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PART I – PRELIMINARY
| 1. |
Short title
This Act may be cited as the Explosives Act.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
"authorized explosive" means any explosive specified in the Schedule, and any other explosive which the Cabinet Secretary may declare, by notice in the Gazette, to be an authorized explosive;
"blasting material" means any explosive used for the purpose of blasting;
"Commissioner" means the Director of Mines appointed under the Mining Act (Cap. 306);
"danger building" means any building or part thereof used as an explosives factory or explosives magazine or in connection therewith, other than a building or part thereof in which no material of an explosive nature is made, used or kept, in respect of which—
| (a) |
the licence clearly indicates that it does not constitute a danger building; or
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| (b) |
a certificate has been granted by an inspector to the effect that it does not constitute a danger building;
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| (a) |
gunpowder, nitro-glycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those herein mentioned or not, which is used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect;
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| (b) |
any fuse, rocket, detonator or cartridge, and every adaptation or preparation of an explosive as herein defined; or
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| (c) |
any other substance which the Cabinet Secretary may, by notice in the Gazette, declare to be an explosive,
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but does not include ammunition as defined in the Firearms Act (Cap. 114.);
"explosives factory" means any site licensed under this Act for the manufacture of any explosives, together with every mound, building (including an explosives magazine), and work thereon for whatsoever purpose used;
"explosives magazine" means any building licensed under this Act for the storage of explosives;
"inspector", unless otherwise qualified, means a chief inspector or an inspector of explosives, or any person deputed to act as an inspector under section 3;
"manufacture" means the making and division of any explosive from or into its component parts by any process, the conversion of an explosive into an explosive of another kind, and the alteration, fitting for use or repair of, any explosive;
"Cabinet Secretary" means the Cabinet Secretary responsible for mining;
"premises" means any land, road, harbour, river, building, structure, ship, boat or other vessel, or any part thereof, or any tent, railway truck, motor vehicle, cart, van or other vehicle;
"the rules" means rules made and in force under this Act;
"unauthorized explosive" means any explosive which is not an authorized explosive.
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| 3. |
Appointment of inspectors
| (1) |
There shall be a chief inspector of explosives and such other inspectors of explosives and such other officers as may be necessary (under whatever title as may from time to time be determined) for the purposes of this Act.
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| (2) |
The Commissioner may depute other persons to act as inspectors in certain localities and for certain purposes; and in so far as any such person is authorized so to act he shall have the same powers and be subject to the same duties as are conferred and imposed upon inspectors by this Act.
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PART II – MANUFACTURE OF EXPLOSIVES
| 4. |
Restriction of manufacture of unauthorized explosives
| (1) |
No person shall manufacture any unauthorized explosive unless—
| (a) |
it is manufactured solely for the purposes of chemical experiment and not for sale, and in quantities not exceeding five hundred grams in weight at any one time, or two kilograms in all; or
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| (b) |
it is manufactured solely for practical trial as an explosive and not for sale, and in such quantities and under such conditions as may be specified in writing by an inspector.
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| (2) |
Any person who contravenes the provisions of this section or any conditions imposed under the powers thereof shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or, in default of payment, to imprisonment for a term not exceeding two years, and the explosive in respect of which the contravention has taken place shall be forfeited.
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| (3) |
The owner and the occupier of any premises in or on which an unauthorized explosive has been manufactured in contravention of this section shall be deemed to be the manufacturer, unless such owner or occupier (as the case may be) satisfies the Court before which he is charged that he was unaware that any such contravention was occurring or had occurred.
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| (4) |
The burden of proving that any manufacture of an unauthorized explosive was solely for purposes of chemical experiment or practical trial and not for sale shall, in any prosecution under this section, be upon the accused.
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| 5. |
Restriction of manufacture of authorized explosives
| (1) |
No person shall manufacture any authorized explosive in any place other than an explosives factory.
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| (2) |
Any person who contravenes this section shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or, in default of payment, to imprisonment for a period not exceeding two years, and the explosive in respect of which any such contravention has taken place shall be forfeited.
