(a)

the Commissioner-General appointed under section 11(1) of the Kenya Revenue Authority Act (Cap. 469); or

(b)

with respect to powers or functions that have been delegated under section 11(4) of the Kenya Revenue Authority Act to another Commissioner, that other Commissioner;

“compounded spirits” means spirits which have been distinctly altered in character by redistillation with, or by the addition of, flavouring matter or other materials or ingredients; and “to compound” means to prepare compounded spirits;

“computed value” in relation to any goods, means the value of such goods determined in accordance with Method 5 set out in the Seventh Schedule;

“concessional loan” means a loan with at least twenty-five per cent grant element;

“country of export”, in relation to any goods, means the country from which such goods are shipped to Kenya;

“country of importation” means any country or customs territory into which goods are imported;

“customs” or “the customs” means the Customs and Excise Department;

“customs airport” means an airport appointed by the Commissioner by notice in accordance with section 9 to be an airport for the purposes of this Act;

“customs area” means a place appointed by the Commissioner by notice in accordance with section 9 for the deposit of goods subject to customs control;

“customs and excise revenue” means amount collectable by the customs in accordance with the provisions of this Act;

“customs control” means any measures taken by the Commissioner in relation to the goods specified in section 12 to ensure compliance with the provisions of this Act;

“customs territory” means all parts of Kenya in which this Act applies in full, but does not include an export processing zone;

“customs warehouse” means a place approved by the Commissioner for the deposit of unentered, unexamined, detained or seized goods for the security thereof or pending payment of the duties due thereon;

“denaturer” means a person holding a licence under section 91 to denature spirits; and “to denature” means to render unfit for human consumption;

“dissolving” means a dissolving of materials for making a priming or colouring solution;

“distiller” means a person holding a licence to manufacture spirits under section 91 by distillation of a fermented liquor or by any other process; and “distillery” means his factory;

“distillation period” means the period prescribed by regulations for the purpose of taking account of feints and spirits produced;

“distiller’s warehouse” means a place of security provided by a distiller and approved by the Commissioner under section 100;

“domestic”, in relation to an article, means an article normally used in the household;

“drawback” means a refund of all or part of any import duty paid in respect of goods exported or used in a manner or for a purpose prescribed as a condition for granting drawbacks;

“dumping duty” means a duty imposed by an order made under section 125;

“dutiable goods” means goods chargeable with duty under this Act;

“duty” includes excise duty, import duty, export duty, levy, imposition, tax or surtax imposed on goods, services and gaming takings under this Act;

“duty free shop” means a room or premises situated in a port and licensed by the Commissioner for the deposit of dutiable goods on which duty has not been paid and which have been entered to be warehoused for use as ship stores or for sale to passengers departing to places outside Kenya.

“excisable goods” means goods manufactured in Kenya or imported into Kenya on which an excise duty is imposed under this Act;

“excisable value” means ex-factory selling price or the value determined in accordance with section 127C;

“excise duty” means a duty of excise imposed on goods manufactured in Kenya or imported into Kenya and specified in the Fifth Schedule;

“excise stamp” means an excise stamp prescribed by the Commissioner under section 116B;

“ex-factory selling price” means the price at which goods are sold from a factory exclusive of value added tax and excise duty;

“export” means to take or cause to be taken out of the customs territory or into an export processing zone;

“factory” means any premises on which a person is licensed to—

(a)

manufacture and store excisable goods;

(b)

use excisable goods in other manufactures;

“feints” means spirits conveyed into a receiver in a distillery entered under this Act as a feints receiver;

“foreign port” means a place beyond the boundaries of Kenya;

“generally accepted accounting principles” means the broad guidelines or detailed procedures of accounting for the time being generally accepted in a country;

“goods” includes all kinds of articles, wares, merchandise and livestock, and, where any such goods are sold under this Act, the proceeds of sale;

“goods of the same class or kind” means goods which fall within a range of goods produced by a particular industry or industrial sector and includes identical or similar goods;

“goods under drawback” means goods in relation to which a claim for drawback has been or is to be made under section 151;

“Government warehouse” means a place provided by the Government for the deposit of dutiable goods on which duty has not been paid and which have been entered to be warehoused;

“gravity” in relation to a liquid means the ratio of the weight of a volume of the liquid to the weight of an equal volume of distilled water, the volume of each liquid being computed as at 15.55 degrees centigrade; and where the gravity of a liquid is expressed as a number of degrees that number shall be such ratio multiplied by one thousand;

“identical goods” means goods which—

(i)

are the same in all respects, including physical characteristics, quality, and reputation with the goods being appraised, minor differences in appearance notwithstanding;

(ii)

are produced in the same country as the goods being appraised; and

(iii)

were produced by or on behalf of the person by or on behalf of whom the goods appraised were produced,

but does not include imported goods where engineering, development work, design work, plans or sketches undertaken in Kenya were supplied, directly or indirectly, by the purchaser of those goods free of charge or at a reduced cost for use in the production and sale for export of those goods;

“information technology” means any equipment or software for use in storing, retrieving, processing or disseminating information;

“import” means to bring or cause to be brought into the customs territory from a foreign country or from an export processing zone;;

“import duty” means duty imposed on goods imported into Kenya and specified in the First Schedule;

“industrial”, in relation to an article, means that the article has been shown to the satisfaction of the Commissioner to be made for use solely or principally as industrial apparatus, plant or machinery, or as a specialized part thereof;

“licence” means a valid licence issued under this Act;

“low wines” means spirits of the first extraction conveyed into a receiver in a distillery entered under this Act as a low wines receiver;

“manufacture” includes—

(a)

the production of excisable goods;

(b)

any intermediate or uncompleted process in the production of excisable goods;

(c)

the distilling, rectifying, compounding or denaturing of spirits;

(d)

the production of goods for export under bond;

(e)

the processing or production of goods for export in an export processing zone.

“manufactured tobacco” means tobacco made up—

(a)

ready for smoking in a pipe, other than tobacco made up by the grower without the use of machinery;

(b)

ready for use in the making of cigarettes or cigars; or

(c)

in the form of cake, plug, roll or stick;

“manufacture under bond” means the production of goods under a licence issued under section 58A;

“master” includes a person for the time being having or taking charge or command of an aircraft or vessel;

“materials” means goods from which excisable goods are capable of being manufactured and any residue from a process of manufacture;

“methylated spirits” means spirits denatured in accordance with a formula prescribed by regulations for methylated spirits;

“Minister” means the Cabinet Secretary for the time being responsible for matters relating to finance;

“name” includes the registered mark of an aircraft, vessel or vehicle;

“night” means the period between six o’clock in the afternoon of any day and six o’clock in the forenoon of the following day;

“officer” includes any person, other than a labourer, employed in the service of the customs or for the time being performing duties in relation to the customs;

“official aid funded project” means a project funded by means of a grant or concessional loan in accordance with an agreement between the Government and any foreign government, agency, institution, foundation, organisation or any other aid agency;

“opaque beer” means a potable beer liquor derived from the fermentation of a mash of cereal grain or vegetable or grain or vegetable products with or without the addition of sucrose or honey and which contains not less than two and a half per centum of absolute alcohol by volume;

original gravity”, in relation to a liquid, means its gravity before fermentation;

“owner” in respect of any goods, aircraft, vessel, vehicle, plant or other thing, includes a person (other than an officer acting in his official capacity) being or holding himself out to be the owner, manufacturer, licensee, importer, exporter, consignee, agent, or the person in possession of, or beneficially interested in, or having control of, or power of disposition over, the goods, aircraft, vessel, vehicle, plant or other thing;

“package” includes every means by which goods for conveyance may be cased, covered, enclosed, contained or packed;

“plant” includes utensils, presses, machinery, mills, implements, appliances and fittings;

“point of sale” in respect of excisable goods manufactured in Kenya, means the point of delivery of the goods from the excise stockroom in an open market sale between buyer and seller independent of each other;

“port” means a place, whether on the coast or elsewhere, appointed by the Commissioner by notice in accordance with section 9, subject to any limitations specified in the notice, to be a port for the purpose of this Act; and in relation to aircraft, a port means a customs airport;

“postal article” includes any letter, postcard, newspaper, book, document, pamphlet, pattern, sample packet, small packet, parcel, package or other article whatsoever in course of transmission by post;

“Post Office” means the Postal Corporation of Kenya established under the Postal Corporation of Kenya Act, 1998;

“premises” includes any building, house, room or place;

“price actually paid or payable” means the total payments made or to be made by a buyer to or for the benefit of the seller or imported goods which are the subject of a customs valuation;

“prohibited goods” means goods the importation, exportation, or carriage coastwise of which is prohibited under the provisions of this Act or any other written law;

“proper officer” means an officer whose right or duty it is to require the performance of, or to perform, the act referred to;

“rebate” means a reduction or diminishment of charge for duty;

“rectifier” means a person holding a licence to rectify spirits under section 91; and “to rectify” means to redistill spirits removed from a spirits receiver for the purpose of purifying or adding flavour;

“rectifier’s warehouse” means a place of security provided by a rectifier and approved by the Commissioner under section 100;

“refinery” means a bonded warehouse licensed by the Commissioner for the treatment of oils;

“refund” means the return or repayment of duties already collected;

“regional market” means the countries with which Kenya shares a common border, and includes Rwanda, Burundi and the Congo;

“regulations” includes rules and any subsidiary legislation made under this Act;

“remission” means the waiver of duty or refrainment from exacting of duty;

“restricted goods” means goods the importation, exportation or carriage coastwise of which is prohibited, save in accordance with conditions regulating it, and goods the importation, exportation or carriage coastwise of which is in any way regulated by or under this Act or any other written law;

“services” means—

(a)

any supply by way of business that is not a supply of goods or money; or

(b)

anything which is not a supply of goods but is done for a consideration (including, if so done, the granting, assignment or surrender of any right);

“similar goods” means goods which have similar—

(a)

characteristics;

(b)

components;

(c)

quality and reputation,

which make them commercially interchangeable in the performance of functions;

“smuggling” means the importation, exportation or carriage coastwise, or the removal from or into Kenya of goods with intent to defraud the customs, or to evade any prohibition of, restriction, on regulation or condition as to, importation, exportation, carriage coastwise or removal, of goods;

“specially denatured spirits” means spirits denatured in accordance with a formula prescribed by regulations for specially denatured spirits;

“spirits” means spirits of any description and includes all liquor mixed with spirits and all mixtures and compounds or preparations made with spirits, but does not include denatured spirits;

“still” includes any part of a still;

“sufferance wharf” means a place, other than an approved place of loading or unloading, at which the Commissioner may, subject to such conditions as he may either generally or in any particular case impose, allow goods to be loaded or unloaded;

“sufficient information” in relation to the determination of any amount, difference or adjustment, means objective and quantifiable information that establishes the accuracy of the amount, difference or adjustment;

“sugar”, for the purpose of the Fifth Schedule, means sugar of any description, finished or unfinished, and any product of any sugar manufacturing operation containing saccharine matter, but does not include glucose, jaggery, molasses, sugar candy or exhausted sugarcane pulp, nor

does it include brown sugar made by a person, and in plant and in premises, approved by the Minister, in the manufacture of which neither vacuum pan nor a vacuum evaporator has been employed;

“suspended duty” means a duty specified in the Second Schedule;

“tariff description” means the description of goods in the third column of the First Schedule;

“tax computerized system” means any software or hardware for use in storing, retrieving, processing or disseminating information relating to excise duty;

“the price paid or payable”, in relation to the sale of goods for export to Kenya, means the aggregate of all payments made or to be made, directly or indirectly, by the purchaser to or for the benefit of the vendor;

“tobacco licensee” means a person licensed to manufacture tobacco, cigarettes and cigars;

“tonne” means a metric tonne of 1,000 kilograms;

“tons register” means the tons of a ship’s net tonnage ascertained and registered according to the tonnage regulations of the Merchant Shipping Act (Cap. 389), or in the case of a ship which is not registered under that Act, ascertained as if it were so registered;

“transaction value” means the price paid or payable for imported goods, as determined in accordance with the Seventh Schedule;

“transhipment” means the movement, either directly or indirectly, of goods from an aircraft, vessel or arriving in Kenya from a foreign place, to an aircraft, vessel or vehicle departing to a foreign destination;

“transaction value” means the price paid or payable for imported goods, as determined in accordance with the seventh schedule;

“transit” means the movement of goods imported from a foreign place through Kenya to a foreign destination;

“transit shed” means a building appointed by the Commissioner by notice in accordance with section 9 for the deposit of goods subject to customs control;

“Tribunal” means the Appeals Tribunal established under section 127E;

“uncustomed goods” includes dutiable goods on which the full duties due have not been paid, and any goods, whether dutiable or not, which are imported, exported, carried coastwise or in any way dealt with contrary to the provisions of this Act;

“utensil” includes a container, tank, storage bin, receptacle or vat;

“variable import duty” means import duty imposed on goods imported into Kenya and specified in the Eleventh Schedule;

“vehicle” includes every description of conveyance for the transport by land of human beings or goods;

“vessel” includes every description of conveyance for the transport by water of human beings or goods;

“voyage” includes flight by aircraft;

“warehoused” means deposited in a Government or bonded warehouse with the authority of the person in charge of the warehouse;

“warehouse keeper” means the holder of a licence in respect of a bonded warehouse;

“wash” means the fermented liquor from which spirits are produced by distillation;

“wharf owner” includes an owner or occupier of an approved place of loading or unloading or of a sufferance wharf;

“wine” means a liquor of a strength not exceeding 50 degrees of proof which is made from fruit and sugar or from fruit and sugar mixed with any other material and which has undergone a process of fermentation and includes mead;

“worts” means the liquid obtained by dissolving sugar or molasses in water or by extracting the soluble portion of malt or corn in the process of brewing and any primary or colouring solution.

