The Draft Kenya Roads Bill, 2013

The Draft Kenya Roads Bill, 2013 1

THE KENYA ROADS BILL, 2013

ARRANGEMENT OF SECTIONS

Clauses

PART I—PRELIMINARY

1—Short title2—Interpretation3— Object and purpose of the Act4—Guiding principles

PART II—ESTABLISHMENT, COMPOSITION AND FUNCTIONS OF THE KENYA ROADS AUTHORITY

5— Establishment and composition of the Authority6—Board of the Authority7—General duties and responsibilities of the Board 8—Powers of the Board9—Procedure for appointment of certain members10— Qualifications and appointment of chairperson and members11— Committees of the Board12—Term of office13— Remuneration of members14—Meetings of the Board15—Removal from office16—Vacation of office17—Filling of vacancy18—Directorates etc., of the Authority and their functions 19—Director General and other directors20— Removal of Director General21— Secretary to the Board22— Employees of the Authority23—Authority to make regulations relating to employees24—Regulations on employees by cabinet secretary25—Common seal of the Authority

PART III—FINANCIAL PROVISIONS

26— Funds of the Authority27—Borrowing powers28—Establishment of the Kenya Roads Fund29—Financial year30—Annual estimates31—Accounts and audit


32—Authority to prepare a roads investment programme33—Authority to prepare annual works programme34—Expenditure outside the budget35—Principles of operation36—Charges and fees to be gazette37—Recovery of debts38—Annual reports

PART IV—GENERAL POWERS OF THE AUTHORITY

39—Acquisition of land for the purposes of the Authority40—Power to enter land and survey land41—Power to enter land to prevent accidents, etc.42—Power to enter and to alter position of pipes, etc.43—Power to remove pipes etc. from within the road reserves44—Power to take water45—Compensation

PART V— MISCELLANEOUS

46—Performance agreement47—Cabinet Secretary’s power of direction48—Roads to be classified49—Inventory of roads50—Structures and other works on, over and below roads on certain other land51—Liability of owner and driver for damage52—Proceedings on failure of Authority to comply with the Act53—Exercise of certain powers of delegation under the Act54—Authorization of employees etc55—Accomodation works56—Additional accommodation works57—Major offences58—Other offences59—False returns60—Application of regulations to state vehicles61—Detention of vehicles62—Nuisance caused by vehicles on roads63—Exemption64— Service of notice, etc. on the Director General65—Service of notice, etc. by Authority66—Limitation of savings67—Restriction on execution against property of Authority68—Protection of name69—Consultation with users or departments70— Protection from personal liability71— Exemption from stamp duty


72—Management of information73—General Penalty74— Regulations75— Repeals 76—Review and revocation of certain legal notices

PART VI— TRANSITIONAL PROVISIONS

77— Savings and transitional provisions78—Interim Transition Advisory Committee

Schedule (S. 14)

A Bill for

An ACT of Parliament to give effect to the Fourth Schedule to

the Constitution in relation to the roads subsector; to

review, consolidate and rationalize the legal and


institutional framework for management of the road

network and roads sub sector in a more efficient and

effective manner; to establish Kenya Roads Authority; to

provide for the membership, functions and powers of the

Authority; and for connected purposes.

ENACTED by the Parliament of Kenya as follows—

PART I—PRELIMINARY

Short title. 1. This Act may be cited as the Kenya Roads Act, 2013 and shall come into operation on such date as the cabinet Secretary may, by notice in the Gazette appoint.

Interpretation. 2. (1)In this Act, unless the context otherwise requires—

“appointed day” means the day on which this Act comes into force;

“Authority” means the Kenya Roads Authority established under section 5;

“Board” means the Board of the Authority constituted under section 6;

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

“Chairperson” means the Chairperson of the Authority appointed under section 6;

“county roads” include all roads within the boundary of a county and which have not been gazetted as national roads;

“Director General” means the Director General of the Authority;

“Directorate” means any Directorate created under section 11;

“former authorities” means the following former


authorities established by a repealed Act or a revoked legal notice, existing immediately before the appointed day —

(a) the Kenya National Highways Authority;(b) the Kenya Rural Roads Authority; and (c) the Kenya Urban Roads Authority;

“former boards” means the following former boards established by a repealed Act, existing immediately before the appointed day—

(a) the Board of the Kenya National Highways Authority;(b) the Board of the Kenya Rural Roads Authority; (c) the Board of the Kenya Urban Roads Authority; and (d) the Kenya Roads Board.

“member” means a member of the Board;

“Fund” means the Kenya Roads Fund established under section 28;

“national road” means a road gazetted as such by the Cabinet Secretary and includes any primary road linking Kenya to a neighboring country, two or more county head quarters or interconnecting two or more parts of the country; and

“public road” includes a highway, lane, footway, alley or passage, or any land reserved, used or intended to be used as a means of access to two or more premises.

(2) Notwithstanding the provisions of subsection (1), until after the first general elections under the Constitution, references in this Act—

(a) to a Cabinet Secretary shall be construed to mean Minister; and

(b) to a Principal Secretary shall be construed to mean Permanent Secretary.

Object and purpose of the Act.

3. The purpose of this Act is to give effect to the Fourth Schedule to the Constitution in relation to the roads subsector and to review, consolidate and rationalize the legal and institutional framework for management


of the road network in Kenya.

Guiding principles.

4. In the performance of its functions and the exercise of its powers, the Authority must be guided by—

(i) the national values and principles of governance set out by Article 10 of the Constitution;

(ii) the values and principles of public service set out by Article 232 of the Constitution;

(iii) the principles of leadership and integrity set out in Chapter Six of the Constitution; and

(iv) the principles of intergovernmental relations as envisaged in the Intergovernmental Relations Act, 2012.

PART II—ESTABLISHMENT, COMPOSITION AND FUNCTIONS OF THE KENYA ROADS AUTHORITY

Establishment and composition of the Authority.

5. (1) There is established the Kenya Roads Authority.

(2)The Authority is a body corporate with perpetual succession and a common seal and shall in its corporate name be capable of—

(a) suing and being sued;(b) taking, purchasing or otherwise acquiring,

holding, charging and disposing of movable and immovable property;

(c) borrowing and lending money; and(d) doing or performing all such other things or acts

as may be necessary in furtherance of its purpose and functions.

(3) Subject to the transitional provisions in Part VI, the Authority is the successor to the former Kenya National Highways Authority, Kenya Rural Roads Authority, Kenya Urban Roads Authority and the Kenya Roads Board existing immediately before the commencement of this Act.(4) The headquarters of the Authority is the capital city, but the Authority may establish such administrative regions and regional offices, as may be necessary for the furtherance of its functions.


(6) Where the Authority establishes administrative regions and regional offices under subsection (4), it may delegate to such offices such procurement functions, activities and authority as may be determined by the Board, which delegation shall be in compliance with the law governing public procurement and disposal.

Board of the Authority.

6. (1) There is a Board of Authority consisting of—(a) a non-executive Chairperson to be appointed by the President;(b) the Principal Secretary in the ministry or State department responsible for matters relating to roads or an alternate; (c) the Principal Secretary in the ministry or State department responsible for matters relating to transport or an alternate; (d) the Principal Secretary in the ministry or State department responsible for matters relating to finance or an alternate; (e) the Attorney-General or an alternate;(f)one representative of the National Planning Authority;(g) two persons, one engineer and one surveyor nominated by the professional bodies representing engineers and surveyors and appointed by the Cabinet Secretary; (h) two persons, one advocate and one accountant, not being public officers, nominated by the professional bodies representing advocates and accountants and appointed by the Cabinet Secretary; (i) ; (j)Director-General; and(k) the Board Secretary.

