National Authority Bill 13th May 2009

8/8/2019 National Authority Bill 13th May 2009

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THE NATIONAL CONSTRUCTION AUTHORITY BILL, 2009

No._ of 2009

Date of Assent: ____________, 2009

Date of Commencement: By Notice.

ARRANGEMENT OF SECTIONS

Sections

PART 1 PRELIMINARY

1 Short title and Commencement.2 Interpretation

3 Application

PART II ESTABLISHMENT, POWERS AND FUNCTIONS OF THE

NATIONAL CONSTRUCTION AUTHORITY

4 Establishment and incorporation of the National Construction Authority.

5 Headquarters

6 Functions of the Authority

7 Powers of the Authority8 Membership of the Board

9 Conduct of business and affairs of the Authority

10 Remuneration of Board members11 Delegation by the Authority

12 Executive Director

13 Staff of the Authority14 The common seal of the Authority

15 Protection from personal liability

16 Liability of the Authority for damages17 Notice to require particulars

18 Obligation of secrecy

19 Power to make regulation

20 Conduct of prosecution21 General penalty

PART III FINANCIAL PROVISIONS

22 The National Construction Authority Fund

23 Advances to the Authority24 Investment of funds

25 Financial year

26 Annual estimates

27 Accounts and audit

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PART IV MISCELLANEOUS PROVISIONS

28 Rules and By-laws

29 Powers of the Minister

30 Offences and penalties

31 Dissolution of the Board

FIRST SCHEDULE - PROVISIONS RELATING TO THE

NOMINATION OF DIRECTORS OF THE AUTHORITY

SECOND SCHEDULE - PROVISIONS AS TO THE CONDUCT OF

BUSINESS AND AFFAIRS OF THE AUTHORITY

1 Committees and co-opted advisors

2 Vacation of office by Board members3 Meetings of the Board

4 Disclosure of interest5 Common Seal of the Authority6 - Registers of contractors

7 Publication of registers and lists

8 Publication prima facie evidence of registration

9 Qualification for registration of contractors10 Temporary registration

11 Power to cancel registration

12 Restoration to register13 Powers to suspend registration etc.

14 Proceedings at an Inquiry

15 Disobedience to summons and refusal to give evidence16 Appeals against decisions of the Board

17 Appeals Board

18 Rules regulating proceedings before the Appeals Board19 Use of description Registered and effect of registration

20 Restrictions on carrying on business as contractor

21 Bodies of persons operating as contractors

22 Definitions of carrying on business or trading as contractor

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AN ACT of Parliament to provide for the establishment powers and functions

of the National Construction Authority and for connected purposes.

ENACTEDby the Parliament of Kenya as follows: -

PART I PRELIMINARY

1. This Act may be cited as the National Construction Authority Act, 2008and shall come into operation on such date as the Minister may, by notice in

the Gazette, appoint.

2. In this Act, unless the context otherwise requires the Authority means the National Construction Authority established

under section 4 of this Act;

the Board means the Board of directors established under section 8 of thisAct;

appointed director means a director appointed under paragraph (a) ofsubsection (1) of section 8 of this Act;the Executive Director means the Chief Executive Officer, who will also be

the Registrar for contractors, appointed in pursuance of section 12 of this Act;

director means any person who is a member of the Board;

Minister means the Minister for the time being responsible for mattersrelating to public works;

staff means the officers and servants of the Authority appointed under

section 13 of this Act;"company" means a company formed and registered under the Companies Act

or any of the repealed ordinances;

"contractor" means(a) Any person who for a reward or other valuable consideration undertakes

the construction, installation or erection, for any other person, of any structure

situated below, on or above the ground or other work connected therewith orthe execution, for any other person, of any alteration or otherwise to any

structure or other work connected therewith, where such person undertakes to

do any such work -

(i) himself supplies the material necessary for the work or is authorized toexercise control over the type, quality or the use of material supplied by any

other person;

(ii) himself supplies the labour necessary for the work or is authorized onbehalf of the person for whom the work is undertaken or any other person,

to employ or select for employment workmen to assist him in the execution of

the work: or(b) Any person who himself as a developer or investor, undertakes the

construction, erection, installation or alteration of any structure, for public use

or otherwise, situated below, on or above the ground or other work connected

therewith, or the execution of any alteration or otherwise to any structure, forpublic use or otherwise, or other work connected therewith, where such person

Short title andCommencement

Interpretation

Cap. 486

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undertaking to do any such work -

(i) himself supplies the labour necessary for the work or is authorized toexercise control over the type, quality or the use of material supplied by any

other person; or

(ii) himself is authorized on behalf of the person for whom the work is

undertaken or any other person, to employ or select for employment workmento assist him in the execution of the work;

Provided that a person shall be deemed not to be a contractor, for the purposesof this Act if he at no time undertakes or holds himself out as willing to

undertake any work the cost of construction, erection, installation, alteration or

completion of which does not exceed such a sum as shall be determined by the

Board from time to for different disciplines of the construction industry; orundertakes or holds himself out as willing to undertake construction of a

residential house for his own family (not for public use), which does not

require an input of structural design.Certificate of Registration means a certificate of compliance issued by the

Authority;Member in relation to the Board or the Appeals Authority includes theChairman and the Vice-Chairman;

person means a natural person, body of persons whether corporate or

unincorporate;

