Customs And Excise

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PART I – PRELIMINARY
1.
Short title
This Act may be cited as the Customs and Excise Act.

2.
Interpretation
(1) In this Act, except where the context otherwise requires—
“agent” in relation to an aircraft, vessel or vehicle includes a person who notifies the proper officer in writing that he intends to act as the agent and who, or on whose behalf a person authorized by him, signs any document required or authorized by this Act to be signed by an agent:
Provided that the owner of an aircraft, vessel or vehicle, if resident or represented in Kenya, shall either himself or through his representative be deemed to be the agent for all the purposes of this Act if no agent is appointed;
“aircraft” includes every description of craft used in aerial navigation;
“approved” means approved by the Commissioner;
“approved place of loading” and “approved place of unloading” mean a quay, jetty, wharf or other place, including any part of a port or customs airport, appointed by the Commissioner by notice in accordance with section 9 to be a place where goods may be loaded or unloaded;
“beer” includes ale, porter and any other description of beer and any liquor, including beer substitute, which is produced as result of the alcoholic fermentation of an extract derived from barley malt, a cereal grain, starch or saccharine matter and hops or hops substitute, in potable water with other suitable ingredients and which contains more than two per centum of proof spirit but does not include—
(a) any beer made or brewed by any person and which is not offered for, or intended to be offered for sale;
(b) any kind of beer which the Minister may, by order in the Gazette exclude from the provisions of this Act;
“boarding station” means a place appointed by the Commissioner by notice in the Gazette to be a place for aircraft or vessels arriving at or departing from a port or place to bring to for the boarding by or the disembarkation of officers;
“bonded factory” means the premises licensed by the Commissioner for the manufacture of goods for export under bond;
“bonded warehouse” means a warehouse licensed by the Commissioner under section 51 for the deposit of dutiable goods on which duty has not been paid and which have been entered to be warehoused and includes a duty-free shop;
“brewer” means the holder of a valid licence to brew beer under section 91;
“buying commission” means fees paid or payable by an importer to his agent for the services of representing the importer in the purchase of the goods being appraised;
“by authority” means by the authority of the Commissioner or of any officer doing his duty in the matter in relation to which the expression is used;
“cargo” includes all goods imported, exported or carried coastwise in an aircraft, vessel or vehicle other than goods which are required as stores for consumption or use by or for that aircraft, vessel or vehicle, its crew and passengers, and the bona fide personal baggage of the crew and passengers;
“carriage coastwise” has the meaning assigned to it by section 81;
“cigar” means a cigar, cheroot or cigarillo prepared from tobacco;
“cigarette” means a cigarette prepared from tobacco and includes any form of tip and the paper thereof;
“Commissioner” means—
(a) the Commissioner-General appointed under section 11(1) of the Kenya Revenue Authority Act (Cap. 469); or
(b) with respect to powers or functions that have been delegated under section 11(4) of the Kenya Revenue Authority Act to another Commissioner, that other Commissioner;
“compounded spirits” means spirits which have been distinctly altered in character by redistillation with, or by the addition of, flavouring matter or other materials or ingredients; and “to compound” means to prepare compounded spirits;
“computed value” in relation to any goods, means the value of such goods determined in accordance with Method 5 set out in the Seventh Schedule;
“concessional loan” means a loan with at least twenty-five per cent grant element;
“country of export”, in relation to any goods, means the country from which such goods are shipped to Kenya;
“country of importation” means any country or customs territory into which goods are imported;
“customs” or “the customs” means the Customs and Excise Department;
“customs airport” means an airport appointed by the Commissioner by notice in accordance with section 9 to be an airport for the purposes of this Act;
“customs area” means a place appointed by the Commissioner by notice in accordance with section 9 for the deposit of goods subject to customs control;
“customs and excise revenue” means amount collectable by the customs in accordance with the provisions of this Act;
“customs control” means any measures taken by the Commissioner in relation to the goods specified in section 12 to ensure compliance with the provisions of this Act;
“customs territory” means all parts of Kenya in which this Act applies in full, but does not include an export processing zone;
“customs warehouse” means a place approved by the Commissioner for the deposit of unentered, unexamined, detained or seized goods for the security thereof or pending payment of the duties due thereon;
“denaturer” means a person holding a licence under section 91 to denature spirits; and “to denature” means to render unfit for human consumption;
“dissolving” means a dissolving of materials for making a priming or colouring solution;
“distiller” means a person holding a licence to manufacture spirits under section 91 by distillation of a fermented liquor or by any other process; and “distillery” means his factory;
“distillation period” means the period prescribed by regulations for the purpose of taking account of feints and spirits produced;
“distiller’s warehouse” means a place of security provided by a distiller and approved by the Commissioner under section 100;
“domestic”, in relation to an article, means an article normally used in the household;
“drawback” means a refund of all or part of any import duty paid in respect of goods exported or used in a manner or for a purpose prescribed as a condition for granting drawbacks;
“dumping duty” means a duty imposed by an order made under section 125;
“dutiable goods” means goods chargeable with duty under this Act;
“duty” includes excise duty, import duty, export duty, levy, imposition, tax or surtax imposed on goods, services and gaming takings under this Act;
“duty free shop” means a room or premises situated in a port and licensed by the Commissioner for the deposit of dutiable goods on which duty has not been paid and which have been entered to be warehoused for use as ship stores or for sale to passengers departing to places outside Kenya.
“excisable goods” means goods manufactured in Kenya or imported into Kenya on which an excise duty is imposed under this Act;
“excisable value” means ex-factory selling price or the value determined in accordance with section 127C;
“excise duty” means a duty of excise imposed on goods manufactured in Kenya or imported into Kenya and specified in the Fifth Schedule;
“excise stamp” means an excise stamp prescribed by the Commissioner under section 116B;
“ex-factory selling price” means the price at which goods are sold from a factory exclusive of value added tax and excise duty;
“export” means to take or cause to be taken out of the customs territory or into an export processing zone;
“factory” means any premises on which a person is licensed to—
(a) manufacture and store excisable goods;
(b) use excisable goods in other manufactures;
“feints” means spirits conveyed into a receiver in a distillery entered under this Act as a feints receiver;
“foreign port” means a place beyond the boundaries of Kenya;
“generally accepted accounting principles” means the broad guidelines or detailed procedures of accounting for the time being generally accepted in a country;
“goods” includes all kinds of articles, wares, merchandise and livestock, and, where any such goods are sold under this Act, the proceeds of sale;
“goods of the same class or kind” means goods which fall within a range of goods produced by a particular industry or industrial sector and includes identical or similar goods;
“goods under drawback” means goods in relation to which a claim for drawback has been or is to be made under section 151;
“Government warehouse” means a place provided by the Government for the deposit of dutiable goods on which duty has not been paid and which have been entered to be warehoused;
“gravity” in relation to a liquid means the ratio of the weight of a volume of the liquid to the weight of an equal volume of distilled water, the volume of each liquid being computed as at 15.55 degrees centigrade; and where the gravity of a liquid is expressed as a number of degrees that number shall be such ratio multiplied by one thousand;
“identical goods” means goods which—
(i) are the same in all respects, including physical characteristics, quality, and reputation with the goods being appraised, minor differences in appearance notwithstanding;
(ii) are produced in the same country as the goods being appraised; and
(iii) were produced by or on behalf of the person by or on behalf of whom the goods appraised were produced,
but does not include imported goods where engineering, development work, design work, plans or sketches undertaken in Kenya were supplied, directly or indirectly, by the purchaser of those goods free of charge or at a reduced cost for use in the production and sale for export of those goods;
“information technology” means any equipment or software for use in storing, retrieving, processing or disseminating information;
“import” means to bring or cause to be brought into the customs territory from a foreign country or from an export processing zone;;
“import duty” means duty imposed on goods imported into Kenya and specified in the First Schedule;
“industrial”, in relation to an article, means that the article has been shown to the satisfaction of the Commissioner to be made for use solely or principally as industrial apparatus, plant or machinery, or as a specialized part thereof;
“licence” means a valid licence issued under this Act;
“low wines” means spirits of the first extraction conveyed into a receiver in a distillery entered under this Act as a low wines receiver;
“manufacture” includes—
(a) the production of excisable goods;
(b) any intermediate or uncompleted process in the production of excisable goods;
(c) the distilling, rectifying, compounding or denaturing of spirits;
(d) the production of goods for export under bond;
(e) the processing or production of goods for export in an export processing zone.
“manufactured tobacco” means tobacco made up—
(a) ready for smoking in a pipe, other than tobacco made up by the grower without the use of machinery;
(b) ready for use in the making of cigarettes or cigars; or
(c) in the form of cake, plug, roll or stick;
“manufacture under bond” means the production of goods under a licence issued under section 58A;
“master” includes a person for the time being having or taking charge or command of an aircraft or vessel;
“materials” means goods from which excisable goods are capable of being manufactured and any residue from a process of manufacture;
“methylated spirits” means spirits denatured in accordance with a formula prescribed by regulations for methylated spirits;
“Minister” means the Cabinet Secretary for the time being responsible for matters relating to finance;
“name” includes the registered mark of an aircraft, vessel or vehicle;
“night” means the period between six o’clock in the afternoon of any day and six o’clock in the forenoon of the following day;
“officer” includes any person, other than a labourer, employed in the service of the customs or for the time being performing duties in relation to the customs;
“official aid funded project” means a project funded by means of a grant or concessional loan in accordance with an agreement between the Government and any foreign government, agency, institution, foundation, organisation or any other aid agency;
“opaque beer” means a potable beer liquor derived from the fermentation of a mash of cereal grain or vegetable or grain or vegetable products with or without the addition of sucrose or honey and which contains not less than two and a half per centum of absolute alcohol by volume;
“original gravity”, in relation to a liquid, means its gravity before fermentation;
“owner” in respect of any goods, aircraft, vessel, vehicle, plant or other thing, includes a person (other than an officer acting in his official capacity) being or holding himself out to be the owner, manufacturer, licensee, importer, exporter, consignee, agent, or the person in possession of, or beneficially interested in, or having control of, or power of disposition over, the goods, aircraft, vessel, vehicle, plant or other thing;
“package” includes every means by which goods for conveyance may be cased, covered, enclosed, contained or packed;
“plant” includes utensils, presses, machinery, mills, implements, appliances and fittings;
“point of sale” in respect of excisable goods manufactured in Kenya, means the point of delivery of the goods from the excise stockroom in an open market sale between buyer and seller independent of each other;
“port” means a place, whether on the coast or elsewhere, appointed by the Commissioner by notice in accordance with section 9, subject to any limitations specified in the notice, to be a port for the purpose of this Act; and in relation to aircraft, a port means a customs airport;
“postal article” includes any letter, postcard, newspaper, book, document, pamphlet, pattern, sample packet, small packet, parcel, package or other article whatsoever in course of transmission by post;
“Post Office” means the Postal Corporation of Kenya established under the Postal Corporation of Kenya Act, 1998;
“premises” includes any building, house, room or place;
“price actually paid or payable” means the total payments made or to be made by a buyer to or for the benefit of the seller or imported goods which are the subject of a customs valuation;
“prohibited goods” means goods the importation, exportation, or carriage coastwise of which is prohibited under the provisions of this Act or any other written law;
“proper officer” means an officer whose right or duty it is to require the performance of, or to perform, the act referred to;
“rebate” means a reduction or diminishment of charge for duty;
“rectifier” means a person holding a licence to rectify spirits under section 91; and “to rectify” means to redistill spirits removed from a spirits receiver for the purpose of purifying or adding flavour;
“rectifier’s warehouse” means a place of security provided by a rectifier and approved by the Commissioner under section 100;
“refinery” means a bonded warehouse licensed by the Commissioner for the treatment of oils;
“refund” means the return or repayment of duties already collected;
“regional market” means the countries with which Kenya shares a common border, and includes Rwanda, Burundi and the Congo;
“regulations” includes rules and any subsidiary legislation made under this Act;
“remission” means the waiver of duty or refrainment from exacting of duty;
“restricted goods” means goods the importation, exportation or carriage coastwise of which is prohibited, save in accordance with conditions regulating it, and goods the importation, exportation or carriage coastwise of which is in any way regulated by or under this Act or any other written law;
“services” means—
(a) any supply by way of business that is not a supply of goods or money; or
(b) anything which is not a supply of goods but is done for a consideration (including, if so done, the granting, assignment or surrender of any right);
“similar goods” means goods which have similar—
(a) characteristics;
(b) components;
(c) quality and reputation,
which make them commercially interchangeable in the performance of functions;
“smuggling” means the importation, exportation or carriage coastwise, or the removal from or into Kenya of goods with intent to defraud the customs, or to evade any prohibition of, restriction, on regulation or condition as to, importation, exportation, carriage coastwise or removal, of goods;
“specially denatured spirits” means spirits denatured in accordance with a formula prescribed by regulations for specially denatured spirits;
“spirits” means spirits of any description and includes all liquor mixed with spirits and all mixtures and compounds or preparations made with spirits, but does not include denatured spirits;
“still” includes any part of a still;
“sufferance wharf” means a place, other than an approved place of loading or unloading, at which the Commissioner may, subject to such conditions as he may either generally or in any particular case impose, allow goods to be loaded or unloaded;
“sufficient information” in relation to the determination of any amount, difference or adjustment, means objective and quantifiable information that establishes the accuracy of the amount, difference or adjustment;
“sugar”, for the purpose of the Fifth Schedule, means sugar of any description, finished or unfinished, and any product of any sugar manufacturing operation containing saccharine matter, but does not include glucose, jaggery, molasses, sugar candy or exhausted sugarcane pulp, nor