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PART III – STORAGE OF EXPLOSIVES
| 6. |
Restriction of storage or possession of unauthorized explosives
| (1) |
No person shall keep, store or be in possession of any unauthorized explosive—
| (a) |
unless it has been manufactured as provided by section 4(1)(a), and does not exceed two kilograms in weight; or
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| (b) |
unless it has been manufactured as provided by section 4(1)(b), and is kept, stored or possessed in such manner and in such quantities as have been approved in writing by an inspector.
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| (2) |
Subsections (2), (3) and (4) of section 4 shall apply mutatis mutandis in the event of any contravention of this section or of any of the conditions imposed thereunder.
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| 7. |
Restriction of storage or possession of authorized explosives
| (1) |
No person shall keep, store or be in possession of any authorized explosive in or on any premises—
| (a) |
except in an explosives factory or explosives magazine; or
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| (b) |
unless the explosive is kept for private use, and not for sale or other disposal, and in accordance with rules; or
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| (c) |
unless the explosive is kept for use in the construction of any railway, road or other public work, in quantities not exceeding two thousand five hundred kilograms in weight, and is stored in a temporary magazine approved by an inspector and under conditions specified in writing by an inspector; or
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| (d) |
unless the explosive is kept in quantities not exceeding five hundred kilograms in weight, and is stored in an isolated place approved by an inspector and under conditions specified in writing by an inspector; or
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| (e) |
unless the explosive is kept by a person in possession of a licence, as provided in section 8, to deal in explosives, and in accordance with any conditions attached to that licence or prescribed by the rules.
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| (2) |
Any person who contravenes the provisions of this section or any condition imposed or prescribed thereunder or mentioned therein shall be guilty of an offence and liable to a fine not exceeding three thousand shillings, or, in default of payment, to imprisonment for a term not exceeding one year, and the explosive in respect of which the contravention has taken place shall be forfeited.
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| (3) |
The owner and the occupier of any premises in, at or on which any contravention of this section has occurred shall be guilty of an offence and liable to the penalties prescribed for any such contravention, unless such owner or occupier (as the case may be) satisfies the Court before which he is charged that he was unaware that any such contravention was occurring or had occurred.
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PART IV – Licensed Dealers in Explosives
| 8. |
Licence necessary to deal in explosives
| (1) |
No person, other than the manufacturer, shall sell, deal in or dispose of any explosive unless he is in possession of a licence granted under this Act.
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| (2) |
For the purposes of this section, a manager, as defined in the Mining (Safety) Regulations (Cap. 306, Sub. Leg), who in outlying districts and in accordance with rules supplies other consumers, shall not be deemed to be a dealer, unless he sells at a profit.
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| (3) |
Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or, in default of payment, to imprisonment for a term not exceeding one year.
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| 9. |
Permit necessary to acquire blasting materials
| (1) |
No person shall purchase or otherwise acquire blasting materials except under the authority of, and to the extent authorized in, a written permit issued by an inspector.
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| (2) |
No person shall sell or dispose of blasting materials to any person who fails to produce at the time of the transaction a permit of the type referred to in subsection (1) nor shall any person sell or dispose of any such materials in excess of the quantity referred to in such permit.
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| (3) |
Any person who contravenes this section shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or, in default of payment, to imprisonment for a term not exceeding one year.
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PART V – IMPORTATION, EXPORTATION AND USE OF EXPLOSIVES
| 10. |
Prohibition of importation and exportation of explosives without permit
No person shall import or export, or cause to be imported or exported, any explosive, unless he has obtained a permit issued, in the case of blasting materials, under the authority of an inspector, or, in the case of other explosives, by any person authorized by the Commissioner to issue such a permit.
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| 11. |
Prohibition of use of blasting materials without permit
| (1) |
No person shall use, or cause to be used, any blasting materials—
| (a) |
at a depth of ten metres or more, measured from the surface along or down a shaft, adit, well or tunnel, unless he is in possession of a valid miner’s blasting certificate issued to him under the Mining Act (Cap. 306), or is under the immediate supervision of the holder of such a certificate; or
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| (b) |
in all other cases, unless he is in possession of a valid miner’s blasting certificate issued to him under the Mining Act (Cap. 306) or of a valid permit issued to him for such purpose by an inspector, who is hereby authorized so to do, or unless he is under the immediate supervision of a person in possession of either such a certificate or permit.