Registers means the Register of Contractors maintained by the Authority inaccordance with the provisions of this Act;

registered in relation to any contractor means contractor whose name is

entered in the relevant register;Registrar means the Registrar appointed in accordance with the provisions of

section 12

"construction site supervisor" means a person assigned to the construction siteby the contractor to supervise the construction works;

"construction industry" means the industry concerning construction works;

"construction works" means the construction, extension, installation, repair,maintenance, renewal, removal, renovation, alteration, dismantling, or

demolition of:(a) any building, erection, edifice, structure, wall, fence or chimney, whether

constructed wholly or partly above or below ground level ;(b) any road, harbour works, railway, cableway, canal or aerodrome;

(c) any drainage, irrigation or river control works;

(d) any electrical, mechanical, water, gas, petrochemical or telecommunicationworks; or

(e) any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, aqueduct,

culvert, drive, shaft, tunnel or reclamation works,and includes any works which form an integral part of, or are preparatory to

or temporary for the works described in paragraphs (a) to (e), including site

clearance, soil investigation and improvement, earth-moving, excavation,

laying of foundation, site restoration and landscaping.

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3. The provisions of this Act shall apply, as more specifically provided in the

Act, to the management of the entire construction industry in Kenya.

PART II ESTABLISHMENT, POWERS AND FUNCTIONS OF THE

NATIONAL CONSTRUCTION AUTHORITY

4. (1) There is hereby established an Authority to be known as the National

Construction Authority.(2) The Authority shall be a body corporate with perpetual succession and a

common seal and shall, in its corporate name, be capable of

(a) suing or being sued;

(b) taking, purchasing or otherwise acquiring, holding, charging or disposingof movable and immovable property; and

(c) doing or performing all other things or acts for the furtherance of the

provisions of this Act which may be lawfully done or performed by a bodycorporate.

(3) The provisions of the schedules to this Act, shall have effect as to theconstitution and proceedings of the Board and otherwise in relation to theAuthority.

(4) The Minister may, after consultation with the Authority, by order published

in the Kenya Gazette, amend, add to, vary, revoke or replace the provisions of

the schedules.

5. The Headquarters of the Authority shall be in Nairobi.

6. (1) The object and purpose for which the Authority is established is to

oversee the construction industry and coordinate its development.

(2) Without prejudice to the generality of subsection (1), the Authority shall;(a) promote and stimulate the development, improvement and expansion of the

construction industry;

(b) advise and make recommendations to the Minister on matters affecting orconnected with the construction industry;

(c) promote, stimulate and undertake research into any matter relating to the

construction industry;

(d) promote, stimulate and assist in the export of service relating to theconstruction industry;

(e) provide consultancy and advisory services with respect to the construction

industry;(f) promote quality assurance in the construction industry;

(g) encourage the standardisation and improvement of construction techniques

and materials;(h) initiate and maintain a construction industry information system;

(i) provide, promote, review and coordinate training programs organized by

public and private construction accredited training centres for skilled

construction workers and construction site supervisors;(j) accredit and register contractors and to cancel, suspend or reinstate the

Application

Establishment

and

incorporation of

the National

Construction

Authority

Headquarters

Function of the

Authority

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registration of any registered contractor; and

(k) accredit and certify skilled construction workers and construction sitesupervisors.

(3) It shall be the responsibility of the Authority in performing its functions

under this Act to ensure that the functions are performed in such manner as

shall be in furtherance of the policy of the Government for the time being inforce and in particular relating to the construction industry.

7. (1) The Authority shall have power to do all things expedient or reasonably

necessary for, or incidental to, the performance of its functions and, in

particular, but without prejudice to the generality of the foregoing, the

Authority shall have power to (a) to carry on all activities, particularly activities in respect of the construction

industry, the carrying on whereof appears to it to be requisite, advantageous or

convenient for or in connection with the performance of its functions;(b) to award certificates of proficiency to contractors, skilled construction

workers and construction site supervisors;(c) to impose fees or any other charges as it deems fit for giving effect to anyof its functions or powers;

(d) with the approval of the Minister, to establish or expand, or promote the

establishment or expansion of, companies, corporations or other bodies to

carry on any such activities either under the control or partial control of theAuthority or independently;

(e) to receive, in consideration of any services that may be rendered by it, such

commission or payments as may be agreed upon with any person; and(f) to do such other things as it deems fit to enable it to carry out its functions

and powers effectively.

8. (1) The Board of the Authority shall consist of

(a) a Chairman to be appointed by the Minister from among the members

appointed under paragraph (f);

(b) the Executive Director whose position shall be filled by the Board throughpublic advertisement;

(c) the Permanent Secretary of the ministry responsible for matters relating to

public works;(d) the Permanent Secretary of the ministry responsible for matters relating to

roads;

(e) the Permanent Secretary of the ministry responsible for matters relating toLocal Government;

Provided that any Permanent Secretary aforesaid may deputize in writing any

other person not below the level of Deputy Secretary to be a director in hisplace.

(f) four other members comprising, representatives of each of the organizations

specified in the First schedule and appointed by the Minister from amongst

three persons nominated by each of the organizations;(g) two other members representing special interest groups to be appointed by

the Minister;

Powers of the

Authority

Membership of

the Board

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(2) the Minister may, by notice in Gazette amend the First Schedule;

(3) No person shall qualify for appointment as a member of Board of theAuthority under paragraph (f) and (g) of subsection (1) unless such person is

holder of a Kenya Certificate of Secondary Education or an equivalent

qualification and has at least ten years practical experience in the Construction

Industry.(4) The Chairman and members of the Board, other than the ex-officio

members shall hold office for a period of three years from the date ofappointment, but shall be eligible for re-appointment for one further term of a

period not exceeding three years.