does it include brown sugar made by a person, and in plant and in premises, approved by the Minister, in the manufacture of which neither vacuum pan nor a vacuum evaporator has been employed;
“suspended duty” means a duty specified in the Second Schedule;
“tariff description” means the description of goods in the third column of the First Schedule;
“tax computerized system” means any software or hardware for use in storing, retrieving, processing or disseminating information relating to excise duty;
“the price paid or payable”, in relation to the sale of goods for export to Kenya, means the aggregate of all payments made or to be made, directly or indirectly, by the purchaser to or for the benefit of the vendor;
“tobacco licensee” means a person licensed to manufacture tobacco, cigarettes and cigars;
“tonne” means a metric tonne of 1,000 kilograms;
“tons register” means the tons of a ship’s net tonnage ascertained and registered according to the tonnage regulations of the Merchant Shipping Act (Cap. 389), or in the case of a ship which is not registered under that Act, ascertained as if it were so registered;
“transaction value” means the price paid or payable for imported goods, as determined in accordance with the Seventh Schedule;
“transhipment” means the movement, either directly or indirectly, of goods from an aircraft, vessel or arriving in Kenya from a foreign place, to an aircraft, vessel or vehicle departing to a foreign destination;
“transaction value” means the price paid or payable for imported goods, as determined in accordance with the seventh schedule;
“transit” means the movement of goods imported from a foreign place through Kenya to a foreign destination;
“transit shed” means a building appointed by the Commissioner by notice in accordance with section 9 for the deposit of goods subject to customs control;
“Tribunal” means the Appeals Tribunal established under section 127E;
“uncustomed goods” includes dutiable goods on which the full duties due have not been paid, and any goods, whether dutiable or not, which are imported, exported, carried coastwise or in any way dealt with contrary to the provisions of this Act;
“utensil” includes a container, tank, storage bin, receptacle or vat;
“variable import duty” means import duty imposed on goods imported into Kenya and specified in the Eleventh Schedule;
“vehicle” includes every description of conveyance for the transport by land of human beings or goods;
“vessel” includes every description of conveyance for the transport by water of human beings or goods;
“voyage” includes flight by aircraft;
“warehoused” means deposited in a Government or bonded warehouse with the authority of the person in charge of the warehouse;
“warehouse keeper” means the holder of a licence in respect of a bonded warehouse;
“wash” means the fermented liquor from which spirits are produced by distillation;
“wharf owner” includes an owner or occupier of an approved place of loading or unloading or of a sufferance wharf;
“wine” means a liquor of a strength not exceeding 50 degrees of proof which is made from fruit and sugar or from fruit and sugar mixed with any other material and which has undergone a process of fermentation and includes mead;
“worts” means the liquid obtained by dissolving sugar or molasses in water or by extracting the soluble portion of malt or corn in the process of brewing and any primary or colouring solution.