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| (2) |
No permit shall be issued unless the issuing authority is satisfied that the applicant may be safely entrusted with the use of blasting materials, and that there is necessity for his using the same.
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| (3) |
The Commissioner may, in his discretion, at any time, by order revoke a permit issued under this section or under section 10, if he is satisfied that good cause for such revocation exists.
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| (4) |
Any person dissatisfied by an order of revocation made by the Commissioner under this section may appeal against such order to the Cabinet Secretary, whose decision shall be final.
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| 12. |
Penalties
Any person who contravenes sections 10 and 11 shall be guilty of an offence and liable to a fine not exceeding three thousand shillings, in default of payment, to imprisonment for a term not exceeding one year.
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PART VI – MOVEMENT OF EXPLOSIVES WITHIN KENYA
| 13. |
Prohibition of conveyance of explosives without permit
| (1) |
No person shall convey explosives or cause them to be conveyed within Kenya, except under and in accordance with a permit in writing issued by an inspector:
Provided that—
| (i) |
this section shall not apply to safety fuses, percussion caps or fireworks; |
| (ii) |
no permit shall be required for the conveyance of explosives within any land or property belonging to or occupied by the person conveying, or authorizing the conveyance of the explosives. |
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| (2) |
Any person who contravenes the provisions of this section, or of any permit issued under this section, shall be guilty of an offence and liable to a fine not exceeding two thousand shillings or, in default of payment, to imprisonment for a term not exceeding six months.
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PART VII – LICENSING OF FACTORIES AND EXPLOSIVES MAGAZINES
| 14. |
Application for licence to erect factory
| (1) |
Every person who desires to erect or establish any factory for the manufacture of explosives shall make application in writing to the Commissioner accompanied by a draft licence together with diagrams or plans of the proposed factory, on such scale or scales as the Commissioner may require, and the application shall set forth and specify—
| (a) |
the situation and extent or area of the land on which it is proposed to erect the factory, together with the area of land surrounding the same which it is proposed to leave free of buildings;
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| (b) |
the several distances which it is proposed to maintain between the several danger buildings respectively, and between those danger buildings and other buildings or works used in connection with the factory;
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| (c) |
the materials to be used in, and the mode of construction of, all danger buildings and works on, in or used in connection with the factory;
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| (d) |
the nature of the processes of manufacture to be used in the factory, the place at which each process of manufacture and every description of work is intended to be carried on in the factory and the places on or in which it is proposed to keep in store any ingredients of explosives or other articles liable to spontaneous ignition or combustion or otherwise dangerous;
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| (e) |
the quantity of explosives, or of any partly or wholly mixed ingredients thereof, which it is proposed to use simultaneously in or near any building or in or near any machine;
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| (f) |
the maximum number of persons of each race which it is proposed to employ in each danger building in the factory;
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| (g) |
any further particulars which the Commissioner may require, having regard to any special circumstances arising from the locality or construction of any buildings or works, or to the nature of any process to be carried on therein.
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| (2) |
The Commissioner may refuse any such application or direct that a public inquiry be held, as is provided in section 15, as to the expediency of granting the application.
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| (3) |
Any person dissatisfied by a decision of the Commissioner under this section may appeal against such decision to the Cabinet Secretary, whose decision shall be final.
[Act No. 30 of 1953, ss. 3 and 13, L.N. 342/1956, L.N. 172/1960, L.N. 761/1963.]
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| 15. |
Notice of inquiry into expediency of granting of licence, and objections
| (1) |
In the event of the Commissioner directing that such an inquiry as aforesaid be held, he shall cause a notice to be published at the cost of the applicant, stating that application has been made under this Act for the grant of a licence to erect a factory for the manufacture of explosives, describing as far as possible the proposed site of the factory, and stating that a commission will sit to hear any objections to the grant of such a licence, and the date, time and place on or at which that commission will sit to hear the application.