(5) The names of all members of the Board as first constituted and at

every change in membership thereafter shall be published in the KenyaGazette.

9. (1) The conduct and regulation of the business and affairs of the Authorityshall be as provided in the Second Schedule.

(2) Except as provided in the Second Schedule, the Board may regulate its

own procedure.

10. (1) The Authority shall pay members of Board of the Authority such

remuneration, fees or allowances for expenses as it may determine after

consultation with the State Corporations Advisory Committee (SCAC).

11. The Authority may, by resolution either generally or in any particular case,

delegate to any committee of the Authority or to any member, officer,employee or agent of the Board, the exercise of any of the powers or the

performance of any of the functions or duties of the Board under this Act or

under any other written law.

12. (1) There shall be an Executive Director of the Authority who shall be

a competent professional appointed by the Minister from a list of 3 names of

shortlisted persons by the authority following competitive interviews andwhose terms and conditions of service shall be determined by the Authority in

the instrument of appointment or otherwise in writing from time to time.

(2) No person shall be appointed under this section unless such person (a) is a holder of a degree in any of the professions engaged in the construction

industry (Architecture, Quantity Surveying, Civil, Electrical, Mechanical

Engineering) of a university for the time being recognized by the Board ofRegistration of Architects and Quantity Surveyors or Engineers Registration

Board and is registered within the meaning of the Act that regulates the

practice of his profession.(b) has at least eighteen years practical experience in the relevant field, at least

three of which must have been gained in a senior managerial capacity.

(3) The Executive Director shall

(a) be an ex-officio member of Board of the Authority and shall have no rightto vote at any meeting of the Board;

(b) be the secretary to the Board of the Authority and the Registrar for

Conduct of

business and

affairs of the

Authority

Remuneration of

Authoritymembers

Delegation by

the Authority

Executive

Director

Cap 525

Cap 530

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contractors; and

(c) subject to the directions of the Authority, be responsible for the day to daymanagement of the affairs of the Authority.

13. The Authority may appoint such officers or other staff as are necessary for

the proper discharge of its functions under this Act or any other written law,upon such terms and conditions of service as the Authority may determine.

14. (1) The common seal of the Authority shall be kept in such custody as the

Board may direct and shall not be used except on the resolution of the Board of

the Authority.

(2) The common seal of the Authority when affixed to a document and dulyauthenticated shall be judicially and officially noticed and unless and until the

contrary is proved, any necessary resolution or authorization by the Authority

under this section shall be presumed to have been duly given.

15.No matter or thing done by a member of the Authority or any officer,employee or agent of the Authority shall, if the matter or thing is done bona

vide for executing the functions, powers or duties of the Authority, render the

member, officer, employee or agent or any person acting on his directions

personally liable to any action, claim or demand whatsoever.

16. The provisions of section 15 shall not relieve the Authority of the liability

to pay compensation or damages to any person for an injury to him, his

property or any of his interests caused by the exercise of the powers conferredon the Authority by this Act or by any written law or by the failure, whether

wholly or partially, of any works.

17. (1) For the purpose of carrying out its functions under section 6, the

Authority may by notice in the prescribed form require any contractor or their

representative to furnish any particulars which are within the contractorsknowledge, or which he is able to obtain, relating to any construction works in

such manner and form as the Authority may specify.

(2) The notice under subsection (1) may be served by delivering it to the

person at the construction site, his working place or at his residence orpublicized in the newspapers.

(3) A notice may require the information to be furnished at specific times or

within specific intervals.(4) The Authority shall not require any person to supply information which

will disclose any trade secret.

18. (1) Except for any of the purposes of this Act or for the purpose of any

civil or criminal proceedings under any written law, no member, officer or

servant of the Authority shall disclose any information which has been

obtained by him in the course of his duties and which is not published inpursuance of this Act.

Staff of the

Authority

The common

seal of the

Authority

Protection from

personal liability

Liability of the

Authority for

damages

Notice to require

particulars

Obligation ofsecrecy

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(2) Any person contravening subsection (1) shall be guilty of an offence and

shall, on conviction, be liable to a fine not exceeding five thousand Kenyashillings or to imprisonment for a term not exceeding six months or to both.

19. (1) The Authority may make recommendations to the Minister for the

formulation of such regulations as may be expedient or necessary for the bettercarrying out of the provisions of this Act.

(2) Without prejudice to the generality of subsection (1), regulations may bemade for-

(a) prescribing the manner and form for the collection of levy;

(b) prescribing the form and manner of service of any notice required under

this Act;(c) prescribing the fees and charges to be paid in respect of any matter required

for the purposes of this Act;

(d) prescribing the manner and forms for the accreditation and certification ofcontractors, skilled construction workers and construction site supervisors;

(e) prescribing the responsibilities and control of officers and servants of theAuthority;(f) providing generally for the performance of the functions, the exercise of the

powers and discharge of duties of the Authority under the provisions of this

Act; and

(g) any other matter generally to give effect to the provisions of this Act.

20.No prosecution for any offence under this Act shall be instituted except

with the consent in writing of the Public Prosecutor.(check with AG)21. Any person who by any act or omission contravenes any provision under

this Act or any regulations made hereunder shall be guilty of an offence andwhere no penalty is expressly provided shall, on conviction, be liable to a fine

not exceeding five thousand Kenya shillings.