(2)

For the purposes of this Act—

(a)

goods shall be deemed to be entered when the entry, made and signed by the owner in the prescribed manner, is accepted and signed by the proper officer and when any duty due or deposit required under this Act in respect of the goods has been paid or security has been given for compliance with this Act;

(b)

goods shall be deemed to be entered for home use when they have been declared for use in Kenya, other than temporary use, and the provisions of paragraph (a) have been fulfilled;

(c)

the time of importation of goods shall be deemed to be—

(i) in the case of goods for home use the time at which the goods come within the boundaries of the customs territory; and
(ii) in the Case of export processing zone import, the time at which the goods come within the approved entry into an export processing zone;
(d)

the time of exportation of goods shall be deemed to be—

(i) in the case of goods originating from the customs territory, at the time at which the carrying aircraft or vessel departs from its final position, anchorage or berth at the port or place within the customs territory at which the goods at shipped for exportation, or at the time when they are introduced into an export processing zone;
(ii) in the case of goods exported overland and originating from the customs territory or from an export processing zone, the time at which the goods pass across the boundaries of Kenya;
(iii) in the case of export processing zone exports which an destined to the customs territory, at the time they an removed through the approved exit out of the zone;
(iv) at the time at which the carrying aircraft or vessel departs from its final position, anchorage or berth at the port or place within the customs territory at which such export processing none exports are shipped for exportation;
(e)

where an aircraft, vessel or vehicle arrives within Kenya from a foreign port or place, then, in relation to each port or place within Kenya at which it may arrive, it shall be deemed to have arrived from a foreign port or place;

(f)

where an aircraft, vessel or vehicle proposes to depart from Kenya to a foreign port or place, then, in relation to each port or place within Kenya from which it may depart, it shall be deemed to be departing therefrom to a foreign port or place;

(g)

a reference to Kenya, shall be deemed to include a reference to an installation within the meaning of the Continental Shelf Act (Cap. 312), whether or not situated within the territorial waters;

(h)

a reference to producing goods shall include a reference to growing or manufacturing goods and to the application of any process in the course of producing goods;

(i)

every act, matter or thing required or authorized by this Act to be done or performed by, with, to or before the Commissioner shall be deemed to be so done or performed if done or performed by, with, to or before an officer appointed by the Commissioner for that purpose;

(j)

every person employed on a duty or service relating to the customs by order, or with the concurrence of the Commissioner shall be deemed to be the proper officer for that duty or service; and every act required by law at any time to be done by, with, to or before a particular officer nominated for that purpose shall be deemed to be so done if done by, with, to or before any person appointed by the Commissioner to act for that particular officer;

(k)

customs warehouse rent payable in respect of goods stored or deposited in a customs warehouse shall be deemed to be duty;

(l)

over and above the import duties chargeable in accordance with the First Schedule—

(i) an additional duty of twenty per centum shall be payable in respect of all used motor vehicles (excluding agricultural tractors of Tariff Numbers 8701.10.00, 8701.30.00 and 8701.90.00) which are imported: Provided that where the vehicle (excluding a motor-cycle)—
(ii) an additional duty of two and a half per centum ad valorem, or five per centum of the specific rate specified in the First Schedule, whichever is the higher, or such other additional duty as the Minister may, by notice in the Gazette, specify, shall be payable in respect of all goods entered for home use from an export processing zone;
(iii) an additional duty of ten per centum shall be payable in respect of temporary imports when entered for home use;
(iv) an additional duty of ten per centum shall be payable in respect of transit goods when entered for home use;
(ll)

goods shall be deemed to be unassembled if imported in a completely knocked down form by an approved assembler of such goods appointed by the Commissioner by notice in the Gazette:

Provided that the Commissioner may, by notice in the Gazette, specify goods which shall, notwithstanding the provisions of this paragraph, not be deemed to be unassembled;

(m)

subject to paragraph (ll) radios and radio-cassette players or recorders shall be deemed to be unassembled when imported in completely knocked down form and where, inter alia

(i) the diodes, resistors, transistors and similar components are unmounted;
(ii) the printed circuit boards are unmounted;
(iii) the speaker or speakers are unmounted;
(iv) the knobs are unmounted;
(v) the casings are unassembled; and
(vi) the aerial is unmounted.
(n)

where parts for the assembly of motor vehicles in a bonded warehouse are imported separately by an approved motor vehicle assembler, the rate of duty applicable shall, notwithstanding any other provision of this Act, be that applicable to unassembled motor vehicles:

Provided that such parts shall be imported in such condition as may be prescribed by the Commissioner.

(3)

The interpretation of the First Schedule shall be governed by the following principles—

(a)

the titles of sections, chapters and sub-chapters are provided for ease of reference only; and for legal purposes classification shall be determined according to the terms of the heading and tariff descriptions and any relative section or chapter notes and, where the headings or notes do not otherwise require, according to the following provisions of this subsection;

(b)
(i) a reference in a tariff description to an article shall be taken to include a reference to that article whether incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article; and such a reference shall also be deemed to include a reference to that article complete or finished, or falling to be classified as complete or finished by virtue of this subsection, whether imported, unassembled or disassembled;
(ii) where parts of an article are separately imported the Commissioner may apply subparagraph (i) to those parts;
(iii) a reference in a tariff description to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances, and any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance; however classification of goods consisting of more than one material or substance shall be according to paragraph (c);
(c)

where, by application of paragraph (b)(iii) or for any other reason, goods are prima facie classifiable under two or more tariff descriptions, classification shall be effected as follows—

(i) the tariff description which provides the most specific description shall be preferred to tariff descriptions providing a more general description; however where two or more tariff descriptions each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale those tariff descriptions are to be regarded as equally specific in relation to those goods even if one of them gives a more complete or precise description of the goods;
(ii) mixtures and composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to subparagraph (i), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;
(iii) where goods cannot be classified by subparagraph (i) or (ii) they shall be classified under the heading which occurs last among those which equally merit consideration;
(d)

where goods cannot be classified in the manner provided by paragraph (a), (b) or (c) they shall be classified under the tariff description appropriate to the goods to which they are most akin;

(e)
(i) camera cases, instrument cases, gun cases drawing instrument cases, necklace cases and similar containers specially shaped or fitted to contain a specific article, suitable for long-term use and imported with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith but this paragraph does not apply to containers which give the whole its essential character;
(ii) subject to the provisions of subparagraph (i), packing materials for goods therein shall be classified with the goods if they are of a kind normally used for packing such goods but this subparagraph is not applicable when such packing materials or packing containers are clearly suitable for repetitive use;
(f)

for legal purposes, the classification of goods in the tariff description of a heading shall be determined according to the terms of those tariff descriptions and any chapter notes relative to those tariff descriptions and, mutatis mutandis, according to this subsection, on the understanding that only the tariff descriptions at the same level are comparable, and for the purposes of this subsection the relative section and chapter notes also apply, unless the context otherwise requires;

(g)

the classification of goods within a tariff description shall have regard to the wording of the heading;

(h)

where in any tariff description parts of articles are classified with those articles, mention of any of the articles in a tariff description of that heading shall be deemed to include a mention of parts of those articles, except in so far as the contrary intention appears from the wording of the tariff description;

(i)

where goods are classified according to their use either by way of general description of their use or by reference to the use intended on importation or clearance through customs, the conditions of use shall not be taken to be fulfilled unless at the time of importation or clearance the intended direct use is proved to the satisfaction of the Commissioner;

(j)

where an alternative rate of duty is shown, the rate chargeable is that which results in the higher duty charge.

(4)

For the avoidance of doubt, the provisions of the First Schedule with respect to—

(a)

tariff descriptions and the classification of goods;

(b)

units of quantities,

and the rules of interpretation of that Schedule set out in subsection (3) shall apply to the Second, Fourth and Fifth Schedules.

PART II – ADMINISTRATION
3.
Responsibility for administration, etc.
(1)

The Commissioner shall, subject to the direction of the Minister, be responsible for the control and management of the customs and for the collection of, and accounting for, customs and excise revenue.

(2)

The Commissioner may authorize any officer to exercise any of the powers conferred by this Act upon the Commissioner subject to such limitations as the Commissioner may think fit.

(3)

An officer who is appointed to a permanent office or employment in the customs shall, on his appointment thereto, make and subscribe before a magistrate or commissioner for oaths, a declaration in the form set out in the Tenth Schedule.

4.
Customs seal and flag
(1)

There shall be a seal of the customs.

(2)

There shall be a flag of the customs which shall distinguish vessels employed in the service of the customs from other vessels.

5.
Officer to have powers of police officer

For the purpose of carrying out this Act, every officer shall, in the performance of his duty, have all the powers, rights, privileges and protection of a police officer.

6.
Hours of attendance
(1)

The working days and hours of general attendance of officers shall be such as may be prescribed by the Commissioner.

(2)

Where a person desires the attendance of an officer at a time outside the hours of general attendance, then that person shall make request therefor on the prescribed form to the proper officer at the port or place where the attendance is desired; and, subject to any regulations and to the payment of the prescribed fees, the grant of the request shall not be unreasonably refused by the proper officer.

(3)

Where a person desires the attendance of an officer at any premises or place at which customs business is not normally carried on, then that person shall make request therefor on the prescribed form to the proper officer and, subject to any regulations and to the payment of the prescribed fees, the grant of the request shall be in the discretion of the proper officer.

7.
Offences by or in relation to officers
(1)

An officer who—

(a)

directly or indirectly asks for, or takes, in connxion with any of his duties a payment or other reward whatsoever, whether pecuniary or otherwise, or a promise or security for any such payment or reward, not being a payment or reward which he is lawfully entitled to claim or receive; or

(b)

enters into or acquiesces in any agreement to do, abstain from doing, permit, conceal, or connive at, any act or thing whereby the customs is or may be defrauded, or which is contrary to the provisions of this Act or the proper execution of the duty of that officer; or

(c)

discloses, except for the purposes of this Act or when required to do so as a witness in a court or with the approval of the Minister, information acquired by him in the performance of his duties relating to a person, firm or business of any kind,

shall be guilty of an offence and liable to imprisonment for a term not exceeding three years.

(2)

A person who dishonestly—

(a)

directly or indirectly offers or gives to an officer a payment or reward whatsoever, whether pecuniary or otherwise, or a promise or security for any such payment or reward; or

(b)

proposes or enters into an agreement with an officer,

in order to induce him to do, abstain from doing, permit, conceal, or connive at, any act or thing whereby the customs is or may be defrauded, or which is contrary to the provisions of this Act or the proper execution of the duty of that officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years.

8.
Disclosure and exchange of information

Notwithstanding any other provisions of this Act, the Commissioner may—

(a)

disclose information to a person in the service of the Government in a revenue or statistical department where the information is needed for the purposes of the official duties of that person solely for revenue or statistical purposes; and

(b)

subject to such reciprocal arrangements as may be agreed upon by him, furnish to the competent authorities of a foreign country any information, certificate, official report or other document with a view to the prevention, investigation or suppression of offences against the laws and regulations applicable to the importation or exportation of goods into or from the territory of that foreign country.

9.
Appointment and fixing of limits of ports, customs areas, etc.
(1)

Subject to subsection (1A) the Commissioner shall by notice in the Gazette appoint and fix the limits of—

(a)

ports;

(b)

customs airports;

(c)

places of loading and unloading within ports;

(d)

boarding stations;

(e)

customs areas;

(f)

sufferance wharves;

(g)

places for the landing and embarkation of persons;

(h)

places for the examination of goods (including baggage);

(i)

transit sheds;

(j)

roads or routes in Kenya over which goods in transit, or carried coastwise, shall be conveyed;

(k)

entrances and exits, whether general or special, to and from any customs area, port, or airport within Kenya.

(1A)

Notwithstanding the provisions of subsection (1), transit sheds and other customs areas shall—

(a)

only be located in plots of not less than 2.5 hectares:

Provided

that this requirement shall not apply to transit sheds appointed before 12th June, 2003;

(b)

have a railway siding in case of transit sheds handling goods imported by sea;

(c)

be located not more than one kilometre from the runway, in the case of transit sheds used for the handling of goods imported by air;

(d)

be located within or next to existing customs areas, in the case of transit sheds at frontier ports;

(e)

where located more than ten kilometres from the port, not be used for the handling of transit or transhipment goods;

(ee)

where used to consolidate cargo, comply with such conditions as the Commissioner may, by notice in the Gazette, prescribe;

(f)

if appointed before the commencement of this subsection, comply with this subsection not later than the 31st December, 2004.

(2)

An appointment made under subsection (1) may be subject to such conditions, including the provision of suitable accommodation for officers, as the Commissioner may think fit:

Provided that—

(a)

the private operators of transit sheds shall provide to the Commissioner such security to cover the duties on goods deposited therein as the Commissioner may determine; and

(b)

the Commissioner may revoke the appointment of any transit shed whose average monthly revenue in the calendar year ending on 31st December, 2004, or any subsequent calendar year, is less than one hundred million shillings.

(3)

The Commissioner may, in any particular case, on a temporary basis and subject to such conditions as he may think fit, permit any boarding station, area, wharf, place, road, route, entrance or exit to be used as if it had been so appointed and in that case this Act shall apply thereto as if it had been so appointed.