(2) For the purposes of this Act—
(a) goods shall be deemed to be entered when the entry, made and signed by the owner in the prescribed manner, is accepted and signed by the proper officer and when any duty due or deposit required under this Act in respect of the goods has been paid or security has been given for compliance with this Act;
(b) goods shall be deemed to be entered for home use when they have been declared for use in Kenya, other than temporary use, and the provisions of paragraph (a) have been fulfilled;
(c) the time of importation of goods shall be deemed to be—
(i) in the case of goods for home use the time at which the goods come within the boundaries of the customs territory; and
(ii) in the Case of export processing zone import, the time at which the goods come within the approved entry into an export processing zone;

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

(e) where an aircraft, vessel or vehicle arrives within Kenya from a foreign port or place, then, in relation to each port or place within Kenya at which it may arrive, it shall be deemed to have arrived from a foreign port or place;
(f) where an aircraft, vessel or vehicle proposes to depart from Kenya to a foreign port or place, then, in relation to each port or place within Kenya from which it may depart, it shall be deemed to be departing therefrom to a foreign port or place;
(g) a reference to Kenya, shall be deemed to include a reference to an installation within the meaning of the Continental Shelf Act (Cap. 312), whether or not situated within the territorial waters;
(h) a reference to producing goods shall include a reference to growing or manufacturing goods and to the application of any process in the course of producing goods;
(i) every act, matter or thing required or authorized by this Act to be done or performed by, with, to or before the Commissioner shall be deemed to be so done or performed if done or performed by, with, to or before an officer appointed by the Commissioner for that purpose;
(j) every person employed on a duty or service relating to the customs by order, or with the concurrence of the Commissioner shall be deemed to be the proper officer for that duty or service; and every act required by law at any time to be done by, with, to or before a particular officer nominated for that purpose shall be deemed to be so done if done by, with, to or before any person appointed by the Commissioner to act for that particular officer;
(k) customs warehouse rent payable in respect of goods stored or deposited in a customs warehouse shall be deemed to be duty;
(l) over and above the import duties chargeable in accordance with the First Schedule—
(i) an additional duty of twenty per centum shall be payable in respect of all used motor vehicles (excluding agricultural tractors of Tariff Numbers 8701.10.00, 8701.30.00 and 8701.90.00) which are imported: Provided that where the vehicle (excluding a motor-cycle)—
(ii) an additional duty of two and a half per centum ad valorem, or five per centum of the specific rate specified in the First Schedule, whichever is the higher, or such other additional duty as the Minister may, by notice in the Gazette, specify, shall be payable in respect of all goods entered for home use from an export processing zone;
(iii) an additional duty of ten per centum shall be payable in respect of temporary imports when entered for home use;
(iv) an additional duty of ten per centum shall be payable in respect of transit goods when entered for home use;

(ll) goods shall be deemed to be unassembled if imported in a completely knocked down form by an approved assembler of such goods appointed by the Commissioner by notice in the Gazette:
Provided that the Commissioner may, by notice in the Gazette, specify goods which shall, notwithstanding the provisions of this paragraph, not be deemed to be unassembled;
(m) subject to paragraph (ll) radios and radio-cassette players or recorders shall be deemed to be unassembled when imported in completely knocked down form and where, inter alia—
(i) the diodes, resistors, transistors and similar components are unmounted;
(ii) the printed circuit boards are unmounted;
(iii) the speaker or speakers are unmounted;
(iv) the knobs are unmounted;
(v) the casings are unassembled; and
(vi) the aerial is unmounted.

(n) where parts for the assembly of motor vehicles in a bonded warehouse are imported separately by an approved motor vehicle assembler, the rate of duty applicable shall, notwithstanding any other provision of this Act, be that applicable to unassembled motor vehicles:
Provided that such parts shall be imported in such condition as may be prescribed by the Commissioner.

(3) The interpretation of the First Schedule shall be governed by the following principles—
(a) the titles of sections, chapters and sub-chapters are provided for ease of reference only; and for legal purposes classification shall be determined according to the terms of the heading and tariff descriptions and any relative section or chapter notes and, where the headings or notes do not otherwise require, according to the following provisions of this subsection;
(b) (i) a reference in a tariff description to an article shall be taken to include a reference to that article whether incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article; and such a reference shall also be deemed to include a reference to that article complete or finished, or falling to be classified as complete or finished by virtue of this subsection, whether imported, unassembled or disassembled;
(ii) where parts of an article are separately imported the Commissioner may apply subparagraph (i) to those parts;
(iii) a reference in a tariff description to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances, and any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance; however classification of goods consisting of more than one material or substance shall be according to paragraph (c);

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

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

(f) for legal purposes, the classification of goods in the tariff description of a heading shall be determined according to the terms of those tariff descriptions and any chapter notes relative to those tariff descriptions and, mutatis mutandis, according to this subsection, on the understanding that only the tariff descriptions at the same level are comparable, and for the purposes of this subsection the relative section and chapter notes also apply, unless the context otherwise requires;
(g) the classification of goods within a tariff description shall have regard to the wording of the heading;
(h) where in any tariff description parts of articles are classified with those articles, mention of any of the articles in a tariff description of that heading shall be deemed to include a mention of parts of those articles, except in so far as the contrary intention appears from the wording of the tariff description;
(i) where goods are classified according to their use either by way of general description of their use or by reference to the use intended on importation or clearance through customs, the conditions of use shall not be taken to be fulfilled unless at the time of importation or clearance the intended direct use is proved to the satisfaction of the Commissioner;
(j) where an alternative rate of duty is shown, the rate chargeable is that which results in the higher duty charge.

(4) For the avoidance of doubt, the provisions of the First Schedule with respect to—
(a) tariff descriptions and the classification of goods;
(b) units of quantities,
and the rules of interpretation of that Schedule set out in subsection (3) shall apply to the Second, Fourth and Fifth Schedules.
[Act No. 13 of 1979, s. 2, Act No. 10 of 1980, s. 2, Act No. 10 of 1988, s. 2, Act No. 8 of 1989, s. 2, Act No. 12 of 1990, ss. 36-38, Act No. 8 of 1991, s. 2, Act No. 9 of 1992, s. 2, Act No. 4 of 1993, s. 2, Act No. 5 of 1994, s. 2, Act No. 6 of 1994, s. 2, Act No. 13 of 1995, s. 2, Act No. 8 of 1997, s. 2, Act No. 5 of 1998, s. 2, Act No. 4 of 1999, s. 2, Act No. 9 of 2000, s. 2, Act No. 6 of 2001, s. 2, Act No. 7 of 2002, s. 2, Act No. 15 of 2003, s. 2, Act No. 4 of 2004, s. 2, Act No. 9 of 2007, s. 2, Act No. 8 of 2008, s. 2, Act No. 10 of 2010, s. 2, Act No. 38 of 2013, s. 2.]

PART II – ADMINISTRATION
3.
Responsibility for administration, etc.
(1) The Commissioner shall, subject to the direction of the Minister, be responsible for the control and management of the customs and for the collection of, and accounting for, customs and excise revenue.
(2) The Commissioner may authorize any officer to exercise any of the powers conferred by this Act upon the Commissioner subject to such limitations as the Commissioner may think fit.
(3) An officer who is appointed to a permanent office or employment in the customs shall, on his appointment thereto, make and subscribe before a magistrate or commissioner for oaths, a declaration in the form set out in the Tenth Schedule.
[Act No. 4 of 2004, s. 3.]

4.
Customs seal and flag
(1) There shall be a seal of the customs.
(2) There shall be a flag of the customs which shall distinguish vessels employed in the service of the customs from other vessels.

5.
Officer to have powers of police officer
For the purpose of carrying out this Act, every officer shall, in the performance of his duty, have all the powers, rights, privileges and protection of a police officer.