PART III FINANCIAL PROVISIONS

22. (1) There shall be established an account which shall vest in the Authority.

(2) There shall be paid into the Account -(a) Initial budgetary provision by the government as start-up capital for the

establishment of the Authority;

(b) charges levied to contractors on services given by the Authority;(c) all moneys from any other source provided for or donated or lent to the

Authority;

(d) all proceeds from the Construction Levy Fund which shall be charged at0.25% of all contracts above Kshs. 5 million.

(e) such moneys or assets as may accrue to or vest in the Authority in the

course of the exercise of its powers or the performance of its functions

under this Act or under any other written law;(f) such sums as may be payable to the Authority pursuant to this Act or any

Power to make

regulations

Conduct of

prosecution

General penalty

The National

Construction

AuthorityAccount

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other written law, or pursuant to any gift or trust.

(g) registration and annual subscription fees paid by registered contractors;(h) such sums as the Authority may be provided for the purposes of the Board

by Parliament in a form of Government subvention;

(i) such sums as the Authority may receive by way of grant from any person or

organization;(j) such sums as may, in any manner, become payable to or vested in the Board

either under the provisions of this Act or any other written law, orincidental to the carrying out of its functions.

(3) All receipts, savings and accruals for the Account and the balance of the

Account at the end of the financial year shall be retained for the purposes forwhich the Account is established.

(4) There shall be paid out of the Account any expenditure incurred by the

Authority in the exercise of its powers or the performance of its functionsunder this Act.

(5) The Authority shall with the approval of the Minister, set a ceiling of themoney which in any one year may be spent on recurrent expenditure.

23.(1) The Authority shall ensure that in any financial year expenditure and

commitments from the Account shall not exceed the annual income of the

Account together with any surplus income brought forward from a previousyear.

(2) If, in exceptional circumstances, the income from the Account or other

funds together with any surplus income brought forward from a previous yearis insufficient to meet the actual or estimated expenditure of the Authority, the

Minister of Finance may, with the approval of Parliament, make advances to

the Authority and such advances shall be made on such terms and conditions,whether as to repayment or otherwise, as the Minister for Finance may

determine, provided that any such advance shall be repaid from the income of

the Account. (exceptional circumstances to be clarified)

24.(1) The Authority may with the approval of the Minister:

(a) invest any of its surplus funds in Government securities;

(b) place or deposit with any banks quoted on an approved securities exchangein Kenya as it may determine, any moneys not immediately required for the

purposes of the Authority.

(2) In this section, approved securities exchange means a securities exchangeapproved under the Capital Markets Act,

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

26. (1) The Authority shall cause to be prepared estimates of the revenue and

expenditure of the Authority not later than the end of February in every year.(2) The annual estimates shall make provision for all estimated expenditure of

Advances to the

Authority

Investment of

funds

Cap 485A

Financial year

Annual estimates

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the Authority for the financial year and in particular, the estimates shall

provide for-(a) the payment of salaries, allowances and other charges in respect of the staff

of the Authority;

( b) the payment of pensions, gratuities and other charges in respect of the staff

of the Authority;(c) proper maintenance of the buildings and grounds of the Authority; and

(d) the maintenance, repair and replacement of the utilities, equipment andother property of the Authority.

(3) The annual estimates shall be approved by the Board before the

commencement of the financial year to which they relate and shall be

submitted to the Minister for approval and concurrence of the Treasury beforeimplementation; and thereafter, the Authority shall not increase or decrease the

annual estimates.

27. (1) The Authority shall cause to be kept all proper books and records of

account of the income, expenditure and assets of the Authority.(2) Within a period of three months from the end of each financial year, theAuthority shall submit to the Controller and Auditor General the accounts of

the Authority together with-

(a) a statement of the income and expenditure of the Authority during that

year; and(b) a statement of the assets and liabilities of the Authority on the last day of

that year.

(3) The accounts of the Authority shall be audited and reported upon inaccordance with the Public Audit Act, 2003 by the Controller and Auditor

General.

(4) The Authority shall inform and keep the public informed of its activitiesand operations through regular publications and such activities and operations

shall be accessible to the public unless there are reasons of commercial

confidentiality or security justifying exclusions.(5) The decision of the Authority to exclude information from the public shall

be subject to judicial review.

PART IV MISCELLANEOUS PROVISIONS

28. The Authority, with the approval of the Minister, may make rules and by-

laws generally for carrying out of its functions under this Act and in particular,for prescribing -

(a) anything required by this Act to be prescribed;

(b) penalties for the failure by any contractor to comply with any directionsissued under section 19;

(c) remedial, supplementary or alternative measures to be taken in respect of

contractors or their agencies which persistently fail in the discharge of their

functions.(d) prescribing rules for conduct and ethics for contractors;

Accounts and

Audit

Public Audit Act

Cap

Rules and By-

laws

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(e) categorizing, classifying and specifying types of contractors;

(f) setting class limits for different classes of different types and categories ofcontractors; and reviewing these limits at the Boards discretion;

(g) prescribing conditions to be met for being eligible to be registered in a

given class;

(h) prescribing the fees to be paid on application, registration and annualsubscription, the issue of certificates of registration and extracts, copies and

lists of, or in relation to, entries in the registers;(i) prescribing certificates, awards and other qualifications which shall be

recognized as entitling the holder to registration under this Act;

(j) prescribing certificates and other awards which may be conferred or granted

by the Board;(k) prescribing fees for admission to any course, seminar, conference,

symposium or workshop offered or conducted by the Authority;

(l) prescribing conditions to be met for upgrading of classes of contractors;

29.(1) The Minister for Public Works may -(a) give directions of a general nature to the Authority relating to the executionof its functions under this Act; and

(b) provide policy guidelines to the Authority.