(2) The Director General and the Board Secretary are ex-officio members of the Board and shall have no voting rights.

General duties and responsibilities of the Board.

7. (1) The Board shall be responsible for overseeing the operations of the Authority with the goal of—


(a)attaining equality in the development of road network in all parts of Kenya;

(b)securing continuing improvements of performance;

(c) protecting the long term viability of the Authority; and

(d)ensuring that financial needs of the Authority are addressed.

(2) Without limiting the effect of subsection (1), the Board shall ensure that—

(a)appropriate strategic plans consistent with government roads subsector policy and targets are in place;

(b)the Authority has management structures and systems for monitoring management performance against plans and targets and that corrective action is taken when necessary;

(c) appropriate systems and practices are established for management, financial planning and control, including systems and practices for the maintenance of accurate and comprehensive records of all transactions, assets and liabilities and physical and human resources of the Authority;

(d)all such plans, targets, structures, systems and practices are regularly reviewed and revised as necessary to address changing circumstances and reflect best practices;

(e)the Authority observes high standards of corporate ethics;

(f) the government is advised, as soon as practicable, of any material development that—

(i) adversely affects the financial or operating capacity of the Authority; or (ii) gives rise to an expectation that the Authority may not be able to meet its debts as and when they fall due; and


(g) all information furnished by the Authority is accurate and comprehensive.

Powers of the Board.

8. (1) The Board shall have all powers necessary for the proper performance of the functions of the Authority under this Act.

(2)Without prejudice to the generality of the foregoing, the Board shall have power to—

(a) to advise the Cabinet Secretary on matters of policy relating to roads;(b) ensure protection, where necessary, of the intellectual property rights for the assets of the Authority;(c) to oversee the effective coordination of the operations of the Directorates;(d) to enter into agreements or arrangements with institutions or professional organizations as the Board may consider appropriate under this Act and in furtherance of the purpose for which the Authority is established;(e) to manage, supervise and administer the assets of the Authority in such a manner as best promotes the purpose for which the Authority is established;

(f) to determine the provisions to be made for capital and recurrent expenditure, and for reserves of the Authority;

(g) to receive any grants, gifts, donations or endowments on behalf of the Authority;

(h) delegate any of its powers to any committee of the Board constituted under this Act, or to any officer, employee, agent or other staff of the Authority;(i) invest any funds of the Authority not immediately required for its purposes in the manner provided in section 26 (2); and(j)undertake any activity necessary for the fulfillment of any of the functions of the Authority.

Procedure for 9. (1) The recruitment and appointment of the members


appointment of certain members.

of the Board listed under section 6 (1) (a), (g), (h) and (j) shall be—

(a)carried out in a competitive and transparent manner;

(b)based on merit; and

(c) in line with the constitutional requirements for public service.

(2) In appointing persons as chairperson and members of the Board of the Authority, the President and the Cabinet Secretary shall ensure that—

(a) the Board reflects the regional and ethnic diversity of the people of Kenya; and

(b) that not more than two-thirds of the members are of the same gender.

Qualifications and appointment of chairperson and members.

10. (1)A person is qualified for appointment as chairperson or member if such person—

(a)is a citizen of Kenya;

(b)holds a masters degree from a recognized university; a

(c) has knowledge and at least ten years experience in matters relating to Highway or Electrical Engineering, Land Surveying, Transport Economics, Procurement, Finance & Administration or Human Resources; and

(d)meets the requirements of leadership and integrity set out in chapter six of the Constitution.

(2) A person shall not be qualified for appointment as the Chairperson or as a member under section 6(a), (g) and (h) if such person—

(a) is a State officer;

(b) is declared to be of unsound mind;


(c) is an un-discharged bankrupt; or

(d) has been removed from office for

contravening the provisions of the

Constitution or any other written law.

Committees of the Board.

11. (1) The Board may establish committees for the better carrying out of its functions.

(2) A committee established under subsection (1) may comprise members of the Board and such other co-opted persons who may not be more than two as the Board may determine but no decision of any committee shall be effective unless it has been confirmed by the Board.

(3) The persons co-opted under subsection (2) must not be more than two.

Term of office 12. (1) The Chairperson and members of the Board shall hold office on a part-time basis for a term of four years and shall be eligible to apply for re-appointment for one further term.

(2) Where the chairperson or a member opts to apply for re-appointment under subsection (1), the re-appointment shall be considered based on the performance of the applicant.

Remuneration of members.

13. The members of the Board shall be paid such allowances as the Cabinet Secretary may from time to time determine in consultation with the Salaries and Remuneration Commission.

Meetings of the Board.

Cap. 446

14. (1) The business and affairs of the Board shall be conducted in accordance with the Schedule.

(2) Except as provided in the Schedule, the Board may regulate its own procedure subject to the provisions of the law governing the meetings and proceedings of Boards of State Corporations.

(3) The Board may invite any person to attend any of its meetings and to participate in its deliberations,


but such person shall not have a vote in any decision of the Board.

Removal from office.

15. (1) The chairperson or a member may be removed from office for—

(a) inability to perform the functions of the office arising out of physical or mental incapacity;

(b) gross misconduct;

(c) incompetence or negligence of duty;

(d) bankruptcy; or

(e) absence from three consecutive meetings of the Board without a reasonable explanation.

(2) The Cabinet Secretary may, upon the recommendation of the Board terminate the appointment of a member of the Board on any of the grounds specified under subsection (1).

(3) Before the Cabinet Secretary makes a decision under subsection (2), the person shall be given an opportunity to provide a defence against any of the allegations.

Vacation of office.

16. A person shall cease to be a member of the Board if such person—

(a)resigns in writing, to the Cabinet Secretary;

(b)is convicted of a criminal offence and sentenced to a term of imprisonment of not less than six months;

(c) is declared bankrupt;

(d)is unable to perform the functions of his or her office by reason of mental or physical infirmity; or

(e)dies.


Filling of vacancy. 17. Where a vacancy occurs in the membership of the

Board under section 17 or 18, the Cabinet Secretary shall, if the vacancy relates to any of the positions specified under section 8 (a) or (d), appoint a new member in accordance with the provisions of this Act.

Directorates, etc. of the Authority and their functions.

18. (1)The Authority may create within itself such directorates, divisions or units and appoint thereto such staff as it may determine.

(2)A Directorate created under subsection (1) shall be headed by a Director and shall act in accordance with the provisions of this Act.

(3) Each Directorate shall have such autonomy as to enable it discharge its professional mandate and shall for purposes of enabling the Authority meet the relevant obligations especially with respect to standards, each Directorate shall be the recognized entity to represent the Authority in that behalf as the competent authority.