6.
Hours of attendance
(1) The working days and hours of general attendance of officers shall be such as may be prescribed by the Commissioner.
(2) Where a person desires the attendance of an officer at a time outside the hours of general attendance, then that person shall make request therefor on the prescribed form to the proper officer at the port or place where the attendance is desired; and, subject to any regulations and to the payment of the prescribed fees, the grant of the request shall not be unreasonably refused by the proper officer.
(3) Where a person desires the attendance of an officer at any premises or place at which customs business is not normally carried on, then that person shall make request therefor on the prescribed form to the proper officer and, subject to any regulations and to the payment of the prescribed fees, the grant of the request shall be in the discretion of the proper officer.

7.
Offences by or in relation to officers
(1) An officer who—
(a) directly or indirectly asks for, or takes, in connxion with any of his duties a payment or other reward whatsoever, whether pecuniary or otherwise, or a promise or security for any such payment or reward, not being a payment or reward which he is lawfully entitled to claim or receive; or
(b) enters into or acquiesces in any agreement to do, abstain from doing, permit, conceal, or connive at, any act or thing whereby the customs is or may be defrauded, or which is contrary to the provisions of this Act or the proper execution of the duty of that officer; or
(c) discloses, except for the purposes of this Act or when required to do so as a witness in a court or with the approval of the Minister, information acquired by him in the performance of his duties relating to a person, firm or business of any kind,
shall be guilty of an offence and liable to imprisonment for a term not exceeding three years.

(2) A person who dishonestly—
(a) directly or indirectly offers or gives to an officer a payment or reward whatsoever, whether pecuniary or otherwise, or a promise or security for any such payment or reward; or
(b) proposes or enters into an agreement with an officer,
in order to induce him to do, abstain from doing, permit, conceal, or connive at, any act or thing whereby the customs is or may be defrauded, or which is contrary to the provisions of this Act or the proper execution of the duty of that officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years.

8.
Disclosure and exchange of information
Notwithstanding any other provisions of this Act, the Commissioner may—
(a) disclose information to a person in the service of the Government in a revenue or statistical department where the information is needed for the purposes of the official duties of that person solely for revenue or statistical purposes; and
(b) subject to such reciprocal arrangements as may be agreed upon by him, furnish to the competent authorities of a foreign country any information, certificate, official report or other document with a view to the prevention, investigation or suppression of offences against the laws and regulations applicable to the importation or exportation of goods into or from the territory of that foreign country.
[Act No. 4 of 1993, s. 3.]

9.
Appointment and fixing of limits of ports, customs areas,
etc.
(1) Subject to subsection (1A) the Commissioner shall by notice in the Gazette appoint and fix the limits of—
(a) ports;
(b) customs airports;
(c) places of loading and unloading within ports;
(d) boarding stations;
(e) customs areas;
(f) sufferance wharves;
(g) places for the landing and embarkation of persons;
(h) places for the examination of goods (including baggage);
(i) transit sheds;
(j) roads or routes in Kenya over which goods in transit, or carried coastwise, shall be conveyed;
(k) entrances and exits, whether general or special, to and from any customs area, port, or airport within Kenya.

(1A) Notwithstanding the provisions of subsection (1), transit sheds and other customs areas shall—
(a) only be located in plots of not less than 2.5 hectares:
Provided
that this requirement shall not apply to transit sheds appointed before 12th June, 2003;
(b) have a railway siding in case of transit sheds handling goods imported by sea;
(c) be located not more than one kilometre from the runway, in the case of transit sheds used for the handling of goods imported by air;
(d) be located within or next to existing customs areas, in the case of transit sheds at frontier ports;
(e) where located more than ten kilometres from the port, not be used for the handling of transit or transhipment goods;
(ee) where used to consolidate cargo, comply with such conditions as the Commissioner may, by notice in the Gazette, prescribe;
(f) if appointed before the commencement of this subsection, comply with this subsection not later than the 31st December, 2004.

(2) An appointment made under subsection (1) may be subject to such conditions, including the provision of suitable accommodation for officers, as the Commissioner may think fit:
Provided that—
(a) the private operators of transit sheds shall provide to the Commissioner such security to cover the duties on goods deposited therein as the Commissioner may determine; and
(b) the Commissioner may revoke the appointment of any transit shed whose average monthly revenue in the calendar year ending on 31st December, 2004, or any subsequent calendar year, is less than one hundred million shillings.

(3) The Commissioner may, in any particular case, on a temporary basis and subject to such conditions as he may think fit, permit any boarding station, area, wharf, place, road, route, entrance or exit to be used as if it had been so appointed and in that case this Act shall apply thereto as if it had been so appointed.
(4) Any person who—
(a) deposits transit goods in a place other than one appointed by the Commissioner under subsection (1);
(b) fails to comply with, or contravenes, any of the conditions prescribed by the Commissioner with respect to the operation of transit sheds;
(c) deposits or allows any person to deposit prohibited goods in the transit shed; or
(d) is in any way involved in fraudulent activity with respect to the goods deposited in a transit shed,
shall be guilty of an offence and liable to a fine not exceeding one million, five hundred thousand shillings, and the Commissioner may revoke the appointment of the transit shed to which the offence relates.
[Act No. 4 of 1999, s. 3, Act No. 15 of 2003, s. 3, Act No. 4 of 2004, s. 4.]

10.
Accommodation on wharves
(1) A wharf owner shall provide to the satisfaction of the Commissioner—
(a) suitable office accommodation on his wharf or sufferance wharf for the exclusive use of the officer employed at the wharf; and
(b) such shed accommodation for the protection of goods as the Commissioner may in writing declare to be requisite.

(2) Where a wharf owner contravenes any of the provisions of this section then—
(a) the appointment of a place of loading or unloading or a sufferance wharf may be withheld until the required accommodation is provided to the satisfaction of the Commissioner;
(b) any existing appointment may be revoked.


11.
Offences in respect of customs areas, etc.
(1) No person or vehicle shall enter or leave a customs area, port or airport and no goods, whether dutiable or not, shall be brought into or out of any such area, port or airport except through an entrance or exit appointed in accordance with section 9.
(2) No person shall enter any part of a customs area, port or airport when forbidden to do so by an officer, nor remain in such an area or port, or any part thereof, when requested to leave the area or port, or part thereof, by an officer.
(3) A person or vehicle entering or leaving, or goods which are being brought into or out of, a customs area, port or airport may be detained by an officer for the purposes of search or examination.
(4) A person who contravenes this section shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 13 of 1995, s. 3.]

12.
Customs control of goods
(1) The following goods shall be subject to customs control—
(a) all imported goods, including goods imported through the Post Office, from the time of importation until delivery for home use or until exportation, whichever first happens;
(b) all goods under drawback from the time of the claim for drawback until exportation;
(c) all goods subject to export duty from the time when the goods are brought to a port or place for exportation until exportation;
(d) all goods subject to restriction on exportation from the time the goods are brought to a port or place for exportation until exportation;
(e) all goods which are with the permission of the proper officer stored in a customs area pending exportation;
(f) all goods on board an aircraft or vessel whilst within a port or place in Kenya;
(g) all dutiable goods and excisable goods on which duty has not been paid;
(h) all seized goods and all goods under a notice of seizure.

(2) Where any goods are subject to customs control then—
(a) any officer may at any time examine those goods;
(b) except by authority or in accordance with this Act, no person shall interfere in any way with those goods:
Provided that the Commissioner may, permit the assembly of any vehicle, machinery or part processing of any other goods if he is satisfied that the vehicle, machinery or other goods will not lose their identity after the assembly or part processing.

(3) Where goods are subject to customs control, the Commissioner may permit the owner of those goods to abandon them to the customs; and on abandonment the goods may, at the expense of the owner thereof, be destroyed or otherwise disposed of as the Commissioner may direct and the duty thereon shall be remitted or refunded, as the case may be.
(4) A person who contravenes subsection (2)(b) shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both, and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1987, s. 2, Act No. 10 of 1988, s. 3, Act No. 10 of 1990, s. 2, Act No. 9 of 1992, s. 3, Act No. 13 of 1995, s. 4, Act No. 8 of 1997, s. 3.]