30. (1) Any person who appropriates or applies or causes any other person toappropriate or apply, any proceeds or assets of the Authority or the Fund

otherwise than in accordance with the Act or the directions of the Board, shall

be guilty of an offence and shall, upon conviction, be liable in addition to anyother penalties which the Authority may prescribe, to the penalties prescribed

in the Penal Code Cap 63.

(2) In addition to the penalties referred to in subsection (1), all proceeds orassets found to have been misappropriated shall be recovered in full from a

person found guilty of an offence under this section.

31. The Minister for Public Works may, by notice in the Kenya Gazette,

dissolve the Board if the Authority performs its functions in a manner

inconsistent with the provisions of this Act.

FIRST SCHEDULE

PROVISIONS RELATING TO THE NOMINATION OF DIRECTORS

OF THE AUTHORITY

Appointment of Nominated members:The nomination of the appointed members of the Board under section 8(1)

shall be in accordance with the prescribed procedures and requirements from

the following organizations -

(a) one shall be a member nominated by the Architectural Association ofKenya;

Powers of the

Minister

Offences and

penalties

Cap 63

Dissolution of

the Authority

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(b) one shall be a member nominated by the Institution of Engineers of Kenya;

(c) one shall be a member nominated by the Law Society of Kenya;(d) the Permanent Secretary of Public Works;

(e) the Permanent Secretary of Roads;

(f) the Permanent Secretary of Local Government;

(g) two other persons representing special interest groups to be nominated bythe Minister;

Provided that any Permanent Secretary aforesaid may deputize in writing any

other person not below the level of Deputy Secretary to be a director in his

place.

SECOND SCHEDULE

PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS

OF THE AUTHORITY

1. (1) In order to achieve its objectives, the Board may establish suchcommittees as it may deem appropriate to perform such functions and

responsibilities as it shall determine, but all findings of such committees shall

be presented to the Board for its consideration and determination.

(2) The Board shall appoint the chairman of any committee established by itfrom amongst its own members.

(3) The Board may at its discretion, at any time and for any length of time co-

opt any person to attend any of its deliberations, but such person shall not beentitled to vote on any matter at any meeting of the Board.

2.(1) The appointment of a member, other than an ex-officio member shall beterminated by the Minister, on any of the following grounds:-

(a) upon the expiration of the period of his appointment;

(b) upon his death;(c) if he is adjudged bankrupt;

(d) if he is sentenced for any offence against any written law to a term of

imprisonment of, or exceeding , six months otherwise than as an alternative to,

or in default of, the payment of a fine;(e) if he is convicted of an offence involving fraud and dishonesty.

(f) if he is absent, without the permission of the Board, from three successive

meetings of the Board of which he has received notice;(g) upon notice in writing of his intention to resign his office;

(h) if in the opinion of the Board, he becomes, by reason of mental or physical

infirmity, incapable of performing his duties as a member of the Board; or(i) upon the commission of an offence under this Act.

3. (1) The Board shall meet at its registered office or such place or places in

Kenya with prior written approval of the State Corporations AdvisoryCommittee (SCAC) and at such time or times as the Chairman may determine

Committees and

co-opted

advisors

Vacation ofoffice by Board

members

Meetings of the

Board

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and shall meet quarterly.

(2) An ordinary meeting of the Board shall be convened by at least fourteendays written notice to the members by the Executive Director to the Authority.

(3) The Chairman, may, in his discretion, and shall at the written request of at

least half of the members of the Board and within seven days of such request,

cause an extraordinary meeting of the Board to be summoned at such place andtime as he may appoint.

(4) The quorum of any meeting of the Board shall be five of the membership ofthe Board.

(5) Where there is no quorum at a meeting of the Board, or for the

continuation of a meeting of the Board by reason of the exclusion of a member

on account of the provisions governing disclosure of interest, the memberspresent shall postpone consideration of the matter in question until there is a

quorum.

(6) The Board may make standing orders for the regulation of itsproceedings and business or the proceedings and business of any of its

committees and shall inform the Minister in writing of all such standing orders.(7) The minutes of each meeting of the Board or of a committee of the Boardshall be kept by the Executive Director to the Board and shall be confirmed by

the Board or the committee at the succeeding ordinary meeting and be duly

signed by the chairman or the person presiding.

(8){a} The Chairman presides over all meetings of the Board and in hisabsence, the members of the Board forming a quorum shall appoint one of

their number to chair the meeting.

{b} A person appointed to chair a meeting of the Board under this subsectionshall at that meeting exercise all the powers of the chairman.

(9) At any meeting of the Board where decision on any matter has to be made

by voting, such decision shall by made by majority vote of members presentand when voting, the chairman or the person presiding shall have, in the event

of a tie, a casting vote.

4. If a member of the Board acquires any interest direct or

indirect in any contract, proposed contract or other matter and is present at a

meeting of the Authority at which the contract, proposed contract or other

matter is the subject of consideration by the Authority, the member shall at themeeting disclose the fact to the Authority and shall take no part in the

consideration or discussion of, or vote on any question with respect to the

contract or other matter.