(4) Without prejudice to the generality of subsection (1), there are established the following directorates of the Authority—

(a) Directorate of National Trunk Roads whose powers and functions are to—

(i) design, construct and manage national roads;(ii) maintain and rehabilitate national roads;(iii) control axle load on national roads;(iv) promote and regulate road traffic management on the national roads;(v) promote participation of the private sector in the financing and management of national roads;(vi) acquire land for national roads expansion and drainage way leaves in liaison with the National Land Commission; and


(vii) perform such other functions as may be assigned to it under this Act or any other written law;

(b) Directorate of Rural Roads whose powers and functions are to support the county governments as envisaged under Article 190 of the Constitution in the management, development, rehabilitation and maintenance of rural roads and specifically assisting the county government in—

(i) progressively establishing a county roads authority;

(i) constructing, upgrading, rehabilitating and maintaining roads under their control;(ii) controlling reserves for rural roads and access to roadside developments;(iii) implementing road policies in relation to rural roads;(iv) ensuring adherence by motorists to the rules and guidelines on axle load control prescribed under the Traffic Act or any regulations under this Act;(v) ensuring that the quality of road works is in accordance with such standards as may be defined by the Authority;(vi) in collaboration with the Ministry responsible for transport and the Police Department, overseeing the management of traffic on rural roads and issues related to road safety;(vii) collecting and collating all such data related to the use of rural roads as may be necessary for efficient forward planning under this Act;(viii) monitoring and evaluating the

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use of rural roads;(ix) planning the development and maintenance of rural roads;(x) liaising and co-ordinating with other authorities in planning and operations in respect of rural roads;(xi) preparing the road work programmes for all rural roads;(xii) advising the County Governor on all issues relating to rural roads; and(xiii) performing such other functions related to the implementation of this Act as may be directed by the Authority;

(c) Directorate of Urban Roads whose powers and functions are to support the county governments as envisaged under Article 190 of the Constitution in the management, development, rehabilitation and maintenance of all public roads in the urban areas and cities in the county except where those roads are national trunk roads and specifically assisting the county government in—

(ii) progressively establishing a county roads authority;

(iii) constructing, upgrading, rehabilitating and maintaining roads under its control;

(iv) controlling urban road reserves and access to roadside developments;

(v) implementing roads policies in relation to urban roads;

(vi) ensuring adherence by motorists to the rules and guidelines on axle load control prescribed under the Traffic Act and



under any regulations under this Act;

(vii) ensuring that the quality of road works is in accordance with such standards as may be defined by the Authority;

(viii) in collaboration with the Ministry responsible for transport and the Police Department, overseeing the management of traffic and road safety on urban roads;

(ix) monitoring and evaluating the use of urban roads;

(x)planning the development and maintenance of urban roads;

(xi) collecting and collating all such data related to the use of urban roads as may be necessary for efficient forward planning under this Act;

(xii) preparing the road works programmes for all urban roads;

(xiii) liaising and co-coordinating with other road authorities in planning and on operations in respect of urban roads;

(xiv) advising the County governor on all issues relating to urban roads; and

(xv) performing such other functions related to the implementation of this Act as may be directed by the Authority;

(d) Directorate of Materials Testing and Research


whose powers and functions are to—

(i) undertake research in road transportation;(ii) keep road pavement inventory, axle load and pavement performance monitoring;(iii) develop and review road construction, specifications and testing standards;(iv) provide material testing services;(v) conduct foundations and geotechnical investigations for bridge and culvert building sites;(vi) Research road construction material sources and slope stability; and

(vii) perform such other functions related to the implementation of this Act as may be directed by the Authority;

(e) Directorate of Mechanical Transport and Plant Services whose powers and functions include—

(i) provision of road construction and maintenance equipment on commercial basis;(ii) provision of transport services;(iii) advise on procurement and disposal of vehicles, plant and equipment;(iv) inspection and identification of private garages suitable for repairing national and county governments vehicles, plant and equipment;(v) assessment of transport charges for national and county government officers who are proceeding on transfer;(vi) valuation of vehicles, plant and equipment for purposes of


determining resale value for disposal; security for costs in courts of law; insurance and loans for public officers desiring to purchase used vehicles;(vii) suitability and occupational testing of drivers, motor cyclists and plant operators for employment in the public sector; (viii) inspection of imported second hand vehicles for conformity to Kenya Bureau of Standards KEBS 1515-2000 specifications for roadworthiness;(ix) inspection of national and county government vehicles, plant and equipment for purposes of maintenance, repairs and disposal; (x) post repair inspection to check quality and conformity of repairs requirements; (xi) inspection of damages and losses caused by accident, abuse and misuse of equipment with view to establishing liability;(xii) manufacture and repair of safes, cash boxes, strong room doors and other fabrications;(xiii) preparation of technical specifications to procure vehicles, plant, tools, equipment and machinery and other related materials;(xiv) pre-delivery inspections of vehicles, plant, tools, equipment and machinery to ensure adherence to clients’ technical specifications;(xv) standardization of national and county government vehicles;(xvi) repair and maintenance of the Mechanical Transport and Plant Services Directorate; and;

(xvii) such other functions related to the implementation of this Act as may be directed by the Authority; and

(f)Directorate of the Kenya Roads Fund whose


powers and functions is to manage and audit the financing of the maintenance, rehabilitation and development of the road network in Kenya by the Fund and to advise the Authority accordingly and specifically—

(i) co-ordinate the optimal utilization of the Fund in implementation of programmes relating to the maintenance, rehabilitation and development of the road network ;

(ii) seek to achieve optimal efficiency and cost effectiveness in road works funded by the Fund;

(iii) based on a five year road investment programme approved by the Authority in consultation with Cabinet Secretary, determine the allocation of financial resources from the Fund or from any other source available to the Authority required by road agencies for the maintenance, rehabilitation and development of the road network to ensure that the allocation of Funds is pegged to specific categories of roads at the rates to be determined by the Authority;

(iv) monitor and evaluate, by means of technical, financial and performance audits, the delivery of goods, works and services funded by the Authority;

(v) in implementing paragraph (iv), pay due regard to public procurement and disposal regulations and additional guidelines issued or


approved by the Authority;

(vi) recommend to the Authority appropriate levels of road user charges, fines, penalties, levies or any sums required to be collected under the Road Maintenance Levy Fund Act, 1993 and paid into the Fund;

(vii) recommended to the Cabinet Secretary such periodic reviews of the fuel levy as are necessary for the purposes of the Fund, and

(viii) identify, quantify and recommend to the Cabinet Secretary such other potential sources of revenue as may be available to the Fund for the development, rehabilitation and maintenance of roads; and

(ix) perform such other functions related to the implementation of this Act as may be directed by the Authority.

(5) In the execution of their functions under this Act, a Directorate shall ensure—

(a) development, rehabilitation and maintenance of the road network consistent with the economy and set standards;

(b) that its operations are conducted efficiently, economically and with due regard to safety;

(c) that financial administration is conducted in accordance with the provisions of this Act and regulations



made thereunder; and

(e)that it collects applicable road user charges, fines, penalties, levies or any other sums paid in relation to its services.

(6)

Director General and other directors

19. (1) There shall be a Director General of the Authority who shall be appointed by the by the Cabinet Secretary on the recommendation of the Board, on such terms and conditions as may be specified in the instrument of appointment;

(2) A person is qualified for appointment as Director General or a Director if that person—

(a) is a citizen of Kenya;(b) is registered with the Engineers Registration Board of Kenya in the category of registered engineer in the field of highway engineering and is a member of the Institution of Engineers of Kenya;

(c) has at least fifteen years' post-registration experience in the field of road and highway engineering; and

(d) meets the requirements of leadership and integrity set out in chapter six of the Constitution;

(3) The Director General is the Chief Executive Officer and the Accounting Officer of the Authority.

(4) The Director General is subject to the direction of the Board and is responsible to it for the—

(a) implementation of the decisions of the Board;

(a) day to day management of the affairs of the Board;

(b) organization and management of the


employees; and

(c) any other function that may be assigned by the Board.