13.
Liability for loss, etc., through negligence of officer
Where loss or damage is occasioned to goods subject to customs control or to plant in a factory through the wilful or negligent act of an officer, then an action shall lie against the Commissioner or that officer in respect thereof.
PART III – IMPORTATION
14.
Prohibited and restricted goods
(1) The goods specified in Part A of the Eighth Schedule are prohibited imports and the importation thereof is prohibited.
(2) The goods specified in Part B of the Eighth Schedule are restricted imports and the importation thereof, save in accordance with any conditions regulating their importation, is prohibited.

15.
Power to prohibit, etc., imports
(1) The Minister may, by order published in the Gazette, amend Part A or B of the Eighth Schedule.
(2) The Minister may, by order in the Gazette—
(a) provide that the importation of any goods or class of goods shall be prohibited or shall be prohibited save in accordance with conditions which may be specified;
(b) limit the application of the provisions of the Eighth Schedule in respect of all or any of the goods specified therein,
and thereupon in respect of those goods the provisions of this Act shall apply as if the goods are, or are not, as the case may be, included in the Eighth Schedule.

(3) Any order made under this section may specify goods, or any class of goods, either generally or in any particular manner and may prohibit or restrict the importation thereof either from all places or from any particular country or place.
[Act No. 13 of 1978, Sch.]

16.
Exemption of goods in transit, etc.
(1) Subject to subsection (2), sections 14 and 15 shall not apply to goods imported in transit, or for transhipment, or as stores of an aircraft or vessel, unless the goods come within item 2 of Part A of the Eighth Schedule, or are goods of which the importation in transit, or for transhipment, or as stores for an aircraft or vessel, is expressly prohibited or restricting the importation of goods.
(2) Where, under subsection (1), sections 14 and 15 do not apply to goods imported in transit, or for transhipment, or as stores for an aircraft or vessel, then those goods shall be re-exported within such time and subject to such conditions as may be prescribed; and if the goods are not so re-exported, the owner thereof shall be guilty of an offence and the goods in respect of which an offence has been committed shall be liable to forfeiture.
(3) Subject to subsection (2), where the ownership of goods entered in transit is changed by virtue of a court order or for any other reasons the new owner shall be deemed to have assumed the obligation to have the goods re-exported within the prescribed period.
[Act No. 100 of 1980, s. 2, Act No. 10 of 1986, s. 2, Act No. 10 of 1990, s. 3, Act No. 4 of 1993, s. 4.]
Arrival and Report of Aircraft and Vessels
17.
Procedure on arrival
(1) Save as provided in section 24, the master of every aircraft or vessel arriving in Kenya—
(a) shall not, except where so allowed by the proper officer in any special circumstances, cause or permit the aircraft or vessel to land, touch at or enter any place in Kenya other than a port;
(b) shall, on arriving at a port, come as quickly as the conditions of the port admit up to the proper place of mooring or unloading without touching at any other place;
(c) shall, in proceeding to the proper place, bring to at the station appointed for the boarding of aircraft or vessels;
(d) shall not, after arriving at the proper place, depart therefrom except directly to some other approved place of mooring or unloading, or directly to some other port or place in Kenya, or directly on a voyage to a foreign port or place, in accordance with this Act;
(e) shall not, after departure on a voyage to a foreign port or place, bring to within Kenya except in accordance with this Act, or with the permission of the proper officer, or for some cause which the master explains to the satisfaction of the proper officer.

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

18.
Place of mooring, etc.
The proper officer may, unless other provision is lawfully made direct at which particular part of a port or other place an aircraft or vessel shall moor or discharge its cargo.

19.
Restriction on boarding vessels before proper officer
(1) No person except the port pilot, the health officer or other public officer in the exercise of his duties and duly authorised, shall, save with the permission of the proper officer, board a vessel before the proper officer.
(2) A person who contravenes this section shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings.
[Act No. 13 of 1995, s. 5.]

20.
Report of aircraft and vessels
(1) The master or agent of an aircraft or vessel, whether laden or in ballast, shall, except where otherwise provided in regulations, within twenty-four hours after arrival from a foreign port or place at a port or other place especially allowed by the proper officer, make report of the aircraft or vessel, and of its cargo and stores, and of any package for which there is no bill of lading, to the proper officer on the prescribed form and in the prescribed manner.
(2) The report shall show separately goods which are in transit, goods for transhipment, goods which are to remain on board for other ports in Kenya and goods for re-exportation on the same aircraft or vessel.
(3) In the case of a vessel of less than two hundred and fifty tons register, the report shall, except where otherwise allowed by the proper officer, be made before bulk is broken.
(4) The proper officer may permit the master or agent of an aircraft or vessel to amend the destination, the ownership or status of goods specified in the report where a change in such ownership is intended, or to amend an obvious error in the report or to supply an omission, which in the opinion of the proper officer results from accident or inadvertence, by furnishing an amended or supplementary report in the prescribed manner.
(5) A master or agent of any aircraft or vessel who—
(a) fails to make report in accordance with this section; or
(b) makes a report of which any of the particulars contained therein is false; or
(c) except with the knowledge and consent of the proper officer, causes or permits bulk to be broken contrary to this section; or
(d) except with the knowledge and consent of the proper officer, at any time after arrival causes or permits any goods to be staved, destroyed, or thrown overboard, or any packages to be opened,
shall, unless the contravention is explained to the satisfaction of the proper officer, be guilty of an offence and any goods in respect of which an offence contrary to this subsection has been committed shall be liable to forfeiture.
[Act No. 5 of 1998, s. 3, Act No. 4 of 2004, s. 5.]

21.
Master to answer questions, etc.
(1) The master or agent of an aircraft or vessel—
(a) shall answer fully and immediately all questions relating to the aircraft or vessel, its cargo, stores, baggage, crew and passengers which may be put to him by the proper officer;
(b) shall produce all books and documents in his custody or control relating to the aircraft or vessel, its cargo, stores, baggage, crew and passengers which the proper officer may require;
(c) shall, before any person, unless permitted to do so by the proper officer, disembarks, deliver to the officer who boards the aircraft or vessel on arrival at a port or place, a correct list in the prescribed form containing separately the names of the passengers disembarking and of those remaining on board the aircraft or vessel, and also, if required by the officer, the names of the master and of each officer and member of the crew;
(d) shall, if required, deliver to the proper officer at the time of making report, the clearance, if any, of the aircraft or vessel from the port or place from which the aircraft or vessel has arrived.

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

22.
Goods in transit shed, etc., deemed in aircraft or vessel
(1) Goods which have been unloaded and landed into a transit shed or a customs area shall be deemed to be still in the importing aircraft or vessel until they are delivered from the transit shed or customs area; and so long as they remain therein the owners or agents of the aircraft or vessel shall continue to be responsible therefor as if the goods had not been removed from the aircraft or vessel, and the owners or agents shall be liable for payment of duty thereon if the goods are not subsequently delivered or otherwise accounted for to the satisfaction of the proper officer or for re-shipment or destruction of any such goods which are condemned while still in the dry port or inland transit shed:
Provided that—
(a) where the owners or agents of an aircraft or vessel fail to pay any duties or taxes in respect of any goods under this subsection, the Commissioner may require the transit shed operator to pay such duties or taxes in full; and
(b) where the owners or agents of an aircraft or vessel fail to meet the cost of reshipment or destruction of any goods condemned as aforesaid, the operator of the transit shed shall bear the cost.

(2) The owner or agent of an aircraft or vessel who fails to account for any of the goods deemed to be in the importing aircraft or vessel under subsection (1) to the satisfaction of the proper officer, within such period as may be prescribed or such further period as the proper officer may allow, shall be guilty of an offence.
(3) The owner or agent of an aircraft or a vessel, or, as the case may be, the operator of a dry port or inland transit shed who fails to meet the cost of reshipment or destruction of any condemned goods pursuant to subsection (1) shall be guilty of an offence.
[Act No. 13 of 1995, s. 6, Act No. 9 of 2000, s. 3, Act No. 7 of 2002, s. 3.]

23.
Goods reported to be unloaded
Where goods reported for discharge at a port or place specially allowed by the proper officer are not duly unloaded and deposited in a transit shed or a customs area, then the master or agent of the aircraft or vessel shall, unless he explains to the satisfaction of the proper officer, be guilty of an offence and shall be liable to pay the duty due thereon.
[Act No. 13 of 1995, s. 7.]