5. (1) The common seal of the Authority shall be authenticated by the signature

of the chairman and the Executive Director to the Authority.(2) In the absence of the chairman any Board member designated by the

chairman for the purpose may authenticate the seal.

6. (1) The Executive Director shall keep and maintain registers of contractorsof different types, categories and classes in which the name of every person

Disclosure of

interest

Common Seal of

the Authority

Registers of

Contractors

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entitled to have his name as a registered contractor, shall be entered as soon as

it is practicable after being accepted by the Board for registration, showingagainst his name -

(a) the date of entry;

(b) the name and postal address(es);

(c) the registration number;(d) the class registered in;

(e) the capital and other financial resources;(f) tools, plants and equipment;

(g) physical address;

(h) the key managerial, professional or technical and other personnel;

(i) directors or partners, or a senior employee, one or more of whom shall betechnically qualified and or experienced in. the relevant works as prescribed by

the Board;

(j) in the case of an individual, the qualifications and or skills and experienceas prescribed by the Authority necessary to enable him to discharge in

satisfactory manner the obligations which he may reasonably be expected orcalled upon to undertake as a contractor belonging to the category, type andclass in respect of which registration is being sought;

(k) annual turnover of construction activities;

(l) duration of registration;

(m) type of registration; and(n) any other particulars which the Board may, from time to time, direct.

(2) Registers shall be kept for the following types of contractors namely;

(a) general building contractors;(b) civil engineering contractors;

(c) electrical contractors;

(d) plumbing and drainage contractors;(e) ventilation and air conditioning contractors;

(f) labour contract contractors;

(g) fire engineering contractors;(h) structural steel contractors;

(i) any other contractors in the construction industry not specified above.

(3) Any change in any, of the particulars registered under subsection (1), shall

be entered in the appropriate register by the Executive Director.

7. (1) The Executive Director shall by notice published in the Kenya Gazette,

as soon as may be practicable after registration publish the names, postaladdresses, premises, registration number, type, category and class registered in

and names, and qualifications of partners or directors of the registered

contractor.(2) Subject to the direction of the Board, the Executive Director may publish

any amendment to or deletion from the register in the Kenya Gazette.

(3) The Executive Director shall by notice published in the Kenya Gazette

twice in a calendar year, as soon as practicable after the first day of January ineach year, publish a list containing the names; postal addresses, premises,

Publication of

registers and lists

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registration number, type, category and class registered in, and of all registered

contractors remaining on the registers after the thirty first day of December ofthe previous year and 1st day of June of the current year.

8. (1) A publication under the provisions of section 11 of this schedule shall be

prima facie evidence that, any persons name in the register is registered underthis Act, and the deletion from the register of the name of any person notified

by that application, shall be prima facie evidence that person is not soregistered.

(2) The registers, lists and all copies or extracts, which have been duly certified

by the Executive Director shall be accepted in all courts and tribunals or other

bodies authorized to receive evidence of the facts stated in them.(3) Any person may inspect the register and any document relating to any entry

in it and may obtain, from the Executive Director a copy of an extract from the

register for any document on payment of a prescribed fee.

9. (1) Subject to the provisions of this Act, a person shall be eligible on makingan application to the Board in the prescribed manner and on payment to theAuthority of the prescribed fees, to be registered under this Act as a contractor

if he satisfies the Board -

(a) that Director or Partner or Senior employee has the minimum technical

qualifications and skills prescribed by the Board for the category, type andclass of contractors the, registration of

which is being sought;

(b) that he has the necessary experience as prescribed by the Authority inworks involving construction, erection, installation; alteration or any other

activity which is connected with them;

(c) that his professional and general conduct has been such as, in the opinion ofthe Board, makes him a suitable person to be registered under this Act; and

(d) he has the necessary plant and equipment for the registration sought.

(2) The Authority may refuse to register a person as a contractor if in itsopinion -

(a) that person does not meet the conditions stated in subsection (1);

(b) that person is a member of a consulting firm providing architectural,

quantity surveying or engineering services, provided there is full declaration.(c) is a person whose employment shall result in conflict of interest with his

employer by being a contractor.

(3) Upon registration, the person shall be issued with a certificate ofregistration indicating the registration number, type, category, class, date of

registration and duration of registration.

(4) The certificate issued under subsection (3), shall be the property of theAuthority and shall be withdrawn and returned to the Authority upon

suspension or cancellation of registration.

10. (1) (a) where the firm has been incorporated outside Kenya;(b) the firm intends to be present in Kenya in the capacity of a contractor for

Publication

prima facieevidence of

registration

Qualification for

registration of

contractors

Temporary

registration

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the express purpose of carrying out a specific contract for which the firm has

been contracted, the sum of which is not less than the sum prescribed by theBoard for the category, type and class of contractors of which registration is

being sought;

(c) the firm has a certificate of compliance from the Registrar of Companies

showing that the firm is or immediately prior to entering Kenya was, trading asa contractor in the capacity which satisfies the Authority with its fitness to

serve the public as a qualified contractor;(d) the firm has lodged an affidavit with the Authority to the effect that, once

the contracted works are completed and the period of defects liability or

maintenance has elapsed then it shall wind up business and not engage itself in

contracting business, the Board may if it finds neccessary, direct that the firmbe registered under this section for the duration of the contracted works.