(5) The Director General shall hold office for a term of five years and shall be eligible for re-appointment only once based on performance.

Removal of the Director General.

20. (1) The Director General may be removed from office by the Cabinet Secretary on the recommendation of the Board, in accordance with the terms and conditions of service, for—

(a) inability to perform the functions of the office arising out of physical or mental infirmity;

(b) gross misconduct or misbehavior;

(c) incompetence or neglect of duty;

(d) a violation of the Constitution; or

(e) any other ground that would justify removal from office under the terms and conditions of service.

(2) Before the Director General is removed under subsection (1), the Director General shall be given—

(a) sufficient notice of the allegations made against them; and

(b) an opportunity to present their case against the allegations, either in person or by a legal representative.

Secretary to the Board.

21. (1) There shall be a Secretary to the Board who shall be appointed by the Board on such terms and conditions as may be specified in the instrument of appointment.

(2) A person is qualified for appointment as Secretary


if the person—

(a) is a citizen of Kenya;

(b) holds a degree from a university recognized in Kenya;

(c) has at least five years experience in any of the following fields—

(i) public administration;

(ii) business administration;

(iii) finance;

(iv) management;

(v) governance; or

(vi) law;

(d) is a member of the Institute of Certified Public Secretaries of Kenya in good standing as provided under the law governing Certified Public Secretaries; and

(a) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.

Employees of the Authority.

22. (1) The Authority may engage such other employees as it may consider sufficient for the performance of its functions under this Act.

(2) The terms and conditions of employees of the Authority shall be determined by the Board upon consideration of advice from the Salaries and Remuneration Commission.

Authority to make regulations relating to employees.

23. The Authority may make regulations generally relating to the conditions of service of its employees, and in particular, but without prejudice to the generality of the foregoing, may make regulations


relating to—

(a) the appointment, dismissal, discipline, pay and leave of, and the security to be given to, staff;

(b) appeals by officers and servants against dismissal or other disciplinary measures;

(c) the establishment and maintenance of medical benefits and loan funds, and the contributions payable thereto and the benefits recoverable therefrom.

Regulations on employees by Cabinet Secretary.

24.Subject to this Act, the Cabinet Secretary may make regulations generally relating to the conditions of service of employees of the Authority and, without prejudice to the generality of the foregoing, may make regulations relating to — (a) the grant of pensions, gratuities and other retiring allowances to employees and their dependants and the grant of gratuities to the estate or dependants of deceased employees.

(b) the establishment and maintenance of medical funds, superannuation and provident funds and the contributions payable thereto and the benefits receivable therefrom; and

(c) the liability or otherwise to assignment, attachment, sequestration or other levy of sums payable to an employee or other persons under regulations made under this section.

Common seal of the Authority.

25. (1)The affixing of the common seal of the Authority may be authenticated by the signature of the Chairperson and the Director General.

(2) A document not required by law to be made under seal and all decisions of the Authority may be authenticated by the signatures of the chairperson and the Director-General.

(3) Where the chairperson or the Director-General is absent, the Board may nominate a member to


authenticate the seal on behalf of either the Chairperson or the Director-General.

(4) The common seal of the Authority shall be kept in such custody as the Board may direct and shall not be used except on the order of the Authority.

(5) The common seal of the Authority when affixed to a document and authenticated shall be officially noticed and unless the contrary is proved, an order or authorization of the Authority under this section shall be presumed to have been given.

PART III—FINANCIAL PROVISIONS

Funds of the Authority.

26. (1) The funds of the Authority consist of—

(a) the Kenya Roads Fund established under section 28;

(a) monies provided by Parliament for the purposes of the Authority;

(b) such moneys as may be payable to the Authority pursuant to this Act or any other written law;

(c) such monies or assets as may accrue to the Authority in the course of the exercise of its powers or the performance of its functions under this Act; and

(d) all monies from any other lawful source provided or donated or lent to the Authority.

(2) The receipts, earnings or accruals of the Authority and the balances at the end of each financial year shall be retained for the purposes for which the Authority is established.

(3) Subject to the written approval of the Cabinet


Secretary and the National Treasury, funds of the Authority shall be invested in such a manner as the Authority may deem proper.

Borrowing powers. 27. (1) Subject to subsection (2), the Authority may

borrow money required for the exercise of its functions and for meeting its obligations after approval by the Cabinet Secretary and the Cabinet Secretary responsible for finance.

(2) The approval under subsection (1) may be either general or limited to a particular transaction and may be either conditional or unconditional.

Establishment of the Kenya Roads Fund.

28. (1)There is established a fund to be known as the Kenya Roads Fund which shall be the successor to the former the Kenya Roads Board Fund.

(2) The proceeds of the Fund shall be utilized to finance and supplement the financing of the infrastructural developments and services required to be undertaken by the Authority and its Directorates under this Act;

(3) There shall be paid into the Fund —

(a) all proceeds from the Road Maintenance Levy Fund;(b) all proceeds of the Mechanical and Transport Fund;

(c) 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;

(d) such sums as may be payable to the Authority pursuant to this Act or any other written law, or pursuant to any other gift or trust; and

(e) all the monies from any other source provided for or donated or lent to the Authority.


(4) There shall be paid out of the Fund any expenditure incurred by the Authority in the exercise of its powers or the performance of its functions under this Act.

(5) Subject to subsection (6), the Cabinet Secretary, the Directorates and the Kenya Wild Life Service shall be allocated the proceeds of the Fund using the following formulae—

(a) Directorate of National Trunk Roads—50%;

(b)Directorate of Rural Roads—25%;

(c) Directorate of Urban Roads—15%;

(d)Directorate of Roads Fund—1%;

(e)Cabinet Secretary and Directorates of Mechanical Transport and Plant Services and Materials Testing and Research —8% to be shared on a formulae to be agreed; and

(f) Kenya Wildlife Service—1%.

(6) The Authority shall with the approval of the Cabinet

Secretary, set a ceiling of the money which in any one year

may be spent on recurrent expenditure which shall not

exceed 25% of the total collections in that year.

(7) Despite subsection (5), Parliament shall every financial year allocate additional funds to the Authority for operations and maintenance.

(8)The Fund shall be managed through a special account to be managed by the Director-General in consultation with the Board.

(9)The Cabinet Secretary shall, in consultation with the Authority, make rules to provide for the operation of the Fund and its management.


Financial year.

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

Annual estimates.

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

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

(a) payment for the infrastructural developments and provision of services;

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

(c) payment of pensions, gratuities and other charges in respect of retirement benefits which are payable out of the funds of the Authority;

(d) acquisition, maintenance, repair and replacement of the equipment and other movable property of the Authority; and

(e) creation of such funds to meet future or contingent liabilities in respect of benefits, insurance and the replacement of buildings or equipment.

(3) The annual estimates shall be approved by the Board at least two months before commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for presenting before the National Assembly.

Accounts and Audit.

31. (1) The Authority shall keep proper books of account of the income, expenditure, assets and liabilities of the Authority, and shall in this regard be subject to the provisions of the law regulating State Corporations.

(2) The annual accounts of the Authority shall be audited and reported upon in accordance with the provisions of the law relating to public audit.

Authority to prepare a roads investment

32. (1) The Cabinet Secretary shall, once in every five years, in consultation with the Authority cause to be


programme.

prepared a road investment program for approval by the Cabinet Secretary responsible for finance.