(4)

Any person who—

(a)

deposits transit goods in a place other than one appointed by the Commissioner under subsection (1);

(b)

fails to comply with, or contravenes, any of the conditions prescribed by the Commissioner with respect to the operation of transit sheds;

(c)

deposits or allows any person to deposit prohibited goods in the transit shed; or

(d)

is in any way involved in fraudulent activity with respect to the goods deposited in a transit shed,

shall be guilty of an offence and liable to a fine not exceeding one million, five hundred thousand shillings, and the Commissioner may revoke the appointment of the transit shed to which the offence relates.

10.
Accommodation on wharves
(1)

A wharf owner shall provide to the satisfaction of the Commissioner—

(a)

suitable office accommodation on his wharf or sufferance wharf for the exclusive use of the officer employed at the wharf; and

(b)

such shed accommodation for the protection of goods as the Commissioner may in writing declare to be requisite.

(2)

Where a wharf owner contravenes any of the provisions of this section then—

(a)

the appointment of a place of loading or unloading or a sufferance wharf may be withheld until the required accommodation is provided to the satisfaction of the Commissioner;

(b)

any existing appointment may be revoked.

11.
Offences in respect of customs areas, etc.
(1)

No person or vehicle shall enter or leave a customs area, port or airport and no goods, whether dutiable or not, shall be brought into or out of any such area, port or airport except through an entrance or exit appointed in accordance with section 9.

(2)

No person shall enter any part of a customs area, port or airport when forbidden to do so by an officer, nor remain in such an area or port, or any part thereof, when requested to leave the area or port, or part thereof, by an officer.

(3)

A person or vehicle entering or leaving, or goods which are being brought into or out of, a customs area, port or airport may be detained by an officer for the purposes of search or examination.

(4)

A person who contravenes this section shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture.

12.
Customs control of goods
(1)

The following goods shall be subject to customs control—

(a)

all imported goods, including goods imported through the Post Office, from the time of importation until delivery for home use or until exportation, whichever first happens;

(b)

all goods under drawback from the time of the claim for drawback until exportation;

(c)

all goods subject to export duty from the time when the goods are brought to a port or place for exportation until exportation;

(d)

all goods subject to restriction on exportation from the time the goods are brought to a port or place for exportation until exportation;

(e)

all goods which are with the permission of the proper officer stored in a customs area pending exportation;

(f)

all goods on board an aircraft or vessel whilst within a port or place in Kenya;

(g)

all dutiable goods and excisable goods on which duty has not been paid;

(h)

all seized goods and all goods under a notice of seizure.

(2)

Where any goods are subject to customs control then—

(a)

any officer may at any time examine those goods;

(b)

except by authority or in accordance with this Act, no person shall interfere in any way with those goods:

Provided that the Commissioner may, permit the assembly of any vehicle, machinery or part processing of any other goods if he is satisfied that the vehicle, machinery or other goods will not lose their identity after the assembly or part processing.

(3)

Where goods are subject to customs control, the Commissioner may permit the owner of those goods to abandon them to the customs; and on abandonment the goods may, at the expense of the owner thereof, be destroyed or otherwise disposed of as the Commissioner may direct and the duty thereon shall be remitted or refunded, as the case may be.

(4)

A person who contravenes subsection (2)(b) shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both, and any goods in respect of which the offence has been committed shall be liable to forfeiture.

13.
Liability for loss, etc., through negligence of officer

Where loss or damage is occasioned to goods subject to customs control or to plant in a factory through the wilful or negligent act of an officer, then an action shall lie against the Commissioner or that officer in respect thereof.

PART III – IMPORTATION
14.
Prohibited and restricted goods
(1)

The goods specified in Part A of the Eighth Schedule are prohibited imports and the importation thereof is prohibited.

(2)

The goods specified in Part B of the Eighth Schedule are restricted imports and the importation thereof, save in accordance with any conditions regulating their importation, is prohibited.

15.
Power to prohibit, etc., imports
(1)

The Minister may, by order published in the Gazette, amend Part A or B of the Eighth Schedule.

(2)

The Minister may, by order in the Gazette

(a)

provide that the importation of any goods or class of goods shall be prohibited or shall be prohibited save in accordance with conditions which may be specified;

(b)

limit the application of the provisions of the Eighth Schedule in respect of all or any of the goods specified therein,

and thereupon in respect of those goods the provisions of this Act shall apply as if the goods are, or are not, as the case may be, included in the Eighth Schedule.

(3)

Any order made under this section may specify goods, or any class of goods, either generally or in any particular manner and may prohibit or restrict the importation thereof either from all places or from any particular country or place.

16.
Exemption of goods in transit, etc.
(1)

Subject to subsection (2), sections 14 and 15 shall not apply to goods imported in transit, or for transhipment, or as stores of an aircraft or vessel, unless the goods come within item 2 of Part A of the Eighth Schedule, or are goods of which the importation in transit, or for transhipment, or as stores for an aircraft or vessel, is expressly prohibited or restricting the importation of goods.

(2)

Where, under subsection (1), sections 14 and 15 do not apply to goods imported in transit, or for transhipment, or as stores for an aircraft or vessel, then those goods shall be re-exported within such time and subject to such conditions as may be prescribed; and if the goods are not so re-exported, the owner thereof shall be guilty of an offence and the goods in respect of which an offence has been committed shall be liable to forfeiture.

(3)

Subject to subsection (2), where the ownership of goods entered in transit is changed by virtue of a court order or for any other reasons the new owner shall be deemed to have assumed the obligation to have the goods re-exported within the prescribed period.

[Act No. 100 of 1980, s. 2, Act No. 10 of 1986, s. 2, Act No. 10 of 1990, s. 3, Act No. 4 of 1993, s. 4.]

Arrival and Report of Aircraft and Vessels

17.
Procedure on arrival
(1)

Save as provided in section 24, the master of every aircraft or vessel arriving in Kenya—

(a)

shall not, except where so allowed by the proper officer in any special circumstances, cause or permit the aircraft or vessel to land, touch at or enter any place in Kenya other than a port;

(b)

shall, on arriving at a port, come as quickly as the conditions of the port admit up to the proper place of mooring or unloading without touching at any other place;

(c)

shall, in proceeding to the proper place, bring to at the station appointed for the boarding of aircraft or vessels;

(d)

shall not, after arriving at the proper place, depart therefrom except directly to some other approved place of mooring or unloading, or directly to some other port or place in Kenya, or directly on a voyage to a foreign port or place, in accordance with this Act;

(e)

shall not, after departure on a voyage to a foreign port or place, bring to within Kenya except in accordance with this Act, or with the permission of the proper officer, or for some cause which the master explains to the satisfaction of the proper officer.

(2)

A master who contravenes this section shall be guilty of an offence.

18.
Place of mooring, etc.

The proper officer may, unless other provision is lawfully made direct at which particular part of a port or other place an aircraft or vessel shall moor or discharge its cargo.

19.
Restriction on boarding vessels before proper officer
(1)

No person except the port pilot, the health officer or other public officer in the exercise of his duties and duly authorised, shall, save with the permission of the proper officer, board a vessel before the proper officer.

(2)

A person who contravenes this section shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings.

20.
Report of aircraft and vessels
(1)

The master or agent of an aircraft or vessel, whether laden or in ballast, shall, except where otherwise provided in regulations, within twenty-four hours after arrival from a foreign port or place at a port or other place especially allowed by the proper officer, make report of the aircraft or vessel, and of its cargo and stores, and of any package for which there is no bill of lading, to the proper officer on the prescribed form and in the prescribed manner.

(2)

The report shall show separately goods which are in transit, goods for transhipment, goods which are to remain on board for other ports in Kenya and goods for re-exportation on the same aircraft or vessel.

(3)

In the case of a vessel of less than two hundred and fifty tons register, the report shall, except where otherwise allowed by the proper officer, be made before bulk is broken.

(4)

The proper officer may permit the master or agent of an aircraft or vessel to amend the destination, the ownership or status of goods specified in the report where a change in such ownership is intended, or to amend an obvious error in the report or to supply an omission, which in the opinion of the proper officer results from accident or inadvertence, by furnishing an amended or supplementary report in the prescribed manner.

(5)

A master or agent of any aircraft or vessel who—

(a)

fails to make report in accordance with this section; or

(b)

makes a report of which any of the particulars contained therein is false; or

(c)

except with the knowledge and consent of the proper officer, causes or permits bulk to be broken contrary to this section; or

(d)

except with the knowledge and consent of the proper officer, at any time after arrival causes or permits any goods to be staved, destroyed, or thrown overboard, or any packages to be opened,

shall, unless the contravention is explained to the satisfaction of the proper officer, be guilty of an offence and any goods in respect of which an offence contrary to this subsection has been committed shall be liable to forfeiture.

21.
Master to answer questions, etc.
(1)

The master or agent of an aircraft or vessel—

(a)

shall answer fully and immediately all questions relating to the aircraft or vessel, its cargo, stores, baggage, crew and passengers which may be put to him by the proper officer;

(b)

shall produce all books and documents in his custody or control relating to the aircraft or vessel, its cargo, stores, baggage, crew and passengers which the proper officer may require;

(c)

shall, before any person, unless permitted to do so by the proper officer, disembarks, deliver to the officer who boards the aircraft or vessel on arrival at a port or place, a correct list in the prescribed form containing separately the names of the passengers disembarking and of those remaining on board the aircraft or vessel, and also, if required by the officer, the names of the master and of each officer and member of the crew;

(d)

shall, if required, deliver to the proper officer at the time of making report, the clearance, if any, of the aircraft or vessel from the port or place from which the aircraft or vessel has arrived.

(2)

A master or agent who contravenes this section shall be guilty of an offence.

22.
Goods in transit shed, etc., deemed in aircraft or vessel
(1)

Goods which have been unloaded and landed into a transit shed or a customs area shall be deemed to be still in the importing aircraft or vessel until they are delivered from the transit shed or customs area; and so long as they remain therein the owners or agents of the aircraft or vessel shall continue to be responsible therefor as if the goods had not been removed from the aircraft or vessel, and the owners or agents shall be liable for payment of duty thereon if the goods are not subsequently delivered or otherwise accounted for to the satisfaction of the proper officer or for re-shipment or destruction of any such goods which are condemned while still in the dry port or inland transit shed:

Provided that—

(a)

where the owners or agents of an aircraft or vessel fail to pay any duties or taxes in respect of any goods under this subsection, the Commissioner may require the transit shed operator to pay such duties or taxes in full; and

(b)

where the owners or agents of an aircraft or vessel fail to meet the cost of reshipment or destruction of any goods condemned as aforesaid, the operator of the transit shed shall bear the cost.

(2)

The owner or agent of an aircraft or vessel who fails to account for any of the goods deemed to be in the importing aircraft or vessel under subsection (1) to the satisfaction of the proper officer, within such period as may be prescribed or such further period as the proper officer may allow, shall be guilty of an offence.

(3)

The owner or agent of an aircraft or a vessel, or, as the case may be, the operator of a dry port or inland transit shed who fails to meet the cost of reshipment or destruction of any condemned goods pursuant to subsection (1) shall be guilty of an offence.

[Act No. 13 of 1995, s. 6, Act No. 9 of 2000, s. 3, Act No. 7 of 2002, s. 3.]

23.
Goods reported to be unloaded

Where goods reported for discharge at a port or place specially allowed by the proper officer are not duly unloaded and deposited in a transit shed or a customs area, then the master or agent of the aircraft or vessel shall, unless he explains to the satisfaction of the proper officer, be guilty of an offence and shall be liable to pay the duty due thereon.

24.
Master of wreck, etc., to report
(1)

When an aircraft or vessel is lost or wrecked or is compelled to land or bring to within Kenya owing to accident, stress of weather or other unavoidable cause, the master or agent of the aircraft or vessel shall with all reasonable speed make report of the aircraft or vessel and of its cargo and stores to the nearest officer or administrative officer.

(2)

Where an aircraft or vessel is found abandoned within Kenya then, unless the master or agent thereof satisfies the Commissioner that all the provisions of this Act in relation to the aircraft or vessel and its cargo and stores have been complied with, the aircraft or vessel and its cargo and stores shall be liable to forfeiture.

(3)

A master or agent who contravenes subsection (1) shall be guilty of an offence.

Arrival Overland

25.
Arrival overland
(1)

A person, whether or not in charge of a vehicle and whether or not the vehicle may be conveying goods which are dutiable, arriving overland at a frontier of Kenya from a place outside Kenya shall not, except where otherwise permitted by the proper officer, enter Kenya at any place other than at a port or place appointed under section 9 and shall before unloading or disposing of any vehicle or goods—

(a)

report his arrival to the officer stationed at the port nearest to the point at which he crossed the frontier;

(b)

furnish on the prescribed form such information as may be required concerning any vehicle and goods;

(c)

make and subscribe a declaration as to the truth of all particulars contained in the form;

(d)

fully and immediately answer all relevant questions put to him by the proper officer;

(e)

produce all consignment notes or other relevant documents demanded of him by the proper officer;

(f)

save as otherwise provided in this Act make due entry of the vehicle and goods.

(2)

No vehicle or goods to which this section applies shall be removed from a customs area until after due entry thereof has been made or until permission for removal has been granted by the proper officer.

(3)

The Commissioner may, subject to such conditions as may be specified, exempt any person or class of persons from the provisions of this section.