24.
Master of wreck, etc., to report
(1) When an aircraft or vessel is lost or wrecked or is compelled to land or bring to within Kenya owing to accident, stress of weather or other unavoidable cause, the master or agent of the aircraft or vessel shall with all reasonable speed make report of the aircraft or vessel and of its cargo and stores to the nearest officer or administrative officer.
(2) Where an aircraft or vessel is found abandoned within Kenya then, unless the master or agent thereof satisfies the Commissioner that all the provisions of this Act in relation to the aircraft or vessel and its cargo and stores have been complied with, the aircraft or vessel and its cargo and stores shall be liable to forfeiture.
(3) A master or agent who contravenes subsection (1) shall be guilty of an offence.

Arrival Overland
25.
Arrival overland
(1) A person, whether or not in charge of a vehicle and whether or not the vehicle may be conveying goods which are dutiable, arriving overland at a frontier of Kenya from a place outside Kenya shall not, except where otherwise permitted by the proper officer, enter Kenya at any place other than at a port or place appointed under section 9 and shall before unloading or disposing of any vehicle or goods—
(a) report his arrival to the officer stationed at the port nearest to the point at which he crossed the frontier;
(b) furnish on the prescribed form such information as may be required concerning any vehicle and goods;
(c) make and subscribe a declaration as to the truth of all particulars contained in the form;
(d) fully and immediately answer all relevant questions put to him by the proper officer;
(e) produce all consignment notes or other relevant documents demanded of him by the proper officer;
(f) save as otherwise provided in this Act make due entry of the vehicle and goods.

(2) No vehicle or goods to which this section applies shall be removed from a customs area until after due entry thereof has been made or until permission for removal has been granted by the proper officer.
(3) The Commissioner may, subject to such conditions as may be specified, exempt any person or class of persons from the provisions of this section.
(4) A person who contravenes this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

Unloading, Entry, Removal, Examination, and Delivery of Cargo
26.
Unloading, etc.
(1) Subject to this Act, save with the written permission of the proper officer and subject to such conditions as he may impose—
(a) no goods shall be unloaded from an aircraft or vessel arriving from a foreign port or place unless the goods have first been duly entered;
(b) no goods shall be unloaded or removed from an aircraft or vessel arriving from a foreign port or place at any time whatsoever except as prescribed by the Commissioner;
(c) no goods shall be unloaded from an aircraft or vessel arriving from a foreign port or place except at an approved place of unloading or at a sufferance wharf:
Provided that—
(i) goods may be unloaded from the aircraft or vessel into another vessel in order to be landed; and in that case the goods shall be taken directly to and landed without delay at an approved place of unloading or at a sufferance wharf;
(ii) with the permission of the proper officer and subject to such conditions as he may impose, goods reported for re-exportation by another aircraft or vessel may be unloaded into another aircraft or vessel pending re-exportation;

(d) all goods which have been unloaded or landed shall be conveyed to a customs area and, if the proper officer so requires, shall be deposited in a transit shed or in a customs warehouse:
Provided
that goods which the proper officer may consider to be unsuited for storage in a transit shed or a customs warehouse shall be deposited in such other place
as the proper officer may direct, and thereupon that other place shall,
for the purpose of deposit, be deemed to be a transit shed;
(e) no goods shall be removed from any part of a customs area or from a transit shed or a customs warehouse unless those goods have first been duly reported and entered and authority for their removal or delivery has been given by the proper officer:
Provided that the proper officer may, if he considers it necessary, direct the agent of an aircraft or vessel from which goods have been landed into a transit shed or customs warehouse to remove those goods to some other place, which other place shall for the purpose be deemed to be a transit shed, selected by the proper officer and, if the agent fails to remove the goods when called upon, the proper officer may have them removed at the risk and expense of the agent;
(f) where any goods are deposited in a transit shed, in a customs warehouse or in any place as directed by the proper officer the customs shall not be liable to any charges arising therefrom;
(g) all goods entered for warehousing shall, after the owner thereof has entered into a bond for their warehousing, be removed by the importer by such routes, in such manner, and within such time, as the proper officer may direct to the warehouse for which they were entered and shall be delivered into the custody of the person in charge of the warehouse.

(2) A person who contravenes this section, or any of the conditions which may have been imposed by, or any of the directions which may have been given by, the proper officer shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1987, s. 3.]

27.
Entry of cargo
(1) Save as otherwise provided in this Act, the whole of the cargo of an aircraft or vessel which is unloaded or to be unloaded shall be entered by the owner within such period after the commencement of discharge as may be prescribed, or such further period as may be allowed by the proper officer, either for—
(a) home use;
(b) warehousing;
(c) transhipment; or
(d) transit.

(2) Where an entry is delivered to the proper officer, the owner shall furnish therewith full particulars supported by documentary evidence of the goods referred to in the entry.
(3) Entries for goods to be unloaded may be delivered to the proper officer for checking before the arrival at the port of discharge of the aircraft or vessel in which the goods are imported; and in that case the Commissioner may permit goods to be entered before the arrival of the aircraft or vessel.
(4) Where goods remain unentered at the expiration of the prescribed period, or of such further period as may have been allowed by the proper officer, then the goods shall, if the proper officer so requires, be removed by, or at the expense of, the agent of the aircraft or vessel in which the goods were imported to a customs warehouse.
(5) Where goods entered for transit or transhipment under subsection (1) are not removed from the customs area within a period of thirty days from the date of entry, such goods shall be removed at the expense of the owner to a customs warehouse:
Provided that where goods are entered before arrival at the port of discharge of the aircraft or vessel under subsection (3), the thirty days’ period shall run from the date the aircraft or vessel commences discharge.
[Act No. 12 of 1990, s. 38, Act No. 4 of 1999, s. 4.]

28.
Surplus stores may be entered
The surplus stores of an aircraft or vessel may, with the permission of the proper officer, be entered for home use or for warehousing.

29.
Provisions relating to mail, personal baggage, etc.
(1) Notwithstanding sections 26 and 27—
(a) mail bags and postal articles in the course of transmission by post may be unloaded and delivered to an officer of the Post Office without entry;
(b) goods which are the bona fide personal baggage of the passengers or members of the crew of an aircraft or vessel may, subject to the provisions of any regulations, be unloaded and delivered to those persons without entry;
(c) the proper officer may permit the unloading and delivery to the owner of bullion, currency notes, coin or perishable goods without entry, subject to security being given by the owner to furnish the necessary entry within forty-eight hours of the time of delivery.

(2) An owner who contravenes the provisions of subsection (1)(c) shall be guilty of an offence.
[Act No. 13 of 1995, s. 8.]

30.
Entry in absence of documents
(1) If the owner of goods is, by reason of the absence of any, or of any sufficient, documents or information concerning them, unable to furnish full particulars of those goods, he shall make and subscribe a declaration on the prescribed form to that effect, and thereupon the proper officer may permit the owner to examine the goods in his presence.
(2) Upon examination having been made the proper officer may, subject to section 31, permit the owner to enter the goods for home use, or for warehousing, if he is satisfied that the description of the goods for tariff and statistical purposes is correctly made in the entry, and also—
(a) in the case of goods liable to duty ad valorem, that the value declared on the entry is approximately correct; and
(b) in the case of goods liable to duty according to weight, quantity, number, measurement or strength, that the weight, quantity, number, measurement or strength declared on the entry is correct.

(3) Where the proper officer has permitted entry to be made under subsection (2), the delivery of the goods may accordingly be made, but the proper officer may, in the case of goods liable to duty ad valorem, retain samples of the goods for such period up to the passing of perfect entry as he may think fit.
(4) Where the owner of any goods referred to in the declaration does not make, or is not permitted to make entry thereof in accordance with this section, then the proper officer shall cause the goods referred to in the declaration to be deposited in a customs warehouse.