(2) The road investment programme prepared under subsection (1) shall outline development and maintenance priorities costed with respect to stated sections of road, and also aggregated by class, traffic loading or such other detail as may be specified.

(3) All annual work programmes prepared or implemented by the Authority shall be based on the approved five-year road investment programme.

Authority to prepare annual works programme.

33. An Authority shall, not later than six months before the end of each financial year, cause to be prepared and submitted to the Cabinet Secretary for approval an annual works program based on the five-year road investment program in respect of the ensuing financial year, comprising estimates of expected maintenance, development and capital expenditure of the Authority in the said financial year to be financed by the Fund.

Expenditure outside the budget.

34. Any activity outside the budget approved under section 30 shall only be undertaken with the approval of the Cabinet Secretary, and shall be funded by the person, body or agency recommending it.

Principles of operation. 35. The Authority shall perform its functions in accordance

with sound financial principles and shall ensure, as far as reasonably practicable, that its expenditure is properly chargeable to its revenue.

Charges and fees to be gazetted.

36. (1) Where the Authority, under section 26(1)(d) stipulates levies, charges or fees for any of its services or for use of its facilities, the schedule of charges shall be published in the Gazette. (2) The schedule of charges shall come into force on a date specified therein, which shall be at least thirty days following gazettement.

(3) If any amount due and payable under this section is not paid by any party after demand by the Authority, and remains unpaid beyond the time specified for payment


thereof, the Authority may seize the vehicle or other property of the debtor after giving reasonable notice of such seizure, and may detain such vehicle or property until payment is made

Recovery of debts. 37. All debts owed to the Authority under this Act shall be

recoverable summarily.Annual reports. 38. (1) The report of the Authority shall, in respect of the

financial year to which it relates, contain—

(a) the financial statements of the Authority;

(b) a description of the activities of the Authority;

(c) such other statistical information as the Authority considers appropriate relating to the Authority’s functions; and

(d) any other information relating to its functions that the Authority considers necessary.

(2) The Authority shall publish and publicize the annual report in such accessible manner as it considers appropriate.

PART IV—GENERAL POWERS OF THE AUTHORITY

Acquisition of land for purposes of the Authority.

No. 6 of 2012.

39. Whenever the Authority requires any land for its purposes, the Cabinet Secretary shall submit a request for the acquisition to the National Land Commission and the provisions of Part VIII of the Land Act, 2012 shall apply.

Power to enter and survey land.

40. (1) Any authorized employee of the Authority may, for the purposes of the Authority, enter upon any land and survey such land or any portion thereof. (2) Where any damage to land is caused by reason of the exercise of the powers conferred by this section, the owner or occupier of the land shall be entitled to compensation therefor in accordance with this Act.

Power to enter land to prevent

41. (1) Any authorized employee of the Authority may for the purposes of preventing the occurrence of


accidents, etc. any accident, preserving the safety of traffic or the safe operation of any service provided by the Authority, or repairing any damage caused by an accident, enter upon any land and—

(a) cut down or remove any tree or other obstruction, not being a building, which obscures the view of any traffic sign, which is likely to cause any obstruction or any danger to the safety of traffic or of any such service; or

(b) execute such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident.

(2) If any tree or other obstruction cut down or removed under subsection (1) (a) came into existence subsequent to the erection of any traffic sign or to the service being provided at that place, no compensation shall be payable in respect of such entry, or the cutting down or removal of such tree or other obstruction.

Power to enter and to alter position of pipes, etc.

42. (1) Subject to the provisions of this section, the Authority, or any of its employees authorized in that behalf, may, for the purposes of the Authority, enter upon any land and alter the position of any electric, telephone, telegraphic, fibre optic or other wire of whatsoever nature, or the position of any drain or sewer.

(2) Where an Authority intends to exercise any power under subsection (1), it shall give reasonable notice of its intention to do so to the person having control of the pipe, wire, sewer or drain and — (a) such person may authorize a representative to superintend such work and may require the Authority to execute such work to the satisfaction of such representative; and

(b) the Authority shall make arrangements for the maintenance of the supply of gas, oil, compressed air or electricity, for the continuance of the telephone, telegraph or other wire-borne communications or for the maintenance of the sewer or drainage, as the case


may be, during the execution of such work.

(3) Where any damage is caused by reason of the exercise of the powers conferred by this section, the person suffering such damage shall be entitled to compensation therefor in accordance with this Act.

Power to remove pipes etc from within the road reserve.

43. (1) For purposes of this section—(a) "pipe-borne utilities" refers to any pipes, devices and fittings for the supply or transmission of gas, oil products, water, wastewater, compressed air and any material conveyed by means of piping;(b) "wire-borne utilities" refers to wires, devices and fittings for the transmission of electricity, telephone services, telegraph services, data and any other service conveyed by means of conductive wire, fibre optic cable or other wire or cable of whatsoever nature; (c) "infrastructure utilities" refers to pipe borne utilities, wire-borne utilities, covered or open drains and any other physical device for the provision, conveying or supply of services.

(2) Where any infrastructure utility is located within a road reserve, the provider or operator of such infrastructure utility shall, upon written request by the Authority, relocate such infrastructure utility to a location or alignment approved by the Authority at no cost to the Authority.

(3) Where the Authority intends to exercise any power under subsection (2) it shall give reasonable notice of its intention to do so to the person having control of such infrastructure utility, and such person shall cause to be removed such infrastructure utility within sixty days.

(4) Where, under subsection (2) or (3), any person having control of an infrastructure utility fails to remove such infrastructure utility within the time stated in the notice, the Authority may remove such infrastructure utility at the cost of the person who was unable to comply with the notice under subsection (3).

Power to take 44. The Authority may, for its purposes, take any


water. water from any natural watercourse subject to the provisions of the law relating to water.

Compensation. 45. In exercising the powers conferred by sections 41, 42, 43, and 44, the Authority shall do as little damage as possible, and, where any person suffers damage, such person shall be entitled to compensation as may be agreed between them and the Authority, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice.

PART V—MISCELLANEOUS

Performance agreement.

46. (1) A performance agreement shall be made between the Cabinet Secretary and the Authority in relation to the mandate of the Authority and each of its Directorates.

(2) The performance agreement shall describe the key outputs that the Authority and each of its Directorates shall achieve in any financial year, and such outputs shall be defined in terms of performance indicators and targets.

(3) The Cabinet Secretary may request for an independent report on the implementation of the performance agreement.

(4) Failure to meet the targets as agreed upon under this section shall be a ground for the dismissal or discipline of the Director-General or a Director of the respective Directorate.

Cabinet Secretary’s power of direction.

47. (1) The Cabinet Secretary shall oversee the performance of the activities of the Authority under this Act and may, in writing, give the Authority directions on matters of policy not inconsistent with the provisions of this Act.

(2) The Cabinet Secretary may appoint an oversight committee for purposes of subsection (1).

Roads to be classified.

48. (1) All public roads under the management of the Authority shall be classified in a manner that gives


each public road such number, name or description as to uniquely identify it among all other roads of its class within the country.

(2)All existing road categorizations and classifications and associated identity numbers defined by the Ministry responsible for roads, the former authorities or the Ministry responsible for local government or a local authority prior to the commencement of this Act shall for the time being be maintained after the commencement of this Act.

(3) The Authority may with the approval of the Cabinet Secretary published in the Gazette, add, modify or remove the category of a road.

Inventory of roads.

49. (1) The Authority shall cause to be maintained and kept current an inventory of the roads under its management, in such format and with such detail, including categorization and identity details, as may be approved by the Cabinet Secretary.