(4)

A person who contravenes this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

Unloading, Entry, Removal, Examination, and Delivery of Cargo

26.
Unloading, etc.
(1)

Subject to this Act, save with the written permission of the proper officer and subject to such conditions as he may impose—

(a)

no goods shall be unloaded from an aircraft or vessel arriving from a foreign port or place unless the goods have first been duly entered;

(b)

no goods shall be unloaded or removed from an aircraft or vessel arriving from a foreign port or place at any time whatsoever except as prescribed by the Commissioner;

(c)

no goods shall be unloaded from an aircraft or vessel arriving from a foreign port or place except at an approved place of unloading or at a sufferance wharf:

Provided that—

(i) goods may be unloaded from the aircraft or vessel into another vessel in order to be landed; and in that case the goods shall be taken directly to and landed without delay at an approved place of unloading or at a sufferance wharf;
(ii) with the permission of the proper officer and subject to such conditions as he may impose, goods reported for re-exportation by another aircraft or vessel may be unloaded into another aircraft or vessel pending re-exportation;
(d)

all goods which have been unloaded or landed shall be conveyed to a customs area and, if the proper officer so requires, shall be deposited in a transit shed or in a customs warehouse:

Provided

that goods which the proper officer may consider to be unsuited for storage in a transit shed or a customs warehouse shall be deposited in such other place as the proper officer may direct, and thereupon that other place shall, for the purpose of deposit, be deemed to be a transit shed;

(e)

no goods shall be removed from any part of a customs area or from a transit shed or a customs warehouse unless those goods have first been duly reported and entered and authority for their removal or delivery has been given by the proper officer:

Provided that the proper officer may, if he considers it necessary, direct the agent of an aircraft or vessel from which goods have been landed into a transit shed or customs warehouse to remove those goods to some other place, which other place shall for the purpose be deemed to be a transit shed, selected by the proper officer and, if the agent fails to remove the goods when called upon, the proper officer may have them removed at the risk and expense of the agent;

(f)

where any goods are deposited in a transit shed, in a customs warehouse or in any place as directed by the proper officer the customs shall not be liable to any charges arising therefrom;

(g)

all goods entered for warehousing shall, after the owner thereof has entered into a bond for their warehousing, be removed by the importer by such routes, in such manner, and within such time, as the proper officer may direct to the warehouse for which they were entered and shall be delivered into the custody of the person in charge of the warehouse.

(2)

A person who contravenes this section, or any of the conditions which may have been imposed by, or any of the directions which may have been given by, the proper officer shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

27.
Entry of cargo
(1)

Save as otherwise provided in this Act, the whole of the cargo of an aircraft or vessel which is unloaded or to be unloaded shall be entered by the owner within such period after the commencement of discharge as may be prescribed, or such further period as may be allowed by the proper officer, either for—

(a)

home use;

(b)

warehousing;

(c)

transhipment; or

(d)

transit.

(2)

Where an entry is delivered to the proper officer, the owner shall furnish therewith full particulars supported by documentary evidence of the goods referred to in the entry.

(3)

Entries for goods to be unloaded may be delivered to the proper officer for checking before the arrival at the port of discharge of the aircraft or vessel in which the goods are imported; and in that case the Commissioner may permit goods to be entered before the arrival of the aircraft or vessel.

(4)

Where goods remain unentered at the expiration of the prescribed period, or of such further period as may have been allowed by the proper officer, then the goods shall, if the proper officer so requires, be removed by, or at the expense of, the agent of the aircraft or vessel in which the goods were imported to a customs warehouse.

(5)

Where goods entered for transit or transhipment under subsection (1) are not removed from the customs area within a period of thirty days from the date of entry, such goods shall be removed at the expense of the owner to a customs warehouse:

Provided that where goods are entered before arrival at the port of discharge of the aircraft or vessel under subsection (3), the thirty days’ period shall run from the date the aircraft or vessel commences discharge.

28.
Surplus stores may be entered

The surplus stores of an aircraft or vessel may, with the permission of the proper officer, be entered for home use or for warehousing.

29.

Provisions relating to mail, personal baggage, etc.

(1)

Notwithstanding sections 26 and 27—

(a)

mail bags and postal articles in the course of transmission by post may be unloaded and delivered to an officer of the Post Office without entry;

(b)

goods which are the bona fide personal baggage of the passengers or members of the crew of an aircraft or vessel may, subject to the provisions of any regulations, be unloaded and delivered to those persons without entry;

(c)

the proper officer may permit the unloading and delivery to the owner of bullion, currency notes, coin or perishable goods without entry, subject to security being given by the owner to furnish the necessary entry within forty-eight hours of the time of delivery.

(2)

An owner who contravenes the provisions of subsection (1)(c) shall be guilty of an offence.

30.
Entry in absence of documents
(1)

If the owner of goods is, by reason of the absence of any, or of any sufficient, documents or information concerning them, unable to furnish full particulars of those goods, he shall make and subscribe a declaration on the prescribed form to that effect, and thereupon the proper officer may permit the owner to examine the goods in his presence.

(2)

Upon examination having been made the proper officer may, subject to section 31, permit the owner to enter the goods for home use, or for warehousing, if he is satisfied that the description of the goods for tariff and statistical purposes is correctly made in the entry, and also—

(a)

in the case of goods liable to duty ad valorem, that the value declared on the entry is approximately correct; and

(b)

in the case of goods liable to duty according to weight, quantity, number, measurement or strength, that the weight, quantity, number, measurement or strength declared on the entry is correct.

(3)

Where the proper officer has permitted entry to be made under subsection (2), the delivery of the goods may accordingly be made, but the proper officer may, in the case of goods liable to duty ad valorem, retain samples of the goods for such period up to the passing of perfect entry as he may think fit.

(4)

Where the owner of any goods referred to in the declaration does not make, or is not permitted to make entry thereof in accordance with this section, then the proper officer shall cause the goods referred to in the declaration to be deposited in a customs warehouse.

31.
Provisions relating to goods liable to ad valorem duty
(1)

Where goods entered in accordance with section 30 are goods liable to duty ad valorem, then the entry shall be deemed to be a provisional entry.

(2)

Where any such goods are provisionally entered for home use, then the proper officer may require the owner to deposit, in addition to the amount estimated as the duty for the purpose of making the provisional entry, such further sum as the proper officer may think fit; and the estimated duty and further sum shall be held on deposit and shall be forfeited unless the owner within three months, or such further period as may be allowed by the proper officer, of the provisional entry produces to the proper officer satisfactory evidence of the value of the goods and makes perfect entry thereof.

(3)

Where the owner makes a perfect entry in accordance with subsection (2), the proper officer shall subtract from the amount held on deposit under that subsection, the full amount of duty payable in respect of the goods and shall refund the difference to the owner:

Provided that where the full amount of duty payable exceeds the amount deposited, the proper officer shall require the owner to pay an additional amount of duty equal to the difference between the amount of duty payable and the amount deposited.

32.
Delivery from customs area in special circumstances
(1)

The proper officer may, subject to such conditions as he may impose and to the giving of such security as he may think appropriate for the due return thereof or the payment of the duties thereon, permit goods to be removed from a transit shed or customs area without payment of the duty for such purpose, for such period, and in such quantities, as he may think fit.

(2)

A person who contravenes any conditions imposed under subsection (1) shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

33.
Re-packing, etc., in customs area, etc.

The proper officer may permit goods to be repacked, skipped, bulked, sorted, lotted or packed on an approved place of unloading, or on a sufferance wharf, or in a transit shed, or in a customs area.

34.
Goods deposited in a customs warehouse may be sold, etc.
(1)

Where goods which are deposited in a customs warehouse are not removed within twenty-one days after deposit, then, the proper officer shall give notice that unless such goods are removed within twenty-one days from the date of the notice, they shall be deemed to have been abandoned to customs for sale by public auction.

(2)

Subject to subsections (3A) and (4), where goods are deemed to be abandoned under subsection (1), then, such goods, whether restricted or not, shall be sold by public auction after twenty-one days notice of sale has been given:

Provided that any such goods—

(i) which are of a perishable nature or are animals may, with the authority of the Commissioner, be sold without notice, either by public auction or private treaty, at any time after deposit in the customs warehouse;
(ii) which are restricted under any written law in force in Kenya may, with the authority of the Commissioner and subject to subsection (8), be sold only to persons licensed to deal in such goods or in similar goods;
(iii) which are imported by the Government, a diplomatic mission, a state corporation, an aid agency or by the Government or a state corporation of a neighbouring country, shall not be sold except with the prior written approval of the Commissioner;
(iv) any such goods which are prohibited under the provisions of any written law for the time being in force in Kenya shall not be sold and shall be re-exported or destroyed within thirty days of the date the goods are declared prohibited imports.
(3)

Every notice given under subsections (1) and (2) shall be advertised in such prominent manner as the Commissioner may see fit.

(3A)

Where goods are not sold at a public auction held under subsection (2), they may be sold at a subsequent auction without an additional notice of sale being given.

(4)

Notwithstanding the provisions of subsection (2), the Commissioner may, upon application by the owner, made at least seven days before the date of sale, if satisfied that failure to remove the goods was due to circumstances beyond the control of the owner, allow the goods to be withdrawn from the auction sale.

(5)

Goods deposited in a customs warehouse shall be subject to such rent and other charges as may be prescribed.

(6)

Where goods are sold under this section, the proceeds thereof shall be applied in the order set out below in the discharge of—

(a)

the duties, if any;

(b)

the expenses of removal and sale;

(c)

the rent and charges due to the customs; and

(d)

the port charges;

(e)

the freight charges, if any.

(7)

Where after the proceeds of sale have been applied in accordance with subsection (6) there is a balance, such balance shall be paid into the customs and excise revenue.

(8)

Where goods fail to be sold in accordance with this section but are in the opinion of the Commissioner without value, or cannot be sold for any other reason, then they may be destroyed or disposed of in such manner as the Commissioner may direct.

(9)

An officer having the custody of goods in a customs warehouse, or place of deposit deemed to be a customs warehouse, may refuse delivery therefrom until he is satisfied that all duties, expenses, rent, freight and other charges due in respect of those goods have been paid

35.
Goods deemed to be in a customs warehouse
(1)

Where under this Act goods are required to be deposited in a customs warehouse, the proper officer may decide that it is undesirable or inconvenient to deposit the goods in a customs warehouse and direct that the goods shall be deposited in some other place; and thereupon the goods shall for all purposes be deemed to have been deposited in a customs warehouse as from the time that they are required to be so deposited.

(2)

Where goods are deemed to have been deposited in a customs warehouse then the goods shall, in addition to the rent and other charges to which they are liable under section 34, be chargeable with such expenses incurred in the securing, guarding and removing of them as the proper officer may consider reasonable; and neither the Commissioner nor an officer shall be liable for the loss of or damage to the goods which may be occasioned by reason of their being so deposited and dealt with.

PART IV – WAREHOUSING OF GOODS
36.
Dutiable goods may be warehoused
(1)

Subject to any regulations, goods liable to duty may on first importation be warehoused without payment of duty in a Government warehouse or a bonded warehouse licensed by the Commissioner.

(2)

On, or as soon as practicable after, the landing of goods to be warehoused, the proper officer shall take a particular account of the goods and shall enter the account in a book; and the account shall, subject to sections 41 and 47, be that upon which the duties in respect of the goods shall be ascertained and paid.

37.
Procedure on warehousing
(1)

Where goods entered to be warehoused are delivered into the custody of the person in charge of a warehouse, the proper officer shall take a particular account of the goods, whether or not an account thereof has been previously taken.

(2)

The proper officer shall, in taking an account, enter in the book for that purpose the name of the aircraft or vessel or the registered number of the vehicle, as the case may be, in which the goods were imported, or, in the case of postal articles, the parcel post reference, the name of the owner of the goods, the number of packages, the mark and number of each package, and the value and particulars of the goods.

(3)

After the account has been taken and the goods deposited in the warehouse in accordance with the direction of the proper officer, the officer shall certify at the foot of the account that the entry and warehousing of the goods is complete; and the goods shall from that time be considered goods duly warehoused.

(4)

Subject to section 39, all goods entered to be warehoused shall be removed to the warehouse for which they were entered and deposited therein within seven days from the date of release, or within such further period as the Commissioner may allow for bonded warehouses situated away from the port of importation:

Provided that where goods are permitted to be repacked, skipped, bulked, sorted, lotted or packed in accordance with section 33, those goods shall be deposited in then packages in which they were contained when the account thereof was taken.

(5)

A person who contravenes subsection (4) shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

38.
Removal to warehouse of goods entered therefore
(1)

Where goods entered to be warehoused are not duly warehoused by the owner, the proper officer may cause them to be removed to the warehouse for which they were entered.

(2)

Where goods are so removed to a bonded warehouse the warehouse keeper shall pay the cost of the removal of the goods and shall have a lien on the goods for the cost.

39.
Entry of warehoused goods
(1)

Goods which have been warehoused may be entered either for—

(a)

home use;

(b)

exportation;

(c)

removal to another warehouse;

(d)

use as stores for aircraft or vessels; or

(e)

re-warehousing.

(2)

Where goods have been entered for warehousing they may, before they are actually warehoused, be entered for home use, for exportation, for removal to another warehouse, or for use as stores for aircraft or vessels; and in that case the goods shall be deemed to have been so warehoused and may be delivered for home use, for exportation, for removal to another warehouse, or for use as stores for aircraft or vessels, as the case may be, as if they had been actually so warehoused.