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| (2) |
The notice shall be published once a week, during three consecutive weeks, in the Gazette and in one or more newspapers circulating in the district in which it is proposed to erect or establish the factory, and the commission shall not sit till the expiration of at least one week from any last publication of the notice.
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| (3) |
The local authority having jurisdiction in an area in which, or within two kilometres of which, is situate the site of the proposed factory, and any person residing or carrying on business within a like distance, or any person who can show a substantial interest in opposing the grant of a licence, may, either individually or jointly with others, lodge an objection in writing to the grant of any such licence with the chairman of the commission not later than seven days before the sitting of the commission.
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| (4) |
Every applicant for a licence or objector thereto may appear before the commission in support of his application or objection, either in person or by a deputy authorized thereto in writing by the applicant or objector.
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| 16. |
Constitution, powers and duties of commission
The commission shall consist of an inspector (who shall be the chairperson of the commission) and two other persons appointed for the purpose by the Commissioner, and it shall, as soon as may be after the conclusion of its sitting, make a report to the Commissioner, with such recommendations as it may think fit.
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| 17. |
Powers of Commissioner to grant or refuse licence
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Upon consideration of the report and recommendations of the commission, the Commissioner may refuse the application for a licence, or may grant the application with or without modifications and conditions.
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| (2) |
Any person dissatisfied by a decision of the Commissioner under this section may appeal against such decision to the Cabinet Secretary, whose decision shall be final.
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| 18. |
Issue of licence
Any licence under this Act to erect, establish and maintain a factory for the manufacture of explosives shall, if granted, be issued by the Commissioner on payment of a sum of two thousand shillings:
Provided that no explosive shall be manufactured until the chief inspector of explosives is satisfied that the premises in respect of which the licence has been granted are in a sufficiently complete state to enable the provisions of this Act and rules to be carried out and complied with in all respects.
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| 19. |
Amendment of licence
Any licence or the conditions thereof may, upon application, be amended by the Commissioner, who shall not consent to the amendment except upon a report by an inspector that the safety of the public or of any person employed in or at the licensed factory will not be thereby diminished:
Provided that no such amendment shall be inconsistent with this Act or the rules.
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| 20. |
Transfer of licence
| (1) |
Any licence may be transferred into the name of another person:
Provided that four weeks’ notice in writing of a desire to transfer shall be sent to the Commissioner, who shall not refuse such a transfer except on the ground that the proposed transferee is not a suitable person to hold such a licence.
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| (2) |
Any person dissatisfied by a decision of the Commissioner under this section may appeal against such decision to the Cabinet Secretary, whose decision shall be final.
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| 21. |
Revocation of licence, and lapse of same
| (1) |
The Commissioner may revoke any licence issued under section 18.
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| (2) |
Every licence shall ipso facto expire if the holder thereof has ceased to carry on, for a period of one year, any work authorized by the licence, and shall become void if the premises in respect of which the licence was granted have been used for any trade or work not authorized by the licence.
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| (3) |
Any person dissatisfied by a decision of the Commissioner under this section may appeal against such decision to the Cabinet Secretary, whose decision shall be final.
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| 22. |
Application for licence to erect or use explosives magazine
| (1) |
Any person desiring to erect or carry on a magazine for the storage of explosives shall make application for a licence for the same to an inspector, who may grant such a licence, subject to the observance of the rules and after consultation with the local authority, if any, and upon such other conditions as he may think fit to attach to the licence.
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| (2) |
Sections 19, 20 and 21 shall apply mutatis mutandis in respect of any licence granted under this section.
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| 23. |
Penalty for unlicensed factory or magazine
Any person who establishes, erects, maintains or uses a factory for the manufacture of explosives, otherwise than in accordance with a valid licence issued under this Act, shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or, in default of payment, to imprisonment for a term not exceeding twelve months.