31.
Provisions relating to goods liable to ad valorem duty
(1) Where goods entered in accordance with section 30 are goods liable to duty ad valorem, then the entry shall be deemed to be a provisional entry.
(2) Where any such goods are provisionally entered for home use, then the proper officer may require the owner to deposit, in addition to the amount estimated as the duty for the purpose of making the provisional entry, such further sum as the proper officer may think fit; and the estimated duty and further sum shall be held on deposit and shall be forfeited unless the owner within three months, or such further period as may be allowed by the proper officer, of the provisional entry produces to the proper officer satisfactory evidence of the value of the goods and makes perfect entry thereof.
(3) Where the owner makes a perfect entry in accordance with subsection (2), the proper officer shall subtract from the amount held on deposit under that subsection, the full amount of duty payable in respect of the goods and shall refund the difference to the owner:
Provided that where the full amount of duty payable exceeds the amount deposited, the proper officer shall require the owner to pay an additional amount of duty equal to the difference between the amount of duty payable and the amount deposited.
[Act No. 6 of 2001, s. 3.]

32.
Delivery from customs area in special circumstances
(1) The proper officer may, subject to such conditions as he may impose and to the giving of such security as he may think appropriate for the due return thereof or the payment of the duties thereon, permit goods to be removed from a transit shed or customs area without payment of the duty for such purpose, for such period, and in such quantities, as he may think fit.
(2) A person who contravenes any conditions imposed under subsection (1) shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

33.
Re-packing, etc., in customs area, etc.
The proper officer may permit goods to be repacked, skipped, bulked, sorted, lotted or packed on an approved place of unloading, or on a sufferance wharf, or in a transit shed, or in a customs area.

34.
Goods deposited in a customs warehouse may be sold, etc.
(1) Where goods which are deposited in a customs warehouse are not removed within twenty-one days after deposit, then, the proper officer shall give notice that unless such goods are removed within twenty-one days from the date of the notice, they shall be deemed to have been abandoned to customs for sale by public auction.
(2) Subject to subsections (3A) and (4), where goods are deemed to be abandoned under subsection (1), then, such goods, whether restricted or not, shall be sold by public auction after twenty-one days notice of sale has been given:
Provided that any such goods—
(i) which are of a perishable nature or are animals may, with the authority of the Commissioner, be sold without notice, either by public auction or private treaty, at any time after deposit in the customs warehouse;
(ii) which are restricted under any written law in force in Kenya may, with the authority of the Commissioner and subject to subsection (8), be sold only to persons licensed to deal in such goods or in similar goods;
(iii) which are imported by the Government, a diplomatic mission, a state corporation, an aid agency or by the Government or a state corporation of a neighbouring country, shall not be sold except with the prior written approval of the Commissioner;
(iv) any such goods which are prohibited under the provisions of any written law for the time being in force in Kenya shall not be sold and shall be re-exported or destroyed within thirty days of the date the goods are declared prohibited imports.
(3) Every notice given under subsections (1) and (2) shall be advertised in such prominent manner as the Commissioner may see fit.
(3A) Where goods are not sold at a public auction held under subsection (2), they may be sold at a subsequent auction without an additional notice of sale being given.
(4) Notwithstanding the provisions of subsection (2), the Commissioner may, upon application by the owner, made at least seven days before the date of sale, if satisfied that failure to remove the goods was due to circumstances beyond the control of the owner, allow the goods to be withdrawn from the auction sale.
(5) Goods deposited in a customs warehouse shall be subject to such rent and other charges as may be prescribed.
(6) Where goods are sold under this section, the proceeds thereof shall be applied in the order set out below in the discharge of—
(a) the duties, if any;
(b) the expenses of removal and sale;
(c) the rent and charges due to the customs; and
(d) the port charges;
(e) the freight charges, if any.

(7) Where after the proceeds of sale have been applied in accordance with subsection (6) there is a balance, such balance shall be paid into the customs and excise revenue.
(8) Where goods fail to be sold in accordance with this section but are in the opinion of the Commissioner without value, or cannot be sold for any other reason, then they may be destroyed or disposed of in such manner as the Commissioner may direct.
(9) An officer having the custody of goods in a customs warehouse, or place of deposit deemed to be a customs warehouse, may refuse delivery therefrom until he is satisfied that all duties, expenses, rent, freight and other charges due in respect of those goods have been paid
[Act No. 8 of 1991, s. 3, Act No. 6 of 1994, s. 3, Act No. 8 of 1996, s. 2, Act No. 8 of 1997, s. 4, Act No. 4 of 1999, s. 5, Act No. 9 of 2000, s. 4, Act No. 15 of 2003, s. 4, Act No. 4 of 2004, s. 6.]

35.
Goods deemed to be in a customs warehouse
(1) Where under this Act goods are required to be deposited in a customs warehouse, the proper officer may decide that it is undesirable or inconvenient to deposit the goods in a customs warehouse and direct that the goods shall be deposited in some other place; and thereupon the goods shall for all purposes be deemed to have been deposited in a customs warehouse as from the time that they are required to be so deposited.
(2) Where goods are deemed to have been deposited in a customs warehouse then the goods shall, in addition to the rent and other charges to which they are liable under section 34, be chargeable with such expenses incurred in the securing, guarding and removing of them as the proper officer may consider reasonable; and neither the Commissioner nor an officer shall be liable for the loss of or damage to the goods which may be occasioned by reason of their being so deposited and dealt with.

PART IV – WAREHOUSING OF GOODS
36.
Dutiable goods may be warehoused
(1) Subject to any regulations, goods liable to duty may on first importation be warehoused without payment of duty in a Government warehouse or a bonded warehouse licensed by the Commissioner.
(2) On, or as soon as practicable after, the landing of goods to be warehoused, the proper officer shall take a particular account of the goods and shall enter the account in a book; and the account shall, subject to sections 41 and 47, be that upon which the duties in respect of the goods shall be ascertained and paid.

37.
Procedure on warehousing
(1) Where goods entered to be warehoused are delivered into the custody of the person in charge of a warehouse, the proper officer shall take a particular account of the goods, whether or not an account thereof has been previously taken.
(2) The proper officer shall, in taking an account, enter in the book for that purpose the name of the aircraft or vessel or the registered number of the vehicle, as the case may be, in which the goods were imported, or, in the case of postal articles, the parcel post reference, the name of the owner of the goods, the number of packages, the mark and number of each package, and the value and particulars of the goods.
(3) After the account has been taken and the goods deposited in the warehouse in accordance with the direction of the proper officer, the officer shall certify at the foot of the account that the entry and warehousing of the goods is complete; and the goods shall from that time be considered goods duly warehoused.
(4) Subject to section 39, all goods entered to be warehoused shall be removed to the warehouse for which they were entered and deposited therein within seven days from the date of release, or within such further period as the Commissioner may allow for bonded warehouses situated away from the port of importation:
Provided that where goods are permitted to be repacked, skipped, bulked, sorted, lotted or packed in accordance with section 33, those goods shall be deposited in then packages in which they were contained when the account thereof was taken.
(5) A person who contravenes subsection (4) shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 4 of 1999, s. 6, Act No. 4 of 2004, s. 7.]

38.
Removal to warehouse of goods entered therefore
(1) Where goods entered to be warehoused are not duly warehoused by the owner, the proper officer may cause them to be removed to the warehouse for which they were entered.
(2) Where goods are so removed to a bonded warehouse the warehouse keeper shall pay the cost of the removal of the goods and shall have a lien on the goods for the cost.

39.
Entry of warehoused goods
(1) Goods which have been warehoused may be entered either for—
(a) home use;
(b) exportation;
(c) removal to another warehouse;
(d) use as stores for aircraft or vessels; or
(e) re-warehousing.

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

40.
Operations in a warehouse
(1) Where goods are warehoused, the commissioner may, subject to such conditions as he may impose—
(a) permit the goods to be repacked, skipped, bulked, sorted, lotted or parked therein;
(b) permit samples of the goods to be taken by the owner;
(c) permit the name of the owner of the goods in the account taken under section 36 to be changed if application therefore is made in the prescribed form and signed by both the owner and the intended owner;
(d) permit the assembly or manufacture in the warehouse of any article consisting wholly or partly of those goods; and for that purpose the Commissioner may permit the receipt in a warehouse of duty free or locally produced articles required as components of the article to be so assembled or manufactured therein:
Provided that—
(i) where the finished article is entered for home use, duty shall be charged on the goods forming part thereof according to the first account taken upon the warehousing of the goods except in the case of imported crude petroleum or partly refined petroleum oils which are warehoused in a refinery, in which case duty shall be charged on the goods produced from crude petroleum or partly refined petroleum oils delivered from the refinery for home use and shall be the same as that which would be payable on the importation of similar goods; and
(ii) in respect of blended lubricating oils, duty shall be charged on the resultant volume of the blend at the time of entry for home use and shall be the same as that which would be payable on the importation of similar goods.