(2) Such inventory as described in subsection (1) shall, with the Authority of the Cabinet Secretary be published in the Gazette.

Structures and other works on, over and below roads or certain other land.

50. (1) Except as provided in subsection (2), no person or body may do any of the following things without the Authority's written permission or contrary to such permission —

(a) erect, construct or lay, or establish any structure or other thing, on or over or below the surface of a road reserve or land in a building restricted area;

(b) make any structural alteration or addition to a structure or that other thing situated on or over, or below the surface of a road or road reserve or land in a building restriction area; or (c) give permission for erecting, constructing, laying or establishing, any structure or that other thing on or over, or below the surface of, a road or road reserve or land in building restriction area, or for any structural alteration or addition to any structure or


other thing so situated.

(2) The Authority may, in its discretion, give or refuse to give permission under this section.

(3) When giving permission the Authority may prescribe—

(a) the specifications with which the structure, other thing, alteration or addition for which permission is requested must comply;

(b) the manner and circumstances in which, the place where, the conditions on which the structure, other thing, alteration or addition may be erected, constructed, laid, established or made; and

(c) the obligations to be fulfilled by the owner in respect of the land on which the structure, other thing, alteration or addition is to be erected, constructed, laid, established or made.

(4) Where a person, without the permission required by subsection (1) or contrary to any permission given thereunder, erects, constructs, lays or establishes a structure or other thing, or makes a structural alteration or addition to a structure or other thing, the Authority may by notice in writing direct that person to remove the unauthorized structure, other thing, alteration or addition within a reasonable period which shall be stated in the notice but which may not be shorter than thirty days calculated from the date of the notice.

(5) If the person to whom a notice has been issued in terms of subsection (4) fails to remove the structure, other thing, alteration or addition mentioned in the notice, within the period stated therein, such item may be removed by the Authority itself which may recover the cost of the removal from that person.

(6) A person who contravenes any of the provisions of subsection (1) commits an offence and is liable on conviction to a term of imprisonment not exceeding one year or to a fine not exceeding one hundred thousand shillings or to both.


Liability of owner and driver for damage.

51. (1) Where a road for which the Authority is responsible is damaged —

(a) by reason of any vehicle passing over it in contravention of the provisions of any rules made by the Authority under this Act; or

(b) by reason of any vehicle passing over a bridge on the road or coming into contact with any portion thereof other than the surface of the road,

the owner of the vehicle and the person driving or propelling it shall jointly and severally be liable to the Authority for the damage.

(2) A certificate under the hand of any person authorized in that behalf by the Authority stating the amount of the cost of making good such damage shall be prima facie evidence of such cost.

Proceedings on failure of Authority to comply with the Act.

52. If at any time it appears to the Cabinet Secretary that the Authority has failed to comply with any of the provisions of this Act, the Cabinet Secretary may, by notice in writing, require the Board to make good the default within such time as may be specified in such notice.

Exercise of certain powers of delegation under the Act.

53. (1) Notwithstanding anything in any law to the contrary, a county government, a board of a city or a municipality, a town committee or other person shall not exercise any power relating to the control, maintenance, development or protection of any national trunk road except where such power has been delegated by the Authority or by the Cabinet Secretary.

(2) Notwithstanding subsection (1), the Authority shall encourage community and private sector participation in road construction, maintenance and management under its supervision and guidance.

Authorization of employees etc.

54. The Director-General may, by notice in writing, authorize any employee appointed under this section to maintain order upon any premises occupied by the


Authority for which the Director-General is responsible or on a road or vehicle of the Authority.

Accommodation works.

55. (1) Where, in the exercise of powers under this Act, the Authority constructs a new road, it shall construct and maintain the following accommodation works for the benefit of the owners and occupiers of lands adjoining those on which the road is constructed— (a) such access facilities or other works as, in the opinion of the Authority, are necessary for the purpose of making good any interruption caused by the construction of the road to the use of the lands through which the road is constructed;

(b) such culverts, drains or other works as, in the opinion of the Authority, are necessary to convey water as freely as is practicable from or to such adjoining lands as was the case before the construction of the road:

(2) Nothing in this section shall require the construction or the maintenance of any accommodation works—

(a) in such a manner as to prevent or obstruct the proper operation of the road; or

(b) where the owners or occupiers, of the lands or their predecessors in title, have received an agreed amount of compensation in consideration of such works not being constructed or maintained;

(3) Where suitable accommodation works for the crossing of roads or watercourses have been constructed under this section and such road or watercourse is afterwards diverted by some person other than the Authority, the Authority shall not be required to construct other accommodation works for the crossing of such road or watercourse.

Additional accommodation works.

56. If at any time —

(a) the owner or occupier of any lands adjacent to which a road is constructed desires any


accommodation works in addition to those, if any, constructed by the Authority under section 55; or (b) a person proposes to construct a public road or any other works across a road,

the owner, occupier or person, as the case may be, may require the Authority to construct such accommodation works —

(i) as may be agreed between them and the Authority; or

(ii) if no such agreement is reached, as may be determined by the Cabinet Secretary, and the cost of constructing such accommodation works shall be borne by the owner, occupier or person requiring them.

Major offences. 57. Any person who unlawfully—

(a) does any act which obstructs or is likely to obstruct the working of any equipment or vehicle belonging to the Authority used in its operations and which act endangers or is likely to endanger the life of any person therein; or

(b) damages or in any way interferes with any road or other property of the Authority in such a manner as to endanger the life of any person; or

(c) does any act which obstructs or is likely to obstruct the operation of vehicles on any road or the use of any weighbridge,

commits an offence and is liable on conviction to imprisonment for a term not exceeding two years, or to a fine not exceeding one hundred thousand shillings, or to both.

Other offences. 58. (1) Any person who— (a) not being specifically authorized in that behalf, or an employee or agent of the Authority or occupant of


a vehicle with justifiable cause to be present, is found during the hours of darkness on any premises occupied by the Authority; or (b) being on any premises occupied by the Authority or in a vehicle of the Authority— (i) refuses when called upon by an employee of the Authority or a police officer to give his name and address, or gives a false name or address with intent to avoid prosecution;

(ii) is in a state of intoxication or behaves in a violent or offensive manner to the annoyance of any other person;

(iii) commits any act or otherwise does anything which may cause injury to any person on such premises or upon such vehicle;

(iv) commits any nuisance or act of indecency or uses profane, obscene, indecent or abusive language;

(iv) without lawful excuse contravenes any lawful direction given by any employees; or

(vi) except with the express permission of the Director-General of the Authority, hawks, sells or exposes for sale any article or goods or service or applies for or carries on any other trade or business;

(c) writes, draws or affixes any profane, obscene, indecent, or abusive words, matter, or representative character upon any premises occupied by the Authority or upon any vehicle of the Authority;

(d) defaces the writing on any board or any notice authorized to be maintained upon any premises occupied by the Authority or upon any equipment or vehicle of the Authority;

(e) damages, or without lawful excuse interferes with any property of the Authority; or

(f) without lawful excuse, does any act which obstructs or is likely to obstruct the free movement of


vehicles on any road or the use of any road, parking area or related facility; or

(h) being a driver or conductor of any vehicle, disobeys lawful instructions while upon premises occupied by the Authority,

commits an offence and is liable, on conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding fifty thousand shillings, or to both.