40.
Operations in a warehouse
(1)

Where goods are warehoused, the commissioner may, subject to such conditions as he may impose—

(a)

permit the goods to be repacked, skipped, bulked, sorted, lotted or parked therein;

(b)

permit samples of the goods to be taken by the owner;

(c)

permit the name of the owner of the goods in the account taken under section 36 to be changed if application therefore is made in the prescribed form and signed by both the owner and the intended owner;

(d)

permit the assembly or manufacture in the warehouse of any article consisting wholly or partly of those goods; and for that purpose the Commissioner may permit the receipt in a warehouse of duty free or locally produced articles required as components of the article to be so assembled or manufactured therein:

Provided that—

(i) where the finished article is entered for home use, duty shall be charged on the goods forming part thereof according to the first account taken upon the warehousing of the goods except in the case of imported crude petroleum or partly refined petroleum oils which are warehoused in a refinery, in which case duty shall be charged on the goods produced from crude petroleum or partly refined petroleum oils delivered from the refinery for home use and shall be the same as that which would be payable on the importation of similar goods; and
(ii) in respect of blended lubricating oils, duty shall be charged on the resultant volume of the blend at the time of entry for home use and shall be the same as that which would be payable on the importation of similar goods.
(2)

A person who contravenes any conditions which may be imposed by the Commissioner under this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

41.
Regauging in revaluation

The proper officer may, either on the direction of the Commissioner or on the application and at the expense of the owner, regauge, remeasure, reweigh, examine or take stock of any warehoused goods, and in either case the duty on the goods shall be payable according to the result, unless the proper officer considers that any loss or deterioration is excessive or has been wilfully or negligently caused, in either of which events the duty shall, subject to such reduction, if any, as the Commissioner may allow, be payable according to the original account.

42.
Delivery from warehouse in special circumstances
(1)

The Commissioner may, subject to such conditions as he may impose and to the giving of such security as he may think appropriate for the due return thereof or the payment of duties thereon, permit goods to be removed from a warehouse without payment of duty for such purpose, for such period, and in such quantities, as he may think fit.

(2)

A person who contravenes any conditions imposed under subsection (1) shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

43.
Removal to another warehouse or bonded factory
(1)

Where warehoused goods are to be removed to another warehouse or a bonded factory, then the proper officer—

(a)

shall require owner of the goods to deliver an entry thereof in such form and manner as the proper officer may direct;

(b)

shall require the owner to give security in such amount, not being less than the duty chargeable on the goods, as the proper officer may think fit for the due arrival and re-warehousing of the goods within such time as the proper officer may consider appropriate; and

(c)

shall transmit to the proper officer of the place where the goods are to be re-warehoused an account containing the particulars of the goods.

(2)

Security given under this section shall not be discharged unless—

(a)

the conditions attaching thereto have been satisfied; or

(b)

the full duty payable on the goods has been paid in accordance with this Act; or

(c)

the goods are otherwise accounted for to the satisfaction of the proper officer, and any duties due in respect of any deficiency in the goods not so accounted for have been paid.

(3)

on the arrival of the goods at the other warehouse or bonded factory, a particular account of them shall be taken in accordance with section 37 or section 58F, as the case may be.

44.
Warehoused goods may be delivered as stores
(1)

Where warehoused goods have been entered for use as stores for an aircraft or vessel, they may be delivered for that purpose to a vessel or aircraft proceeding to a foreign port or place:

Provided that warehoused goods shall not be entered for use as stores for a vessel of less than ten tons register or be delivered for that purpose.

(2)

Where warehoused goods are delivered for the purpose of being used as stores for an aircraft or vessel, they shall forthwith be put on board the aircraft or vessel for which they are entered.

(3)

Where warehoused goods are dealt with contrary to this section, the owner of the goods shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

45.
Abandonment, etc., of warehoused goods
(1)

The Commissioner may subject to such conditions as he may impose—

(a)

permit the owner of warehoused goods to abandon the goods to the customs;

(b)

permit the owner of warehoused goods which, in the opinion of the proper officer, are worthless or have become damaged, or are surplus, by reason of any operations in connexion therewith carried out under section 40, to destroy the goods,

and in either case the duty on the goods shall be remitted.

(2)

Where under subsection (1) warehoused goods are—

(a)

abandoned to the customs, then the goods shall be disposed of in the manner provided in section 34:

Provided that, where the goods are destroyed or disposed of in some manner other than sale, the destruction or disposal shall be at the expense of the owner;

(b)

permitted to be destroyed, and the goods were warehoused in a Government warehouse, then the owner of the goods shall nevertheless be liable to pay to the proper officer the rent and other charges due on the goods.

46.
Period of warehousing of goods
(1)

All warehoused goods which have not been removed from a warehouse in accordance with this Act within six months of the date on which they were entered shall be entered for re-warehousing for a further period of six months or such longer period as the Commissioner may allow; but those goods shall not be re-warehoused more than once:

Provided that in the case of wines and spirits warehoused by licensed excise manufacturers and duty free shops or locally assembled motor vehicles warehoused by approved motor vehicle assemblers, the Commissioner may, in addition to the period of re-warehousing permitted in this subsection allow such further period of re-warehousing as he may deem appropriate.

(2)

Where goods required to be re-warehoused under subsection (1) are not so re-warehoused, then duty shall become due and payable and shall be paid forthwith in accordance with the account taken under sections 36 and 37.

(3)

Where duty becomes due and payable under subsection (2) and the owner fails to pay the duty within twenty-one days or such further period as the Commissioner may allow, from the date the duty becomes due and payable, the goods shall be sold by public auction after twenty-one days’ notice of such sale has been given by the officer in such prominent public manner as the Commissioner may see fit:

Provided that any such goods which are of a perishable nature may, with the authority of the Commissioner, be sold by the proper officer without notice, either by public auction or private treaty, at any time after the expiry of the period of re-warehousing.

(4)

Where any goods are sold under this section then the proceed thereof shall be applied in the order set out below in the discharge of—

(a)

the duties, if any;

(b)

the expenses of removal and sale;

(c)

any rent and charges due to the Customs; and

(d)

any rent and charges due to the warehouse keeper.

(5)

Where any balance is realised after the application of the proceeds in accordance with subsection (4), it shall be paid into the customs and excise revenue.

47.
Examination of warehoused goods on delivery
(1)

Where warehoused goods are delivered for home use, for exportation, for removal to another warehouse, or for use as stores for aircraft or vessels, or are to be re-warehoused under section 46, then the proper officer may examine and take stock of the goods.

(2)

Where there is a deficiency between the quantity shown by the warehouse account and that ascertained on examination, then, if the proper officer considers—

(a)

that the deficiency is not excessive or that it was not wilfully or negligently caused, he may allow the deficiency and direct that the duties on the goods shall be payable, or that the re-warehousing entry shall be made, as the case may be, on the result of the examination;

(b)

that the deficiency is excessive or that it was wilfully or negligently caused, he shall require the duties on the goods to be paid by the owner according to the warehouse account:

Provided that where the goods are to be re-warehoused, the duty on the deficiency shall be forthwith paid by the owner of the goods and the re-warehousing entry shall be made according to the result of the examination.

48.
Access to warehouse
(1)

The proper officer shall at all times have the right of access to any part of a warehouse and may examine any goods therein; and for the purpose of obtaining access the proper officer may break open the warehouse or any part thereof, or any adjacent premises.

(2)

No person other than the proper officer or, in the case of a bonded warehouse, the warehouse keeper or a duly authorized employee, shall open a warehouse or gain access to goods therein save with the approval of the proper officer; and a person who contravenes this subsection shall be guilty of an offence.

(3)

No person shall enter a warehouse or part thereof contrary to the orders of the proper officer, or shall refuse to leave a warehouse or part thereof when directed to do so by the proper officer; and a person who contravenes this subsection shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings.

49.
Removal of goods after entry for home use, export or sale
(1)

Any goods deposited in a warehouse or bonded factory which are entered for home use or for export or sold in accordance with this Act shall—

(a)

in the case of goods entered for home use or sold in accordance with this Act, be removed from such warehouse or bonded factory within fourteen days of such entry or sale, as the case may be; and

(b)

in the case of goods entered for export, be removed from the warehouse or bonded factory and exported within thirty days or within such longer period, not exceeding thirty days, as the Commissioner may, in any particular case, allow.

(2)

Any goods which remain in a warehouse or bonded factory in contravention of this section shall be forfeited and sold or resold in accordance with the provisions of section 34.

50.
Penalty for unlawfully taking, etc., warehoused goods

A person who—

(a)

takes, or causes or permits to be taken, goods from a warehouse otherwise than in accordance with this Act; or

(b)

wilfully destroys or damages warehoused goods otherwise than in circumstances specifically provided for in this Act,

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

51.
Commissioner may license warehouses
(1)

The Commissioner may on application license a premises, room or enclosed area as a bonded warehouse for the deposit of goods liable to duty; and the Commissioner may refuse to issue a licence without assigning any reason, or may by notice in writing suspend, revoke or refuse to renew a licence on the grounds stated in the notice.

(1A)

An application under subsection (1) shall be in such form and comply with such requirements as the Commissioner may, by notice in the Gazette, prescribe.

(2)

The Commissioner may license a premises, room or enclosed area as either—

(a)

a general bonded warehouse for the warehousing of goods generally; or

(b)

a private bonded warehouse for the warehousing only of goods which are the property of the warehouse keeper.

(3)

A licence shall be in the prescribed form and shall be subject to the payment of the prescribed fee.

(3A)

Where the premises, room or enclosed area licensed as a bonded warehouse under this section is owned by a company registered under the Companies Act (Cap. 486), it shall be a condition of the licence that the company shall not change its directors except with the prior written approval of the Commissioner.

(4)

The Commissioner may require the person applying for a licence to furnish such security as the Commissioner may think appropriate as a condition to the grant of the licence and the Commissioner may at any time require a warehouse keeper to furnish new security in a different amount or on different terms.

(4A)

A licence issued under this section shall be subject to such conditions as the Commissioner may, by notice in the Gazette, prescribe.

(5)

The Commissioner may at any time require a bonded warehouse keeper to make such alterations or additions to his bonded warehouse as the Commissioner may consider necessary to ensure the proper security or warehousing of goods.

(6)

No building shall be used as a bonded warehouse unless there is in force in relation thereto a valid licence.

(7)

A warehouse keeper who uses or permits to be used his bonded warehouse in contravention of any of the terms of his licence shall be guilty of an offence.

(8)

An owner or occupier of a premises, room or enclosed area who uses or permits to be used the premises, room or enclosed area as a bonded warehouse without being the holder of a valid licence in respect thereof shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings and, in addition thereto, to a fine not exceeding five thousand shillings for any day or part of a day during which the premises, room or enclosed area was so used.

51A.
Commissioner may licence duty free shops
(1)

The Commissioner may, on application, licence a room or premises situated in a port as a duty free shop, for the deposit of dutiable goods on which duty has not been paid and which have been entered for use as ship stores or for sale to passengers departing to places outside Kenya.

(2)

An application under subsection (1) shall be in such form and comply with such requirements as the Commissioner may, by notice in the Gazette, prescribe.

(3)

The Commissioner may refuse to issue a licence under this section without assigning any reason, or may, by notice in writing, revoke or refuse to renew a licence on such grounds as may be specified in the notice.

(4)

Subject to this section, the provisions of this Act relating to bonded warehouses shall, mutatis mutandis, apply to duty free shops.

52.
Procedure on revocation or expiry of licence
(1)

Where the Commissioner revokes a licence under section 51, he shall cause to be served on the warehouse keeper notice of revocation by leaving the notice with the person in charge of the bonded warehouse; and thereupon that service shall be deemed to be notice of revocation to the owners of all goods warehoused therein.

(2)

Where a warehouse keeper proposes not to renew his licence in relation to a bonded warehouse, then he shall cause notice of his intention to be given to the owners of all goods warehoused therein.

(3)

Where the licence in relation to a bonded warehouse has been revoked or has expired, then within such time as the Commissioner may direct, all goods warehoused therein shall be entered and delivered for home use, for exportation, for removal to another warehouse, or for use as stores for aircraft or vessels.

(4)

Where goods have not been entered and delivered in accordance with subsection (3), the proper officer may cause the goods to be taken to a customs warehouse and thereupon the goods shall be dealt with in accordance with section 34.

53.
Warehouse keeper to provide facilities
(1)

A warehouse keeper shall—

(a)

provide office accommodation and just weights, scales, measures and other facilities for examining and taking account of goods and for securing them as the proper officer may reasonably require;

(b)

keep a record of all goods warehoused therein and keep that record at all times available for examination by the proper officer;

(c)

stack and arrange the goods in the bonded warehouse so as to permit reasonable access to and examination of every package at all times;

(d)

provide all necessary labour and materials for the storing, examining, packing, marking, coopering, weighing and taking stock of the warehoused goods whenever the proper officer so requires;

(e)

maintain such records and accounts relating to the operations of a refinery in such form and manner as the proper officer shall require, and shall keep the records and accounts at all times available for examination by the proper officer.

(2)

Where a warehouse keeper contravenes any of the provisions of this section the Commissioner may direct that no other goods shall be warehoused by that warehouse keeper until he has, in the opinion of the Commissioner, complied with those provisions.

(3)

A warehouse keeper who contravenes any of the provisions of this section or of a direction given by the Commissioner under this section shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings.

54.
Stowage and storage of goods in bonded warehouse
(1)

The proper officer may direct in what parts or divisions of a bonded warehouse and in what parts or divisions of a bonded warehouse and in what manner goods shall be deposited therein.

(2)

Subject to section 40, where goods have been warehoused in a bonded warehouse, then except with the approval of the proper officer, the goods shall not be moved or interfered with in any way, nor shall any alteration be made in the marks or numbers of any package.

(3)

A warehouse keeper who contravenes or who causes or permits a contravention of this section shall be guilty of an offence and shall be liable to a fine not exceeding twenty thousand shillings and any goods in respect of which an offence under subsection (2) has been committed shall be liable to forfeiture.