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PART VIII – POWERS OF INSPECTORS
| 24. |
Powers of inspectors to enter and inspect premises
It shall be lawful for any inspector—
| (a) |
to enter any explosives factory or explosives magazine at any hour of the day or night for the purpose of inspecting the same and of making inquiries relative to the compliance with this Act and the rules, or relative to the means used therein for preserving the safety of the public or of any person employed therein;
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| (b) |
to enter at any hour of the day or night upon any premises in which explosives are kept, or in which there is good reason to suspect that explosives are being manufactured or stored or kept or conveyed in contravention of this Act or the rules, and to inspect any such premises and to make all such inquiries thereon as he may think fit;
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| (c) |
to require the occupier or other person for the time being in charge of any explosives factory, explosives magazine or other premises in this section mentioned, to furnish for purposes of analysis or test samples of explosives or ingredients of explosives or any substance found therein or suspected of being an explosive or an ingredient of an explosive:
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Provided that no such powers as are conferred by this section shall be so exercised as unnecessarily to hinder the work carried on in any such factory, magazine or premises aforesaid.
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| 25. |
Penalties for obstructing inspector or refusing to answer inquiries, etc.
Any person who wilfully obstructs or hinders any inspector in the exercise of the powers or duties conferred or imposed upon him by this Act or the rules, or disobeys any lawful order of an inspector, or who upon demand fails to answer as far as he may be able any question lawfully put by an inspector, or who gives false information to an inspector, whether in answer to any such question or not, shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or, in default of payment, to imprisonment for a term not exceeding one year.
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| 26. |
Power to stop dangerous methods
| (1) |
If an inspector finds any method of work, storage, packing or use in connection with explosives to be in conflict with this Act or the rules, or to be in his opinion dangerous to the public security or to the safety of any person, he may in his discretion—
| (a) |
confiscate and remove the explosives;
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| (b) |
by order in writing require the immediate discontinuance of such method;
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| (c) |
by order in writing require such remedial measures to be taken as in his opinion are necessary.
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| (2) |
Any person who is dissatisfied with a confiscation or requisition done or made under this section may within thirty days thereof appeal to the chief inspector of explosives, who shall give his decision thereon with the least possible delay.
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| (3) |
If an appellant is dissatisfied with a decision of the chief inspector of explosives given under this section he may within thirty days of such decision appeal therefrom to the Cabinet Secretary, whose decision shall be final.
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| (4) |
The provisions of this section shall be without prejudice to any prosecution.
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| 27. |
Duty of occupier of a factory to make special rules
| (1) |
Every occupier of a factory shall, subject to the approval of the chief inspector of explosives, make special rules, not inconsistent with this Act, for regulating the persons employed in that factory with a view to securing the observance therein of the provisions of this Act and the rules, the safety and proper discipline of all such persons and the safety of the public.
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| (2) |
The occupier of any explosives magazine or of any premises where explosives are dealt in shall, if it seems to an inspector to be necessary, make such special rules, not inconsistent with this Act, as are described in subsection (1).
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| (3) |
The occupier of any such factory, magazine or premises shall take all reasonable steps for ensuring or enforcing the observance of any such special rules.
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| (4) |
In respect of penalties, any special rules made under this section shall be deemed to be rules under this Act.
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| 28. |
Penalties for endangering safety or causing loss of life
| (1) |
Any person causing an explosion whereby life or property is endangered shall be guilty of an offence and liable to the following penalties, according as the explosion was negligently or wilfully caused, that is to say—
| (a) |
if the explosion is negligently caused and property is endangered, he shall be liable to a fine not exceeding five thousand shillings or, in default of payment, to imprisonment for a term not exceeding twelve months, or to both;
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| (b) |
if the explosion is negligently caused and life is endangered, he shall be liable to a fine not exceeding ten thousand shillings or, in default of payment, to imprisonment for a term not exceeding twelve months, or to both;
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| (c) |
if the act or omission causing the danger to life or property is wilful the maximum penalty hereinbefore mentioned in this section shall, if death does not result therefrom, be twelve years’ imprisonment without the option of a fine;
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| (d) |
if the explosion is negligently caused and death results, he shall be liable to a fine not exceeding twenty thousand shillings or, in default of payment, to imprisonment for a term not exceeding two years, or to both.