(2) An application for registration under this section shall be in the prescribed

form, accompanied by the prescribed fee. The Board may require an applicantto appear before it for the purposes of producing documentary evidence of its

competence in executing construction works immediately prior to its entry inKenya.(3) Registration of a firm under this section, shall entitle it to undertake work

only for the duration or the period of contracted work which is directed by the

Board in subsection (1) and on the expiry of the period of the contracted works

that firm will cease to have been so registered, and shall return the registrationcertificate to the Authority.

(4) A firm under this section shall during the duration or the period of the

contracted works as is directed by the Authority under subsection (1), and inrelation to things done or omitted to be done in the course of the contracted

work, be treated as being duly registered under this Act as a bona vide

contractor.(5) For the purpose of this section, the word firm includes a person or body

of persons whether corporate or unincorporate.

11. (1) The Board may at any time direct that the name of a registered

contractor be deleted from the relevant register where that person has -

(a) failed within a period of six months from the date of an inquiry sent by the

Executive Director by a registered letter to the address appearing in the registeragainst his name to notify the Executive Director of his current address;

(b) requested that his name be deleted from the register, in which case that

person may be required to satisfy the Authority by swearing an affidavitcertified by commissioner of oaths and lodged with the Executive Director but

no criminal proceedings under section 17 or section 18 of this schedule are

being, or are likely to be taken against him;(c) failed to pay annual subscription fees for two consecutive years;

(d) failed to meet the current registration criteria of the Authority;

(e) failed to discharge his duties, responsibilities and obligations as a

contractor;(f) been found by the Authority to be guilty of any contravention of this Act or

Power to cancel

registration

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subsidiary legislation made under this Act or of any such misconduct as is

referred to in section 17 of this schedule .(2) The Executive Director shall strike the name of every deleted contractor off

the register.

(3) Except in the circumstances specified in paragraph (a) of subsection (1) and

in subsection (2), the deletion from the register of the name of any contractorshall be notified by the Executive Director to that contractor by a recorded

delivery or a registered letter to the address appearing in the register against hisname immediately prior to the deletion.

(4) Subject to the provisions of section 13 of this schedule, a contractor whose

name has been deleted from the register under this section, shall cease from the

date of the deletion, to be registered for the purpose of this Act; and shall beobliged to surrender to the Authority immediately the certificate of registration

for cancellation.

(5) A sole proprietor, partners, members of a society or directors of a companyshall not be allowed to register or acquire a new contracting sole

proprietorship, partnership, society or company after having been deleted asregistered contractors.

12. (1) Where the name of any contractor has been deleted from the register

under section 15 of this schedule, the name of that contractor shall not again be

entered in the register except on the direction of the Board.(2) Where the name of any contractor has been deleted from the register or the

effect of the registration of any contractor has been suspended in terms of

paragraph (b) of section 13 of this schedule, the Board may, either of its ownmotion or on application in the prescribed manner by the contractor concerned

and in either case after holding such inquiry as the Board may deem fit, direct

that -(a) the deletion from the register be confirmed; or

(b) the name of that contractor be restored to the register; or

(c) the suspension of the effect of the registration of that contractor be lifted.(3) A direction given by the Board under subsection (2) may include provision

for the date upon which a restoration to the register or the termination or

suspension of the effect of registration shall take effect and for the payment by

the contractor concerned of the fee, as a penalty, not exceeding the fee payableon an application for registration, as the Board may determine.

13. (1) The Board shall have power to suspend any registered contractor ifsuch registered contractor including its principals or partnership

(a) is convicted of any offence under this Act;

(b) is found to have been guilty of any act or omission amounting to improper,disgraceful or gross professional misconduct, after due inquiry held by the

Board;

(c) has breached the regulations or by-laws of the Authority.

(2) In addition to the power to suspend registration given under subsection (1)the Authority may -

Restoration to

the register

Powers to

suspendregistration etc.

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(a) caution or censure a registered contractor;

(b) direct that during the period as the Board may specify, the registration ofhis name shall not have effect;

(c) direct that his name be deleted from the Register;

(d) take legal action against the offender.

14. (1) Upon any inquiry held by the Authority under this section, the

contractor whose conduct is being inquired into shall be entitled to appear andbe heard.

(2) For the purposes of proceedings at any inquiry held by it, the Board shall

have power to -

(a) summon persons to attend and give evidence; and(b) order the production of documents.

(3) All summonses and orders issued under the hand of the Chairman of the

Authority shall be deemed to be issued by the Authority.(4) The Chairman, of the Board shall record or cause to be recorded a summary

of any oral or written evidence given at an inquiry held by the Authority.(5) Subject to the provisions of this section and of any regulations made undersection 29 of this schedule, the Authority shall have powers to regulate its own

procedures at an inquiry held by it.

15. (1) Any contractor who, having been served with a summons or an orderissued under the provisions of section 23 or omits without sufficient cause -

(a) to answer fully and satisfactorily to the best of his knowledge and belief all

questions put to him by or with the concurrence of the Board;(b) to produce any documents in his possession or under his control which are

specified in the order;

commits an offence and upon conviction is liable to a fine of not less than tenthousand shillings or to imprisonment for a term not exceeding one year but

not less than six months or to both that fine and imprisonment,

(2) Any person giving evidence before the Authority shall, in respect of anyevidence given by him or any document produced by him, be entitled to all

privileges to which he would be entitled as a witness before the High Court.