55.
Removal of goods from private to general warehouse
(1)

Where the warehouse keeper of a private bonded warehouse contravenes any of the provisions of this Act the proper officer may require him within such time as the proper officer may direct, to remove all or any of the goods warehoused in the private bonded warehouse to a general bonded warehouse or to enter and deliver them for home use, or for exportation, or for use as stores for aircraft or vessels.

(2)

Where a warehouse keeper contravenes a requirement given under subsection (1) the proper officer may cause the goods to be taken to a customs warehouse at the expense of the warehouse keeper and thereupon the goods shall be dealt with in accordance with section 34.

56.
Warehouse keeper to produce goods deposited
(1)

A warehouse keeper shall, on request, produce to the proper officer all goods deposited in his bonded warehouse.

(2)

A warehouse keeper who contravenes this section shall, in the absence of satisfactory explanation to the proper officer, be guilty of an offence and liable to a fine not exceeding ten thousand shillings in respect of each package not so produced and, in addition, the warehouse keeper shall forthwith pay the duties in respect of each such package.

Provisions Relating to Government Warehouses

57.
Goods in Government warehouse liable to rent, etc.

Where goods are deposited in a Government warehouse, they shall be subject to such rent and other charges as may be prescribed or as may be provided for in this Act; and, if the rent and other charges are not paid to the proper officer when lawfully demanded, the goods in respect of which the rent and other charges are due may be sold and the proceeds thereof applied in accordance with section 34.

58.
Removal, etc., of goods in Government warehouse

Where goods are deposited in a Government warehouse the proper officer may—

(a)

remove, at the expense of the customs, the goods from that warehouse to another Government warehouse;

(b)

perform, in relation to the goods and at the expense of the owner thereof, all acts which he may consider reasonably necessary for the proper custody and preservation of the goods:

Provided that the proper officer shall not, save where he considers immediate action necessary, perform any such act until twenty-four hours after the owner of the goods has been notified that the act is necessary;

(c)

by notice inform the owners of the goods that it is proposed to close the warehouse at the end of a period, not being less than three months from the date of the notice, which may be specified in the notice; and in that case regulations shall be made providing for the manner in which goods shall be dealt with on the warehouse being closed.

PART IVA – A—PROVISIONS RELATING TO MANUFACTURE UNDER BOND
58A.
Licensing of bonded factories
(1)

The Commissioner may, on application and with the prior approval of the Minister and subject to such conditions as the Commissioner may impose, issue a licence in the prescribed form to any person to manufacture goods under bond in specified premises; and the Commissioner may refuse to issue a licence or, by notice in writing, suspend, revoke or refuse to renew a licence on the grounds stated in the notice.

(2)

Applications for a licence under this section shall be in the prescribed form and shall be accompanied by the prescribed fee.

(3)

A licence issued under subsection (1) shall be subject to the payment of the prescribed annual fee and shall expire on the 31st December in each year.

(4)

The Commissioner may require the person applying for a licence to furnish such security as the Commissioner may think appropriate as a condition to the grant of the licence and the Commissioner may, at any time, require a licensee to furnish a new security in a different amount or on different terms.

(5)

No premises shall be used for manufacturing under bond unless there is in relation thereto a valid licence.

(6)

Any person who uses or permits premises to be used for manufacturing under bond without a licence, or a licensee who uses or permits his bonded factory to be used in contravention of the terms of his licence shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both; and any goods in respect to which an offence has been committed shall be liable to forfeiture.

58B.
Entry of premises as bonded factories
(1)

A licensee shall, before commencing to manufacture under bond, make entry in the prescribed form and in the prescribed manner of each building, room, place and item of plant in his factory which he proposes to use in the manufacture or storage of raw materials or manufactured goods; and, in each entry, he shall specify the purpose for which each building, room, place or item of plant is to be used.

(2)

A licensee shall not, in the course of manufacturing goods under bond—

(a)

make use of a building, room, place or item of plant in relation to which entry is required under this section unless there is, in respect thereof, a valid entry;

(b)

effect, without prior permission of the Commissioner, an alteration in shape, position or capacity to a building, room, place or plant.

58C.
Revocation of licence, etc.
(1)

Where the Commissioner suspends, revokes or refuse to renew a licence under section 58A(1), he shall serve or cause to be served, in writing, on the licensee a notice to that effect.

(2)

The notice referred to in subsection (1) may be served by delivering it to the licensee or by leaving it at the bonded factory or with the person in charge of the bonded factory and thereafter the notice shall be deemed to have been served.

58D.
Entry of plant, machinery, etc., for exportation or for home use
(1)

Where a manufacturer ceases to be licensed under section 58A, he shall enter and deliver for exportation or for removal to another bonded factory or for home use all the plant, machinery and equipment, raw materials or manufactured goods in the bonded factory within such time as the Commissioner may specify.

(2)

Where on the expiry of the time specified by the Commissioner under the subsection (1), the plant, machinery and equipment, raw materials or manufactured goods are not entered and delivered in accordance to the subsection (1), then the plant, machinery and equipment, raw materials or manufactured goods shall be liable to forfeiture.

58E.
Manufacturer to provide facilities

A manufacturer shall—

(a)

provide office accommodation and just weights, scales, measures and other facilities for examining and taking account of goods and for securing them as the proper officer may reasonably require;

(b)

keep a record of all types of plant, machinery and equipment, raw materials and goods manufactured therein and keep that record at all times available for examination by the proper officer;

(c)

provide all necessary labour and materials for the storing, examining, packing, marking, coopering, weighing and taking stock of the goods therein whenever the proper officer so requires.

(2)

Where a manufacturer contravenes any of the provisions of this section, the Commissioner may direct that the manufacturer shall cease operations until he has complied with those provisions to the satisfaction of the Commissioner.

(3)

A manufacturer who contravenes any of the provisions of this section or of a direction given by the Commissioner under this section shall be guilty of an offence.

58F.
Receipt and storage of raw materials and manufactured goods
(1)

All raw materials, whether imported or obtained locally, received in the bonded factory shall be stored in a room of which an entry for the purpose has been made in accordance with section 58B(1) and which shall be known as the raw materials stock room.

(2)

All manufactured goods shall, after the process of manufacture, be forthwith stored in a room of which entry for the purpose has been made in accordance with section 58B(1) and which shall be known as the manufactured goods stock room.

(3)

All the waste from the manufacturing process and all manufactured goods which are not of the required standards or specifications shall, after the process of manufacture, be forthwith stored in a room of which entry has been made for the purpose in accordance with section 58B(1) and which shall be known as the waste and rejects stock room.

(4)

A stock room shall not be used for any purpose other than the purpose for which entry has been made.

(5)

The raw materials and manufactured goods shall be stored in such a way as to facilitate the easy taking of their full account.

(6)

A licensee who contravenes this section shall be guilty of an offence and the raw materials or manufactured goods in respect of which an offence has been committed shall be liable to forfeiture.

58G.
Provisions relating to stock registers
(1)

A licensee shall keep in the prescribed manner—

(a)

a raw materials stock register and shall, each day, enter therein the particulars of all receipts and deliveries of all raw materials; and

(b)

a manufactured goods register and shall, each day, enter therein the particulars of all receipts and deliveries of all manufactured goods; and

(c)

a waste and rejects stock register and shall, each day, enter therein the particulars of all receipts and deliveries of all waste and rejects.

(2)

The stock registers shall be available for inspection by the proper officer at all times and the proper officer may take copies of any entry therein.

(3)

A licensee who contravenes the provisions of this section shall be guilty of an offence.

58H.
Manner of dealing with deficiencies and excesses in stock rooms
(1)

Whereupon the proper officer taking stock of the raw materials or manufactured goods in a bonded factory he establishes excesses or deficiencies which the licensee fails to account for to the satisfaction of the proper officer, the licensee shall be guilty of an offence and liable to—

(a)

a fine not exceeding one hundred thousand shillings or twice the ex-factory value (or c.i.f. value in respect of imports) of the deficiency or excess, whichever is the higher, or to imprisonment for a term not exceeding three years or to both; and the goods in respect of which an offence has been committed shall be liable to forfeiture; and

(b)

pay the full duties on the excesses or deficiencies.

(2)

Any licensee who, without the permission of the Commissioner, disposes of or allows to be disposed of raw materials or manufactured goods from a bonded factory, within the Kenyan local market, whether on payment or not, or any person who acquires, keeps, conceals or has in his possession such raw materials or manufactured goods from a bonded factory, shall be guilty of an offence and liable to a fine not exceeding two hundred thousand shillings or three times the ex-factory value of the raw materials or manufactured goods, whichever is the higher, or to imprisonment for a term not exceeding three years or to both; and the goods in respect of which the offence has been committed shall be deemed to be prohibited goods as from the date of such disposal or as acquisition.

58I.
Importation of equipment, machinery, raw materials, etc.
(1)

All items of plant, machinery, spares and imported raw materials for use in the manufacture of goods under bond, shall be duly entered and delivered to the bonded factory within such time and subject to such conditions as the Commissioner may prescribe; and if the goods described in this section are not so delivered, then, as from the date of importation, the plant, machinery, spares and raw materials shall be deemed to be prohibited goods, unless a satisfactory explanation is given to the proper officer to account for any delay.

(2)

All manufactured goods shall be duly exported or entered for home use within such time and subject to such conditions as the Commissioner may impose.

(3)

A manufacturer who contravenes this section shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or twice the ex-factory value (or c.i.f. value in respect of imports); whichever is the higher, or to imprisonment for a term not exceeding three years or to both; and the goods thereof shall be liable to forfeiture and, in addition, the Commissioner may revoke the licence issued under section 58A.

58J.
Provisions relating to goods in a bonded factory
(1)

Where goods are warehoused in a bonded factory the Commissioner may, subject to such conditions as he may impose, permit the name of the owner of the goods in the account taken under section 58G to be changed if application therefore is made in the prescribed form and signed by both the owner and the intended owner.

(2)

Where goods warehoused in a bonded factory are to be removed to another bonded factory, then the proper officer shall—

(a)

require the owner of the goods to deliver an entry thereof in such form and manner as the proper officer may direct;

(b)

require the owner to give security in such amount, not being less than the duty chargeable on the goods, as the proper officer may think fit for the due arrival and re-warehousing of the goods within such time as the proper officer may consider appropriate; and

(c)

transmit to the proper officer of the bonded factory where the goods are to be re-warehoused an account containing the particulars of the goods.

(3)

Security given under subsection (2) shall not be discharged unless—

(a)

the conditions attaching thereto have been satisfied;

(b)

the full duty payable on the goods has been paid in accordance with this Act; or

(c)

the goods are otherwise accounted for to the satisfaction of the proper officer, and any duties due in respect of any deficiency in the goods not so accounted for have been paid;

(4)

On arrival of the goods at the other bonded factory, a particular account of the goods shall be taken in accordance with section 58G.

58K.
Delivery from bonded factory in special circumstances
(1)

The Commissioner may, subject to such conditions as he may impose and to the giving of such security as he may think appropriate for the due return thereof, permit goods to be removed from a bonded factory without payment of duty for such purpose, for such period and in such quantities as he may think fit.

(2)

A person who contravenes any conditions imposed under subsection (1) shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or twice the ex-factory selling price (or c.i.f. value in respect of imports), whichever is the higher, or to imprisonment for a term not exceeding three years or to both and the goods thereof shall be liable to forfeiture.

58L.
Goods from bonded factory may be entered for home use

The Commissioner may, subject to such conditions as he may impose and on payment of the duties due, permit goods manufactured in a bonded factory, including waste from the manufacturing process, to be entered for home use.

PART V – EXPORTATION
59.
Prohibited and restricted exports
(1)

The goods specified in Part C of the Eighth Schedule are prohibited goods and the exportation thereof is prohibited.

(2)

The goods specified in Part D of the Eighth Schedule are restricted goods and the exportation thereof, save in accordance with any conditions regulating their exportation, is prohibited.

60.
Power to prohibit, etc., exports
(1)

The Minister may, by order in the Gazette, amend Part C or D of the Eighth Schedule.

(2)

The Minister may, by order in the Gazette

(a)

provide that the exportation of any goods or class of goods shall be prohibited or shall be prohibited save in accordance with conditions which may be specified;

(b)

limit the application of the provisions of the Eighth Schedule in respect of all or any of the goods specified therein,

and thereupon in respect of those goods the provisions of this Act shall apply as if the goods are, or are not, as the case may be, included in the Eighth Schedule.

(3)

Any order made under this section may specify goods, or any class of goods, either generally or in any particular manner, and may prohibit or restrict the exportation thereof either to all places, or to any particular country or place.

61.
Exemption of goods in transit, etc.
(1)

Subject to subsection (2), sections 59 and 60 shall not apply to goods in transit, or for transhipment, or exported as stores of an aircraft or vessel, unless the goods are goods of which the exportation as stores for an aircraft or vessel is expressly prohibited or restricted in an order made under this Act prohibiting or restricting the exportation of goods.

(2)

Where under subsection (1), sections 59 and 60 do not apply to goods in transit, or for transhipment, or exported as stores for an aircraft or vessel, then the goods shall be duly exported within such time and subject to such conditions as may be prescribed; and if the goods are not so exported, then, as from the last date on which they should have been so exported, they shall be deemed to be prohibited goods or restricted goods, as the case may be.

Entry Outwards and Loading of Aircraft and Vessels

62.
Entry outwards of aircraft or vessel
(1)

The master or agent of an aircraft or vessel in which goods are to be exported shall make entry outwards of the aircraft or vessel to the proper officer on the prescribed form and in the prescribed manner.