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| (2) |
Nothing in this section contained shall be construed as exempting any person from being charged and punished under the Penal Code (Cap. 63) or any other written law in respect of any such act or omission as is described in this section.
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| 29. |
Penalty for making, possession or control of explosive for unlawful object
Any person who makes or knowingly has in his possession or under his control any explosive, in circumstances which give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence and liable to imprisonment for a term not exceeding seven years, and the explosive shall be forfeited.
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| 30. |
Rules
| (1) |
The Cabinet Secretary may make rules as to all or any of the following matters, namely—
| (a) |
the construction of explosives factories, explosives magazines and other danger buildings;
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| (b) |
the conditions under which the manufacture of explosives may be carried on;
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| (c) |
the storage of explosives, whether in explosives magazines or elsewhere;
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| (e) |
the packing, transport, importation and exportation of explosives, and the making of special rules governing the packing and transport at individual places, and the landing and handling of explosives in ports and harbours;
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| (f) |
the issue of licences to dealers in explosives, the conditions of any such licence, the restrictions which may be placed upon the sale or disposal of explosives to particular classes of persons, and the quantity of any explosive which may be purchased by any person or company under permit from the officer authorized by such rules;
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| (g) |
the inquiry into the circumstances of explosions endangering or causing injury to persons or property or death, and for the reporting of all such explosions;
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| (h) |
the prevention of trespass in or upon an explosives factory, or in or upon any explosives magazine or other place where explosives are kept;
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| (i) |
the tests to which explosives, or the raw materials from which explosives are manufactured, are liable to be submitted;
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| (j) |
the manner in which appeals under section 26 shall be notified and conducted;
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| (k) |
prescribing the statistics which manufacturers, dealers and users of explosives may be called upon to supply;
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| (l) |
prescribing the fees payable for licences or permits, and any renewals or duplicates or amendments thereof,
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and generally for the protection of life and property and for the better carrying out of the objects and purposes of this Act.
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| (2) |
The rules may provide penalties for the contravention thereof or failure to comply therewith not exceeding in any case a fine of five thousand shillings or, in default of payment, imprisonment for a term not exceeding two years, and the rules may further provide that the explosive, if any, in respect of which the contravention or non-compliance has taken place may be forfeited.
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| (3) |
The rules may prescribe daily penalties for a continuing contravention or non-compliance, or increased penalties for a second or subsequent contravention or non-compliance.
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| (4) |
Different rules may be made in respect of different provinces, districts or areas.
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| 31. |
Expiration of licences and permits
Every licence or permit issued under this Act shall expire on the 31st December in the year of issue unless renewed.
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| 32. |
Saving
Nothing in this Act shall apply to—
| (a) |
the importation, storage, use or transport of any explosive by the armed forces, by any other armed forces lawfully in Kenya, or by any other force or service constituted by or under any written law and lawfully in possession of explosives;
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| (b) |
any ammunition a licence to possess or to deal in which is regulated by any other law;
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| (c) |
the use or storage underground of any explosive at any mine as defined by the law for the time being in force regulating mines, works and machinery;
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| (d) |
the possession or conveyance of any explosive taken as a sample for the purpose of this Act by an inspector or other duly authorized person, provided the quantity is not more than is reasonably necessary for the performance of his duty and every sample is kept and conveyed with all due precaution;
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| (e) |
the keeping for sale of fireworks in such quantities and subject to such conditions as may be prescribed by the rules.
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SCHEDULE [s. 2]
AUTHORIZED EXPLOSIVES
The undermentioned explosives are declared to be authorized explosives under this Act—
Gelatinous explosives (such as blasting gelatine, gelignite, gelatine dynamite, etc.).
Non-gelatinous explosives (such as dynamite, ligdyn, farmers’ dynamite, etc.).
Nitro-cotton.
Detonators.
Danolite and instantaneous detonating fuse.
Gunpowder.
Sporting powder.
Percussion caps.
Fireworks of various kinds.
And imported explosives, whether contained in the above list or not, are deemed to be authorized explosives, if included in and conforming to the "authorized list" in forces in the United Kingdom.
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