False returns. 59. Any person who makes, either knowingly or recklessly, any statement which is false in any material particular in any return, claim or other document which is required or authorized to be made for the purpose of the Authority under this Act, commits an offence and is liable on conviction to imprisonment for a term not exceeding three months, or a fine not exceeding ten thousand shillings or to both.

Application of regulations to state vehicles.

60. The Cabinet Secretary may, by order published in the Gazette, exempt State vehicles or any category of State vehicles from the provisions of this Act or regulations made thereunder.

Detention of vehicles.

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

Nuisance caused by vehicles on roads.

62. No action shall lie in respect of nuisance by reason only of the noise and vibration caused by vehicles on a public road.

Exemption. 63. Notwithstanding the provisions of this Act, the Cabinet Secretary may, upon the recommendation of the Authority, by notice in the Gazette and on such terms and conditions as may be appropriate, exempt any vehicle, person, road, service or enterprise from the application of any regulations made under this Act, if such exemption is in the public interest.


Service of notice, etc., on the Director-General.

64. Any notice or other document required or authorized under this Act to be served on the Authority, or the Director-General, may be served— (a) by delivery of the notice or other document to the Director-General or to any authorized employee of the Authority;

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

(c) by sending it by registered post to the Director-General.

Service of notice, etc. by Authority.

65. Any notice or other document required or authorized under this Act to be served on any person by the Authority or the Director-General or any employee may be served—

(a) by delivering it to that person; or

(b) by leaving it at the usual or last known place of abode of that person; or

(c) by sending it by registered post addressed to that person at their usual or last known address.

Limitation of actions.

66. Where any action or other legal proceeding lies against the Authority for any act done in pursuance or execution, or intended execution of an order made pursuant to this Act or of any public duty, or in respect of any alleged neglect or default in the execution of this Act or of any such duty, the following provisions shall have effect— (a) the action or legal proceeding shall not be commenced against the Authority until at least one month after written notice containing the particulars of the claim and of intention to commence the action or legal proceedings, has been served upon the Director-General by the plaintiff or their agent; and

(b) such action or legal proceedings shall be instituted within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the





cessation thereof.Restriction on execution against property of Authority.

67. Notwithstanding anything to the contrary in any law—

(a) where any judgment or order has been obtained against the Authority, no execution or attachment, or process in the nature thereof, shall be issued against the Authority or against its property, but the Director-General shall, without delay, cause to be paid out of the revenue of the Authority such amounts as may, by the judgment or order, be awarded against the Authority;

(b) no property of the Authority shall be seized or taken by any person having by law power to attach or distrain property without the previous written permission of the Director-General.

Protection of name.

68. Any person who, without the written approval of the Authority, assumes for the purposes of business, or registers in terms of any written law relating to companies or business names under the names— "Roads Authority", or "Road Authority", commits an offence and shall be liable on conviction to imprisonment for a term not exceeding six months or a fine not exceeding one hundred thousand shillings, or to both.

Consultation with users or departments.

69. (1) In the performance of its functions or exercise of its powers under this Act, the Authority shall, where appropriate, consult with the Cabinet Secretary, other authorities, bodies or persons and users of its facilities and services.

(2) The Authority may establish such consultative mechanism as it deems appropriate to obtain the views of the users of its facilities and services.

Protection from personal liability.

70. No act done by any member of the Authority, or employee of the Authority shall, if the act was done in good faith for the purpose of carrying out the provision of this Act, subject the person to any liability, action, claim or demand.

Exemption from 71. The Authority shall be entitled, upon application


stamp duty. to the Cabinet Secretary responsible for finance, to exemption from duty chargeable under the law relating to payment of stamp duty in respect of any instrument executed by or on behalf of, or in favour of the Authority which, but for this section, the Authority would be liable to pay.

Management of information.

72. (1) The Authority shall publish and publicise all important information within its mandate.

(2) A request for information in the public interest by a citizen—

(a) shall be addressed to the Director-General or

such other person as the Authority may for the purpose designate and may be subject to the payment of a reasonable fee in instances where the Authority incurs an expense in providing the information; and

(b) may subject to confidentiality requirements of the Authority.

(3)Subject to Article 35 of the Constitution, the Authority may decline to give information to a person where—

(a)the request is unreasonable in the circumstances;

(b)the information requested is at a deliberative stage by the Authority;

(c) failure of payment of the prescribed fee; or(d)the person fails to satisfy any confidentiality

requirements by the Authority.

(4)The right of access of information under Article 35 of the Constitution is limited to the nature and extent specified under this section.

(5)Every member and employee of the Authority shall sign a confidentiality agreement.

General Penalty. 73. Any person convicted of an offence under this Act for which no penalty is provided shall be liable to a fine of not less than one hundred thousand shillings or to imprisonment for a term not exceeding two years or both.


Regulations. 74. (1) The Cabinet Secretary may, in consultation with the Authority, make regulations generally for the effective carrying out the provisions of this Act.

(2) Without prejudice to the generality of subsection (1), the regulations may provide for—

(a)the manner in which all public roads under the management of the Authority shall be classified;

(b) guidelines for public-private sector partnerships in development projects including guidelines on ownership of assets, equity, participation, sharing of returns, community participation in future earnings from the project, compensation mechanisms and payment of fees;

(c) the use, safety or maintenance of the roads falling within its responsibility;

(d)the erection of structures on, near, over or under the roads falling within its responsibility;

(e)the drainage of streets, lands, compounds and buildings adjacent to the road;

(f) the level, width and construction of roads and streets;

(g)the removal, demolition or alteration of any projection, structure or thing obstructing a road or likely to cause damage or inconvenience to road users;

(h)the fees payable for services provided by the Authority and the manner of their application;

(i) the review of functions and rationalization of the Directorates of Rural and Urban Roads; and

(j) monitoring and evaluation mechanisms for


projects undertaken under this Act. (2) The power to make regulations conferred under

this Act shall be—

(a)for the purpose and objective of giving effect to the Constitution and this Act;

(b)limited to the nature and scope specifically stipulated in the Constitution and this Act; and

(c) based on the general principles and standards contained in the Constitution and this Act.

(3) Rules or regulations made under subsection (1) may prescribe, in respect of any contravention of any provision thereof, a fine not exceeding one hundred thousand shillings or imprisonment for a term not exceeding one year or both, and may also prescribe, in the case of continuing offences, an additional penalty in respect of each day in which the offence continues.

(4) The provisions of section 34 of the Interpretation and General Provisions Act shall not apply to regulations made under this Act.

Repeals. 75. The Kenya Roads Act, 2007, the Kenya Roads Board Act, 1999 and the Public Roads of Access Act are repealed.

Review and revocation of certain legal notices.

76. The Cabinet Secretary shall review and revoke all legal notices establishing the former authorities whose functions, by virtue of this Act, falls under the purview of the powers and functions of the Authority, in order to enable the transfer of the functions, assets, and liabilities of the former authorities to the Authority, as contemplated under this Act.

PART IV — TRANSITIONAL PROVISIONS

Savings and transition.

77. (1)Despite section 75, persons who immediately before the commencement of this Act were employees of former Authorities or Boards, shall, upon the commencement of this Act, be deemed to be employees of the Authority.