(2)

Save with the permission of the proper officer—

(a)

no such entry outwards of an aircraft or vessel shall be made before the whole of the cargo reported in the aircraft or vessel for discharge has been discharged;

(b)

no goods shall be loaded on the aircraft or vessel before the entry outwards is made.

(3)

A master or agent who contravenes subsection (1) and a master who permits goods to be loaded contrary to subsection (2) shall be guilty of an offence.

63.
Entry of cargo for export
(1)

Save as otherwise provided in this Act, the whole of the cargo to be loaded for export on an aircraft or vessel shall be entered by the owner of the cargo in the manner prescribed.

(2)

Where an owner delivers an entry under this section he shall furnish therewith to the proper officer full particulars, supported by documentary evidence, of the goods referred to in the entry.

(3)

A person who contravenes this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

64.
Loading, etc.
(1)

Subject to this Act, save with the written permission of the proper officer and subject to such conditions as he may impose—

(a)

no goods shall be put on board an aircraft or vessel departing to a foreign port or place unless the goods have first been duly entered;

(b)

no goods shall be put on board an aircraft or vessel departing to a foreign port or place at any time whatsoever except as prescribed by the Commissioner;

(c)

no goods shall be put on board an aircraft or vessel departing to a foreign port or place except from an approved place of loading or from a sufferance wharf:

Provided that—

(i) goods may be put on board an aircraft or vessel from another vessel on to which they had been put on board in order to be loaded on to the aircraft or vessel;
(ii) with the permission of the proper officer and subject to such conditions as he may impose, goods reported for transhipment may be loaded on to an aircraft or vessel from another aircraft or vessel;
(d)

no goods shall be put on board an aircraft or vessel departing to a foreign port or place before entry outwards of the aircraft or vessel;

(e)

no goods shall be put on board an aircraft or vessel to be loaded on to another aircraft or vessel departing to a foreign port or place if the goods may not, under the provisions of this subsection, be directly put on board that other aircraft or vessel;

(f)

all goods put on board an aircraft or vessel to be loaded on to another aircraft or vessel departing to a foreign port shall be so loaded within the limits of the port.

(2)

A person who contravenes this section, or any of the conditions which may have been imposed by the proper officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any goods in respect of which the offence has been committed shall be liable to forfeiture.

65.
Provisions relating to personal baggage, etc.
(1)

Notwithstanding section 64, the proper officer may, subject to any regulations, permit—

(a)

goods which are the bona fide personal baggage of the passengers, or members of the crew, of an aircraft or vessel to be put on board the aircraft or vessel and exported without entry;

(b)

goods intended for sale or delivery to passengers, or members of the crew, of an aircraft or vessel to be put on board the aircraft or vessel, subject to such conditions as he may impose, without entry;

(c)

mail bags and postal articles in the course of transmission by post to be put on board and exported without entry;

(d)

goods to be put on board an aircraft or vessel departing to a foreign port or place without entry subject to an application being made by the owner on the prescribed form and in the prescribed manner and to an undertaking being given by the owner of the goods to furnish the necessary entry within ninety-six hours, or such further time as the proper officer may specify, of the departure of the aircraft or vessel and to such security, if any, being given by the owner for the due payment of any export duties as the proper officer may consider appropriate.

(2)

A person who—

(a)

contravenes any conditions imposed under subsection (1)(b); or

(b)

contravenes any undertaking given under subsection (1)(d),

shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both; and the goods in respect of which the offence has been committed shall be liable to forfeiture.

66.
Goods for export not to be discharged in Kenya
(1)

No goods which have been put on board an aircraft or vessel for export, or for use as stores, or as passengers’ baggage, shall, save with the written permission of the proper officer and in accordance with such conditions as he may impose, be discharged at any place within Kenya.

(2)

A person who contravenes this section, or any conditions imposed by the proper officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding one hundred thousand shillings or to both; and the goods in respect of which the offences has been committed shall be liable to forfeiture.

67.
Provisions relating to export of certain goods
(1)

Before—

(a)

warehoused goods; or

(b)

goods on which drawback may be claimed; or

(c)

dutiable goods intended for transhipment; or

(d)

restricted goods; or

may be entered for exportation, for transhipment, or for use as stores for aircraft or vessels, the proper officer may require the owner of the goods to give security, in such amount and subject to such conditions as he may think fit, that the goods shall be duly put on board the aircraft or vessel for which they are entered and either duly exported to and discharged at the port or place for which they are so entered, or used as stores, as the case may be, within such time as he may specify.

(2)

All goods in respect of which security is required under the provisions of this section (in this section referred to as bonded goods) shall, after being put on board, be duly exported to and discharged at the port or place for which they are entered, or used as stores for aircraft or vessels, as the case may be.

(3)

The proper officer may require the owner of bonded goods which have been put on board an aircraft or vessel for exportation to any port or place to produce, within such time as the proper officer may consider reasonable, a certificate from the customs authorities at the port or place of discharge of the due discharge thereat of the goods according to the export entry; and if the owner fails to produce the certificate, or if the certificate does not show that the goods have been duly discharged thereat according to the export entry and the owner fails to account for any of the goods to the satisfaction of the proper officer, then the proper officer may refuse to allow the owner to enter for export and to export any other goods in respect of which security may be required under this section.

(4)

Where bonded goods—

(a)

are short-shipped, the owner thereof shall so notify the proper officer within twenty-four hours, or such further time as the proper officer may allow, of the departure of the aircraft or vessel;

(b)

have been removed from a warehouse for delivery on board an aircraft or vessel but are not put on board the aircraft or vessel, the owner thereof shall forthwith enter the goods for warehousing, or for exportation, or for use as stores for aircraft or vessels.

(5)

Where bonded goods are brought to a customs airport, customs area, or other place, to be put on board an aircraft or vessel and, on examination by the proper officer are found—

(a)

not to agree with the particulars of the entry thereof; or

(b)

being goods under drawback, not to be goods entitled to drawback,

then the owner of the goods shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

(6)

An owner who—

(a)

contravenes any condition imposed on him under this section in respect of bonded goods; or

(b)

contravenes subsection (4),

shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

(7)

Where a master contravenes, or causes or permits the contravention of, subsection (2), he shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

68.
Stores for aircrafts and vessels
(1)

The proper officer may, on application being made on the prescribed form and in the prescribed manner by the master or agent of an aircraft or vessel departing to a foreign port, permit goods to be put on board the aircraft or vessel for use as stores subject to the payment of any export duty and to such conditions as he may think fit.

(2)

A person who puts, or causes or permits to be put, goods on board an aircraft or vessel for use as stores in contravention of this section, or of any conditions imposed by the proper officer, shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

69.
Short-shipment of non-bonded goods
(1)

Where goods (other than bonded goods within the meaning of section 67) are entered for exportation and the goods are not exported in the aircraft or vessel for which they were so entered or are short-shipped, the owner thereof shall so notify the proper officer within forty-eight hours, or such further period as the proper officer may allow, of the departure of the aircraft or vessel.

(2)

An owner who contravenes this section shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings.

70.

Export goods stored at risk of owner

Where goods are, with the permission of the proper officer, stored in a transit shed or a customs area pending exportation or transhipment or while in transit, then—

(a)

they shall be subject to such rent and other charges as may be prescribed; and

(b)

notwithstanding section 13, they shall be so stored at the risk of the owner.

71.
Goods liable to export duty
(1)

Where goods are liable on export to duty, the amount of duty shall be stated on the export entry of the goods.

(2)

No goods liable on export to duty shall be exported until the export duty has been paid or security therefore given to the satisfaction of the proper officer.

(3)

Where goods liable on export to duty are brought to a customs airport, customs area or other place to be put on board an aircraft or vessel and, on examination by the proper officer, are found not to agree with the particulars of the entry, or application for shipment relating thereto, the owner of the goods shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

Transit or Transhipment Goods

72.
Goods in transit or for transhipment
(1)

Subject to sections 16 and 61 and to any regulations, the provisions of this Act relating to the importation, prohibition, restriction, entry, examination, landing, warehousing and exportation of goods shall, so far as they are applicable, apply to goods in transit to a foreign port or place.

(2)

The provisions of this Act relating to the importation, prohibition, restriction, entry, examination, landing, warehousing and exportation of goods shall, so far as they are applicable, apply to goods transhipped from the aircraft or vessel in which they are to be exported.

72A.
Licensing of transit godowns
(1)

The Commissioner may, on application by the owner, licence any premises, room or enclosed area as a transit godown for the deposit of goods imported in bulk entered in transit, and may refuse to issue a licence without assigning any reasons, or, by notice in writing, revoke or refuse to renew a licence on the grounds stated in the notice.

(2)

An application under subsection (1) shall be in such form and comply with such requirements as the Commissioner may, by notice in the Gazette, prescribe.

(3)

A licence under this section shall be issued subject to the payment of such fee as the Commissioner may, by notice in the Gazette, prescribe.

72B.

Storage of goods entered in transit

(1)

No person shall deposit goods entered in transit in any premises, other than a transit godown licensed under section 72A.

(2)

Goods may only be deposited in a transit godown where they are entered in transit and are—

(a)

imported in bulk in a solid, liquid or gaseous form;

(b)

of a class prescribed by the Commissioner by notice in the Gazette; or

(c)

of a class which the Commissioner has permitted, in writing, to be stored in a transit godown.

(3)

Any person who—

(a)

deposits goods in any premises; or

(b)

being the owner or occupier of any premises, uses such premises to deposit goods, or permits any other person to deposit goods,

contrary to the provisions of subsection (1) or (2), shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings, and in the case of a continuing offence, to a fine not exceeding five thousand shillings for every day or part thereof during which the offence continues.

PART VI – IMPORTATION AND EXPORTATION BY POST
73.
Application of Act to postal articles
(1)

This Act shall apply to the importation, exportation, and carriage coastwise, of postal articles:

Provided that—

(i) postal articles may be entered at such place and in such manner as the Commissioner may direct;
(ii) provision of this Act may, in its application to postal articles, be modified or adapted by regulations.
(2)

An officer, or an officer in the service of the Post Office, who, in the performance of a duty under this Act, examines or seizes a postal article shall be subject in all respects to this Act and the article shall be dealt with in accordance with this Act.

(3)

This section shall be in addition to, and not in derogation of, the provisions of the Postal Corporation of Kenya Act (Cap. 411).

[Act No. 7 of 2002, s. 4.]

74.
Time of entry of postal articles

In the case of goods—

(a)

imported by post, the time of entry of the goods for home use shall, except in the case where actual entry is required, be deemed to be the time when the duty thereon is assessed by the proper officer;

(b)

exported by post, the time of entry of the goods for export shall be deemed to be the time of the posting of the goods.

PART VII – DEPARTURE AND CLEARANCE OF AIRCRAFT AND VESSELS, AND DEPARTURE OVERLAND
75.
Clearance required for departure to foreign port
(1)

No aircraft or vessel, whether laden or in ballast, shall depart from a port or place in Kenya to a foreign port or place unless a certificate of clearance has been granted in respect of the aircraft or vessel.

(2)

The master or agent of a vessel or aircraft which departs from a port or place within Kenya in contravention of subsection (1) shall be guilty of an offence.

76.
Grant of clearance
(1)

The master or agent of an aircraft or vessel, whether laden or in ballast, proposing to depart to a foreign port or place shall apply to the proper officer for a certificate of clearance.

(2)

Where application for a certificate of clearance is made, then the proper officer shall not grant the certificate of clearance until he is satisfied that all the provisions of this Act in relation to the aircraft or vessel, its cargo, stores, baggage, crew and passengers have been complied with:

Provided that the proper officer may, by reason of the provisions of any other law, refuse to grant the certificate of clearance notwithstanding that he may be satisfied that this Act has been complied with.

(3)

Where the master or agent of an aircraft, or of a vessel of less than two hundred and fifty tons register, makes application for a certificate of clearance, then he shall at the same time—

(a)

deliver to the proper officer an outward manifest on the prescribed form and in the prescribed manner;

(b)

produce to the proper officer all documents which he may require relating to the aircraft or vessel and its cargo, stores, baggage, crew and passengers;

(c)

answer all questions which the proper officer may ask relating to the aircraft or vessel and its cargo, stores, baggage, crew and passengers.

(4)

Where the master or agent of a vessel of two hundred and fifty tons register or more makes application for a certificate of clearance then the proper officer may grant clearance subject to an undertaking by the master or agent to deliver to the proper officer, within twenty-four hours of the grant of the certificate of clearance, the outward manifest of the vessel in the prescribed form and in the prescribed manner, and to answer all questions which he may be asked relating to the vessel, its cargo, stores, baggage, crew and passengers.

(5)

Where an aircraft or vessel proposes to depart to a foreign port in ballast, then the aircraft or vessel shall be cleared in ballast, that is to say, the words “in ballast” shall be written in those parts of the form relating to the aircraft or vessel which contain provisions for the particulars of its cargo; and for the purpose of this subsection, an aircraft or vessel shall be deemed to be in ballast when the aircraft or vessel carries, in addition to the crew and its stores, only passengers and their bona fide personal baggage.

(6)

The proper officer may permit the master or agent of an aircraft or vessel to amend an obvious error in the outward manifest, or to supply an omission which, in the opinion of the proper officer, results from accident or inadvertence, by furnishing an amended or supplementary outward manifest in the prescribed manner.