16. (1) Any contractor aggrieved by a decision of the Board subject to section18 to

(a) refuse to register his name;

(b) delete his name to a register; or(c) suspend the effect of registration of his name;

may appeal to the Appeals Board against the decision of the Board and the

Appeals Board may give such directions in the matter as it thinks proper.(2) The Authority may appear as respondent and be heard on any appeal

against its decision and, for the purposes of enabling directions to be given as

to the costs of any appeal, the Authority shall be deemed to be a party thereto,

whether or not it shall appear at the hearing of the appeal.(3) Any person aggrieved by the decision of the Appeals Board may appeal to

Proceedings at an

inquiry

Disobedience to

summons and

refusal to give

evidence

Appeals against

decisions of theBoard

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the High Court.

17. (1) The Appeals Board shall Consist of:-

(a) a Chairman to be appointed by the Authority;

Two members appointed by the Authority who are professionals

in the construction industry with not less than ten years experience.(2) the Appeals Board will be an ad-hoc Board whose tenure shall be three

years from the date of appointment.(3) the expenses, allowances, etc of the Appeals Board shall be met by the

Authority.

18. (1) The Minister may, after consultation with the Attorney-General, makerules regulating appeals to the Appeals Board and providing for the taking of

further evidence, the fees to be paid, the procedure to be followed and the

manner of notifying the Board of Appeal.(2) Subject to any rules made under subsection (1), the provisions of section 18

and section 19 of this schedule shall apply, mutatis mutandis, in relation toappeals under section 20 of this schedule and to persons summoned to giveevidence before the Appeals Board.

19. Every contractor whose name has been entered in the register shall, so long

as his name remains in the register, be entitled to adopt and use the style andtitle Registered Contractor or such contraction thereof as the Board may

approve and to offer his services to the public for valuable consideration or

reward or by way of trade, as a registered contractor.

20. (1) Any person who or any firm which not -

(a) being a registered contractor falsely pretends to be such; or(b) being a registered contractor, holds himself out other than for the purpose

of applying for registration, whether directly or by implication to be a qualified

and experienced contractor; or(c) being a registered contractor trades or carries on business as contractor in

Kenya;

commits an offence and upon conviction is liable to a fine not exceeding one

percent of the contract sum of an executed contract or contract in hand or twohundred thousand Kenya shillings whichever is lesser or to imprisonment for a

term of not less than three years or to both the fine and the imprisonment.

(2) Any person who trades under the name, title or style containing any wordsor phrases implying Registered Contractor unless, he is registered under this

Act as contractor, commits an offence and upon conviction is liable to a fine

not exceeding one percent of the contract sum of an executed contract orcontract in hand or two hundred thousand Kenya shillings whichever is lesser

or to imprisonment for a term of not less than three years or to both the fine

and the imprisonment.

Appeals Board

Rules regulating

proceedings

before theAppeals

Authority

Use of

descriptionRegistered and

effect of

registration

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21. (1) No body or persons, whether corporate or unincorporated, shall carry

on the business of contractors unless at least one of the partners or directors ora senior employee has as prescribed by the Authority the required technical

qualifications, and or skills and experience necessary to enable him to

discharge in satisfactory manner the obligations which he or the firm may

reasonably be expected or called upon to undertake as a contractor belongingto the category, type and class in which he or the firm intends to carry on the

business of contractors; and that body of persons is duly registered.(2) Where the director who is also a shareholder or partner who has the

required technical qualifications, skills and experience, of a body of persons

whether corporate or unincorporate, carrying on business as a contractor dies,

such body or persons may, notwithstanding the provisions of subsection (1) beallowed to complete the project or contracts in hand only, as if such legal

representatives were registered contractors.

(3) Nothing in this Act shall be construed as entitling any body of persons,whether corporate or unincorporated to be registered as or as empowering the

Board to register any body of persons as registered contractors.(4) A body of persons, whether corporate or unincorporate, after fulfilling theConditions for registration, may be registered as contractors and if so

registered, may lawfully carry on business as registered contractors and, in the

case of such body of persons so registered or applying to be so registered,

references in this Act to the required technical qualification, experience, skillor conduct as prescribed by the Authority of any contractor or applicant shall

be construed as references in this Act to the required technical qualification,

experience, skill or conduct of persons who are directors or partners, as thecase may be or are employed by, such body of persons and who are

participating or, in the case of an application, shall participate, in the activities

of the body of persons in .carrying out its business as registered contractors.(5) The Authority may refuse to register any body of persons as contractors or

direct the deletion from the register of the name of any body of persons

registered as such if it is satisfied that none of the directors or partners, as thecase may be, is a person who, if he had applied to be registered as a contractor

in his individual capacity would not have been accepted for registration.

(6) Any body or persons who carries on business as contractors in

contravention of any of the provisions of this section commits an offence andupon conviction is liable to a fine not exceeding one percent of the contract

sum of an executed contract or contract in hand or two hundred thousand

Kenya shillings whichever is lesser or to imprisonment for a term of not lessthan three years or to both the fine and the imprisonment.

22. For the purposes of this Act a person shall be deemed to be carrying onbusiness or trading as a contractor if he, for valuable consideration or reward,

offers or renders his services as contractor, to another person, whether such

services are offered or rendered under a labour contract, contract of service, a

contract for services or otherwise.

Restrictions on

carrying on

business as

registered

contractor

Bodies of

persons

operating as

contractors

Definitions of

carrying on

business ortrading as

contractor

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Documents

National Authority Bill 13th May 2009