(2)Upon the commencement of this Act—

(a)all the rights, duties, obligations, assets and liabilities of the former Authorities or Boards existing at the commencement of this Act shall be automatically and fully transferred to the Authority;

(b)any reference to the former Authorities or Boards in any contract or document shall, for all purposes, be deemed to be a reference to the Authority or the Board, as the case may be;

(c) the annual estimates of the former Authorities or Boards for the financial year in which this Act commences shall be deemed to be the annual estimates of the Authority for the remainder of that financial year;

(d) any administrative direction made by any of the former Authorities, Boards or the Minister which was in force immediately before the commencement of this Act shall, as long as they are consistent with this Act, have force as if it was a direction made by the Board or the Cabinet Secretary, as the case may be, under this Act;

(e)all contracts, deeds, bonds, agreements, arrangements, guarantees and other instruments made or entered into, on behalf of, or in relation to the former Authorities or Board shall have effect as if made or entered into by, on behalf of, or in relation to, the Authority;

(f) all actions, claims, arbitrations, applications and other proceedings, including proceedings on appeal or review, pending or existing immediately before the commencement of this Act, by, against, or in relation to any of the former Authorities or Boards shall have effect as if they were proceedings by, against, or in relation to the Authority, and may be continued and completed accordingly;

(g)the former Kenya National Highways Authority, former Kenya Rural Roads Authority and former


Kenya Urban Roads Authority established under Act 2 of 2007, and former Kenya Roads Board Fund established under Cap 408 shall, on the appointed date, respectively become Directorate of National Trunk Roads, Directorate of Rural Roads, Directorate of Urban Roads and Directorate of Roads Fund, subject to such rationalization measures as the Authority in consultation with the Cabinet Secretary may determine under this Act;

(h)the former Boards shall cease to exist after two years of the appointed day or on the expiry of their respective terms, whichever is earlier;

(i) the Director-General of the former Kenya National Highways Authority shall become the Director-General of the Authority in addition to being the Director of the Directorate of the National Trunk Roads until a new Director-General is appointed under this Act; and

(j) the Director-Generals of the former Kenya Rural Roads Authority and the former Kenya Urban Roads Authority shall respectively become the Director of the Directorate of Rural Roads and the Director of the Directorate of Urban Roads established under section 19, for their unexpired tenure of office; and

(k) the Executive Director of the former Kenya Roads Board established under Cap 408 shall become the Director of the Directorate of Roads Fund established under section 19, for their unexpired tenure of office.

(3) Despite subsections (1) and (2), the Cabinet Secretary in consultation with the Authority shall after every five years from the appointed date, review the functions of and rationalize, the Directorates of Rural and Urban Roads.

Interim Transition Advisory Committee.

78. (1) Upon the commencement of this Act, the Cabinet Secretary shall appoint an Interim Transition Advisory Committee for the purposes of this Part


comprising—(a) a chairperson who shall be a person qualified to be appointed as a chairperson of the Authority; (b) a representative of the Institute of Engineers of Kenya;(c) a representative of the Law Society of Kenya; (d) a representative of the Institute of Certified Public Accountants of Kenya;(e) a representative of the Institute of Surveyors of Kenya; (f) a representative of Kenya Association of Manufacturers; (g) a representative of an institution of tertiary learning; and(h) the chairpersons of the former Boards.

(2)The Committee appointed under sub section (1) shall, within two years of the appointed day, take all necessary steps, subject to such rationalization measures, as the Committee may deem necessary for the implementation of this Part.(3)The Cabinet Secretary shall, by notice in the Gazette, prescribe the powers and functions of the Committee appointed under this section.


SCHEDULE (S. 14)

PROVISIONS RELATING TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE AUTHORITY

Meetings. 1.(1) The Authority shall have at least four meetings in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.

(2) Meetings shall be convened by the Board Secretary in consultation with the chairperson and shall be held at such times and such places as the chairperson shall determine.

(3) The chairperson shall preside over all meetings and in the absence of the chairperson, by a person elected by the Authority at the meeting for that purpose.

(4) The chairperson may at any time convene a special meeting of the Authority, and shall do so within one month of the receipt by the chairperson of a written request signed by at least five other members.

(5) Unless six members otherwise agree, at least seven days’ notice of a meeting shall be given to every member.

Quorum. 2. The quorum of a meeting of the Board is six members.

Voting. 3. A decision of the Authority shall be by a majority of the members present and voting and, in the case of an equality of votes; the person presiding at the meeting shall have a second or casting vote.

Minutes. 4. Minutes of all meetings must be kept and entered in records kept for that purpose.


Disclosure of interest.

5. (1) If a person is present at a meeting of the Authority or any committee at which any matter is the subject of consideration and in which matter that person or that directly or indirectly interested in a private capacity, that person shall as soon as is practicable after the commencement of the meeting, declare such interest.

(2) The person making the disclosure of interest under subsection (1) shall not, unless the Authority or committee otherwise directs, take part in any consideration or discussion of, or vote on any question touching such matter.

(2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.

(3) A person who contravenes subsection (1) commits an offence and upon conviction is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years or to both such fine and imprisonment.

(4) A member or employee of the Authority shall not transact any business or trade with the Authority.

MEMORANDUM OF OBJECTS AND REASONS


The principal object of this Bill is to give effect to the Fourth Schedule to the Constitution in relation to the roads subsector; to review, consolidate and rationalize the legal and institutional framework for management of the road network and roads sub sector in a more efficient and effective manner.

Part I — provides for the short title, interpretation, the purpose of the Act and guiding principles.

Part II — provides for the establishment and composition of the Kenya Roads Authority, Board of Authority, powers of the Board, procedure for appointment of chairperson and members, qualifications and appointment of chairperson and members, committees of the Board, term of office, remuneration of members, meetings of the Board, removal from office, vacation of office, filling of vacancy, Directorates, etc. of the Authority and their functions, Director General and other directors, removal of the Director General, appointment of a Certified Public Secretary as Secretary to the Board, employees of the Authority, power of the Authority to make regulations relating to employees, regulations on employees by Cabinet Secretary and common seal of the Authority.

Part III— provides for financial matters. It identifies funds of the Authority, borrowing powers, and establishment of Kenya Roads Fund, financial year, annual estimates, accounts and audits of the Authority. It also provides a requirement that the Authority prepares a roads investment programme and annual works programme. Further, it provides for restriction on expenditure outside the budget, principles for operation, gazettement of fees and charges, recovery of debts and annual reports.

Part IV— relates to the general powers of the Authority part and provides for; acquisition of land for the purposes of the Authority, power to enter land and survey land, power to enter land to prevent accidents etc., power to enter and alter position of pipes etc. from within road reserve, power to take water and compensation where such acquisition is made by or on behalf of the Authority.

Part V— deals with miscellaneous matters. It provides for performance agreement, Cabinet’s Secretary power of direction, classification of roads, inventory of roads, structures and other works on, over and below roads on certain other land, liability of owner and driver of owner, proceedings on failure of Authority to comply with the Act, exercise of certain powers of delegation under the Act, authorization of employees etc., accommodation works, additional accommodation works, major offences, other offences,


false returns, application of regulations to state vehicles, detention of vehicles, nuisance caused by vehicles on roads, exemption, service of notice, etc., on the Director General, service of notice, etc., by Authority, limitation of actions, restriction on execution against property of Authority, protection of name, consultation with users or departments, protection from personal liability, exemption from stamp duty, management of information, general penalty, regulations, repeals, review and revocation of certain legal notices.

Part IV— provides for transitional issues. It provides for savings and transition to the new dispensation and the appointment of the Interim Transition Advisory Committee by the Cabinet Secretary.

Franklin Bett

Minister for Roads

Dated . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2013

Documents

The Draft Kenya Roads Bill, 2013