(7)

Where a certificate of clearance has been granted but the aircraft or vessel in respect of which it was granted has not left the limits of the port in which it was granted, then the proper officer may inform, either orally or in writing the master of the aircraft or vessel that the certificate of clearance has been cancelled and may require the return of the certificate, and thereupon the certificate shall be deemed never to have been granted.

(8)

A master or agent who contravenes an undertaking given under subsection (4), or who refuses to return a certificate of clearance when so required to do under subsection (7), shall be guilty of an offence.

77.
Clearance to be produced
(1)

The proper officer may board an aircraft or vessel in Kenya after clearance and require the master thereof to produce his certificate of clearance and to answer questions relating to the aircraft or vessel, its cargo, stores, baggage, crew and passengers.

(2)

The master of an aircraft or vessel who fails to produce the certificate of clearance on demand shall be guilty of an offence.

78.
Deficiency or surplus in cargo or stores
(1)

Where, on an aircraft or vessel being boarded by the proper officer, goods or stores which are not contained in the manifest of the aircraft or vessel are found on the aircraft or vessel, then the master thereof shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

(2)

Where, on an aircraft or vessel being boarded by the proper officer, goods which were reported on the arrival of the aircraft or vessel as remaining on board for other ports in Kenya, or for re-exportation, or as stores, or which after arrival were put on board for removal under bond to, another port in Kenya, or for exportation or use as stores, are not on board, due allowance being made in the case of stores for goods which might fairly have been consumed or used, then the master of the aircraft or vessel shall be guilty of an offence.

(3)

Where, on an aircraft or vessel being boarded by the proper officer after its return to Kenya from a voyage to a foreign port or place, goods which on the previous arrival of the aircraft or vessel were reported as stores or were then put on board as stores are not on board, due allowance being made for goods which might fairly have been consumed or used, the master of the aircraft or vessel shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and in addition, the master shall be liable to pay the duty on the deficiency of the goods at the rate chargeable on the importation of similar goods.

79.
Aircraft or vessels to bring to at boarding station
(1)

The master of an aircraft or vessel departing to a foreign port shall bring to at the boarding station for the purpose of disembarking any officer on the aircraft or vessel, or for any other purpose of this Act, or when required so to do by the proper officer.

(2)

A master of an aircraft or vessel who contravenes this section shall be guilty of an offence.

Departure Overland

80.
Departure overland
(1)

A person, whether or not in charge of a vehicle and whether or not the vehicle may be conveying goods which are dutiable, departing overland from Kenya shall not, except where otherwise permitted by the proper officer, depart from Kenya at a place other than from a port or place appointed under section 9 and shall before departing—

(a)

report his intended departure to the officer stationed at the port nearest to the point at which he proposes to cross the frontier;

(b)

furnish on the prescribed form such information as may be required concerning any vehicle and goods;

(c)

make and subscribe a declaration as to the truth of all particulars contained in the form;

(d)

fully and immediately answer all relevant questions put to him by the proper officer;

(e)

produce all consignment notes or other relevant documents demanded of him by the proper officer;

(f)

save as otherwise provided in this Act, make due entry of any vehicle and goods.

(2)

The proper officer may stop and question any person, whether or not he has goods in his possession, appearing to be about to depart overland from Kenya, and the person shall thereupon fully and immediately answer all relevant questions concerning his movements and any goods in his possession as may be put to him.

(3)

No vehicle or goods to which this section applies shall except under and in accordance with the terms of permission granted by the proper officer, be removed across the frontier until after due entry thereof has been made.

(4)

The Commissioner may, subject to such conditions as may be specified, exempt any person or class of persons from the provisions of this section.

(5)

A person who contravenes any of the provisions of this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

PART VIII – CARRIAGE OF GOODS COASTWISE
81.
Meaning of carriage coastwise

Subject to section 82, all goods conveyed by air, sea or inland waterways from a part of Kenya to another part thereof shall be deemed to be carried coastwise, and an aircraft or vessel conveying the goods shall be deemed to be a coasting aircraft or coasting vessel, as the case may be.

[Act No. 13 of 1979, s. 2.]

82.
Carriage coastwise in aircraft or vessel from foreign port
(1)

When an aircraft or vessel carrying cargo arrives at a port or place in Kenya from a foreign port or place, then the proper officer may permit the aircraft or vessel to carry goods coastwise from that port or place to another port or place within Kenya upon the presentation by the master of a declaration as set out in section 84.

(2)

When an aircraft or vessel to which subsection (1) applies conveys goods from one port of Kenya to another port thereof, the aircraft or vessel shall not by virtue thereof be deemed to be a coasting aircraft or coasting vessel within the meaning of this Act.

(3)

When goods are carried coastwise under the provisions of this section, then the loading, unloading and delivery thereof shall be subject to any regulations and to such conditions as the Commissioner may impose.

83.
Loading, etc., of coastwise cargo
(1)

Subject to this Act, save with the written permission of the proper officer and subject to such conditions as he may impose—

(a)

no goods shall be loaded from an aircraft or vessel for carriage coastwise at any time whatsoever except as prescribed by the commissioner;

(b)

no goods for carriage coastwise shall be loaded on to, or unloaded from, an aircraft or vessel, except at an approved place of loading or at a sufferance wharf:

Provided that goods may be loaded on to, or unloaded from, an aircraft or vessel, from or on to another vessel or vehicle used for the purpose of the carriage of goods between that aircraft or vessel and an approved place of landing or sufferance wharf;

(c)

all goods which have been unloaded or landed from a coasting aircraft or vessel shall, if the proper officer so requires, be conveyed forthwith to a customs area or transit shed.

(2)

A person who contravenes this section, or any of the conditions which may have been imposed by the proper officer, shall be guilty of an offence and shall be liable to a fine not exceeding forty thousand shillings; and any goods in respect of which the offence has been committed, shall be liable to forfeiture and the coasting aircraft or coasting vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

84.
Transire required for departure coastwise
(1)

No coasting aircraft or coasting vessel, nor an aircraft or vessel which is carrying goods coastwise in accordance with section 82, shall depart from a port or place within Kenya unless a transire has been granted by the proper officer.

(2)

The master or agent of an aircraft or vessel to which subsection (1) applies proposing to depart coastwise, shall deliver to the proper officer an account in triplicate on the prescribed form containing the particulars of all cargo taken on board for carriage coastwise; and the original thereof, dated and signed by the proper officer, shall constitute the grant of a transire for the carriage of the goods specified therein and shall, in the case of a coasting aircraft or coasting vessel be the certificate of clearance for the aircraft or vessel for the coastwise voyage.

(3)

A master or agent who contravenes this section, or who delivers an account of which any of the particulars contained therein is false, shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings and the coasting aircraft or coasting vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

85.
Transire to be delivered on arrival
(1)

The master or agent of an aircraft or vessel, arriving at a port or place within Kenya carrying goods coastwise—

(a)

shall forthwith deliver the transire to the proper officer of that port or place;

(b)

shall not, save with the permission of the proper officer and subject to such conditions as he may impose, permit goods to be unloaded before the delivery of the transire:

Provided that in the case of a vessel of two hundred and fifty tons register or more, the transire may be delivered within twenty-four hours of arrival and the goods may be unloaded therefrom before the delivery of the transire.

(2)

A master or agent who contravenes this section shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture, and the coasting aircraft or coasting vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

86.
Power of Commissioner to vary procedure
(1)

Notwithstanding this Act, the Commissioner may permit a coasting aircraft or coasting vessel to be loaded, unloaded and cleared subject to such conditions as he may in any particular case impose.

(2)

The master or agent of a coasting aircraft or coasting vessel who contravenes any conditions imposed by the Commissioner under this section shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture, and the aircraft or vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

87.
Entry outwards of aircraft, etc. carrying goods coastwise

The Commissioner may, subject to such conditions as he may impose, permit the master or agent of an aircraft or vessel carrying goods coastwise to enter outwards the aircraft or vessel and to enter goods carried coastwise therein for exportation without discharging the goods.

88.
Coasting vessel, etc., not to deviate from voyage

The master or agent of a coasting aircraft or coasting vessel—

(a)

which deviates from its voyage, unless forced to do so by circumstances beyond the control of the master, the proof whereof shall lie on the master; or

(b)

which, having deviated from its voyage or having taken on board a wreck or other goods or discharged goods in the course of a voyage, does not forthwith proceed directly to the nearest port or place in Kenya and explain the circumstances thereof to the satisfaction of the proper officer and deliver the wreck or other goods taken on board to proper officer,

shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture, and the aircraft or vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

89.
Examination of coasting aircraft, coasting vessel and goods
(1)

An officer may go on board a coasting aircraft or coasting vessel in any port or place or at any period of its voyage and search it and examine all goods on board.

(2)

Where an officer goes on board a coasting aircraft or coasting vessel, he may require the master or agent thereof to answer questions concerning the aircraft or vessel, its cargo, stores, baggage, crew and passenger’s and to produce any books and documents which are, or should be, on board.

(3)

An officer may examine goods which have been unloaded from an aircraft or vessel after carriage coastwise or which are brought to a port or place to be loaded on to an aircraft or vessel for carriage coastwise; and for the purposes of the examination the officer may require the owner of the goods to unpack or open them and to repack them at the expense of the owner.

(4)

A master or agent who, under this section—

(a)

refuses to answer a question or to produce books or documents; or

(b)

makes an incorrect reply to a question,

shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and the aircraft or vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

PART IX – MANUFACTURE OF EXCISABLE GOODS
90.
Licence required to manufacture excisable goods
(1)

No person shall manufacture excisable goods unless he is licensed by the Commissioner to manufacture them.

(2)

Notwithstanding the provisions of this Act, no licence shall be issued for the manufacture of plastic bags of less than thirty microns:

Provided that the Commissioner may license a person to manufacture plastic bags of not less than—

(a)

10 microns, if satisfied that such bags are for export; or

(b)

20 microns, if satisfied that such bags are for packing and packaging.

(2A)

The licences required under subsection (2) shall be valid for a renewable period of one year.

(3)

A person who contravenes this section shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant or excisable goods, or any materials, in respect of which offence has been committed shall be liable to forfeiture.

91.
Application for and grant of licence
(1)

Subject to this Act, the Commissioner may on application grant a licence to a person to manufacture excisable goods; and the Commissioner may, refuse to grant the application and shall furnish the applicant with the reasons for such refusal.

(2)

A separate application shall be required in respect of—

(a)

each factory in which excisable goods are to manufactured;

(b)

each class of excisable goods to be manufactured.

(3)

An application under subsection (1) shall be in such form and subject to such requirements as the Commissioner may, by notice in the Gazette, prescribe.

(3A)

The Commissioner shall consider every application received under this section and shall serve the applicant with a notice of his decision within thirty days of the receipt of the application:

Provided that where the Commissioner fails to communicate his decision in accordance with this subsection, the application shall be deemed to have been granted.

(4)

Where the Commissioner has granted an application for a licence under this section he shall—

(a)

on the payment of the prescribed fee by the applicant issue the licence in the prescribed form; and

(b)

subject to section 93, on the application and payment of the prescribed fee, issue a renewal of the licence.

(5)

A licence under this section shall be issued to a particular person and shall be in respect of the factory and class or classes of excisable goods specified in the licence, and—

(a)

the licensed factory shall not be used except for the manufacture of excisable goods specified in the licence; and

(b)

only the licensee shall manufacture goods in the licenced factory.

(6)

Notwithstanding the provisions of subsection (5), the goods specified in each of the following paragraphs shall be regarded as one class of excisable goods for the purposes of that subsection—

(i) cigarettes, cigars and manufactured tobacco;
(ii) perfumery, cosmetic or toilet preparations.
(7)

A person who contravenes subsection (5) shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant or excisable goods or any materials in respect of which the offence has been committed shall be liable to forfeiture.

(8)

A licence issued under this section shall be subject to such conditions as the Commissioner may, by notice in the Gazette, prescribe.

(9)

A licensee who contravenes a condition of the licence, or who allows any other person to contravene a condition of the licence, shall be guilty of an offence and liable to a fine not exceeding one million five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

[Act No. 10 of 1980, s. 2, Act No. 8 of 1991, s. 6, Act No. 13 of 1995, s. 29, Act No. 15 of 2003, s. 7, Act No. 4 of 2004, s. 10, Act No. 57 of 2012, s. 2, Act No. 38 of 2013, s. 3.]

91A.
Packing or selling of alcoholic beverages
(1)

No person shall pack or sell an alcoholic beverage in a container the capacity of which is less than two hundred millilitres.

(1A)

For the avoidance of doubt, the container referred to in subsection (1) shall either be a glass or PET (polyethylene terephthalate) bottles or wooden or metallic containers.

(2)

A person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

[Act No. 4 of 2004, s. 11, Act No. 8 of 2009, s. 3, Act No. 10 of 2010, s. 3, Act No. 10 of 2013, s. 2, Act No. 38 of 2013, s. 4.]

92.
Transfer of licence
(1)

A licensee may apply to the Commissioner—

(a)

to transfer his licence to another person; and in that case the other person shall join in the application;

(b)

to transfer his factory to another place;

(c)

to manufacture another class of excisable goods in his factory on his ceasing to manufacture in that factory the class of excisable goods specified in the licence,

and the Commissioner may grant or, refuse to grant any such application and shall furnish the applicant with the reasons for such refusal.

(2)

An application under this section shall be made to the Commissioner on the prescribed form.

(3)

Where he has granted an application under this section, the Commissioner shall, on surrender of the existing licence and on payment of the prescribed fee, if any, make the necessary endorsement thereon or issue a fresh licence, as he may think most convenient.

[Act No. 38 of 2013, s. 5.]