(2) A person who contravenes any conditions which may be imposed by the Commissioner under this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 14 of 1982, s. 3, Act No. 9 of 1992, s. 4, Act No. 4 of 1993, s. 5.]

41.
Regauging in revaluation
The proper officer may, either on the direction of the Commissioner or on the application and at the expense of the owner, regauge, remeasure, reweigh, examine or take stock of any warehoused goods, and in either case the duty on the goods shall be payable according to the result, unless the proper officer considers that any loss or deterioration is excessive or has been wilfully or negligently caused, in either of which events the duty shall, subject to such reduction, if any, as the Commissioner may allow, be payable according to the original account.

42.
Delivery from warehouse in special circumstances
(1) The Commissioner may, subject to such conditions as he may impose and to the giving of such security as he may think appropriate for the due return thereof or the payment of duties thereon, permit goods to be removed from a warehouse without payment of duty for such purpose, for such period, and in such quantities, as he may think fit.
(2) A person who contravenes any conditions imposed under subsection (1) shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 13 of 1979, s. 2, Act No. 9 of 1992, s. 5.]

43.
Removal to another warehouse or bonded factory
(1) Where warehoused goods are to be removed to another warehouse or a bonded factory, then the proper officer—
(a) shall require owner of the goods to deliver an entry thereof in such form and manner as the proper officer may direct;
(b) shall require the owner to give security in such amount, not being less than the duty chargeable on the goods, as the proper officer may think fit for the due arrival and re-warehousing of the goods within such time as the proper officer may consider appropriate; and
(c) shall transmit to the proper officer of the place where the goods are to be re-warehoused an account containing the particulars of the goods.

(2) Security given under this section shall not be discharged unless—
(a) the conditions attaching thereto have been satisfied; or
(b) the full duty payable on the goods has been paid in accordance with this Act; or
(c) the goods are otherwise accounted for to the satisfaction of the proper officer, and any duties due in respect of any deficiency in the goods not so accounted for have been paid.

(3) on the arrival of the goods at the other warehouse or bonded factory, a particular account of them shall be taken in accordance with section 37 or section 58F, as the case may be.
[Act No. 10 of 1980, s. 2, Act No. 10 of 1990, s. 4.]

44.
Warehoused goods may be delivered as stores
(1) Where warehoused goods have been entered for use as stores for an aircraft or vessel, they may be delivered for that purpose to a vessel or aircraft proceeding to a foreign port or place:
Provided that warehoused goods shall not be entered for use as stores for a vessel of less than ten tons register or be delivered for that purpose.
(2) Where warehoused goods are delivered for the purpose of being used as stores for an aircraft or vessel, they shall forthwith be put on board the aircraft or vessel for which they are entered.
(3) Where warehoused goods are dealt with contrary to this section, the owner of the goods shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

45.
Abandonment, etc., of warehoused goods
(1) The Commissioner may subject to such conditions as he may impose—
(a) permit the owner of warehoused goods to abandon the goods to the customs;
(b) permit the owner of warehoused goods which, in the opinion of the proper officer, are worthless or have become damaged, or are surplus, by reason of any operations in connexion therewith carried out under section 40, to destroy the goods,
and in either case the duty on the goods shall be remitted.

(2) Where under subsection (1) warehoused goods are—
(a) abandoned to the customs, then the goods shall be disposed of in the manner provided in section 34:
Provided that, where the goods are destroyed or disposed of in some manner other than sale, the destruction or disposal shall be at the expense of the owner;
(b) permitted to be destroyed, and the goods were warehoused in a Government warehouse, then the owner of the goods shall nevertheless be liable to pay to the proper officer the rent and other charges due on the goods.


46.
Period of warehousing of goods
(1) All warehoused goods which have not been removed from a warehouse in accordance with this Act within six months of the date on which they were entered shall be entered for re-warehousing for a further period of six months or such longer period as the Commissioner may allow; but those goods shall not be re-warehoused more than once:
Provided that in the case of wines and spirits warehoused by licensed excise manufacturers and duty free shops or locally assembled motor vehicles warehoused by approved motor vehicle assemblers, the Commissioner may, in addition to the period of re-warehousing permitted in this subsection allow such further period of re-warehousing as he may deem appropriate.
(2) Where goods required to be re-warehoused under subsection (1) are not so re-warehoused, then duty shall become due and payable and shall be paid forthwith in accordance with the account taken under sections 36 and 37.
(3) Where duty becomes due and payable under subsection (2) and the owner fails to pay the duty within twenty-one days or such further period as the Commissioner may allow, from the date the duty becomes due and payable, the goods shall be sold by public auction after twenty-one days’ notice of such sale has been given by the officer in such prominent public manner as the Commissioner may see fit:
Provided that any such goods which are of a perishable nature may, with the authority of the Commissioner, be sold by the proper officer without notice, either by public auction or private treaty, at any time after the expiry of the period of re-warehousing.
(4) Where any goods are sold under this section then the proceed thereof shall be applied in the order set out below in the discharge of—
(a) the duties, if any;
(b) the expenses of removal and sale;
(c) any rent and charges due to the Customs; and
(d) any rent and charges due to the warehouse keeper.

(5) Where any balance is realised after the application of the proceeds in accordance with subsection (4), it shall be paid into the customs and excise revenue.
[Act No. 8 of 1983, s. 2, Act No. 13 of 1984, s. 2, Act No. 10 of 1986, s. 4, Act No. 10 of 1987, s. 4, Act No. 10 of 1990, s. 5, Act No. 4 of 1993, s. 6, Act No. 8 of 1996, s. 2A, Act No. 8 of 1997, s. 4A, Act No. 5 of 1998, s. 4, Act No. 4 of 1999, s. 7, Act No. 9 of 2000, s. 5.]

47.
Examination of warehoused goods on delivery
(1) Where warehoused goods are delivered for home use, for exportation, for removal to another warehouse, or for use as stores for aircraft or vessels, or are to be re-warehoused under section 46, then the proper officer may examine and take stock of the goods.
(2) Where there is a deficiency between the quantity shown by the warehouse account and that ascertained on examination, then, if the proper officer considers—
(a) that the deficiency is not excessive or that it was not wilfully or negligently caused, he may allow the deficiency and direct that the duties on the goods shall be payable, or that the re-warehousing entry shall be made, as the case may be, on the result of the examination;
(b) that the deficiency is excessive or that it was wilfully or negligently caused, he shall require the duties on the goods to be paid by the owner according to the warehouse account:
Provided that where the goods are to be re-warehoused, the duty on the deficiency shall be forthwith paid by the owner of the goods and the re-warehousing entry shall be made according to the result of the examination.
[Act No. 8 of 1983, s. 6.]


48.
Access to warehouse
(1) The proper officer shall at all times have the right of access to any part of a warehouse and may examine any goods therein; and for the purpose of obtaining access the proper officer may break open the warehouse or any part thereof, or any adjacent premises.
(2) No person other than the proper officer or, in the case of a bonded warehouse, the warehouse keeper or a duly authorized employee, shall open a warehouse or gain access to goods therein save with the approval of the proper officer; and a person who contravenes this subsection shall be guilty of an offence.
(3) No person shall enter a warehouse or part thereof contrary to the orders of the proper officer, or shall refuse to leave a warehouse or part thereof when directed to do so by the proper officer; and a person who contravenes this subsection shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings.
[Act No. 13 of 1995, s. 9.]

49.
Removal of goods after entry for home use, export or sale
(1) Any goods deposited in a warehouse or bonded factory which are entered for home use or for export or sold in accordance with this Act shall—
(a) in the case of goods entered for home use or sold in accordance with this Act, be removed from such warehouse or bonded factory within fourteen days of such entry or sale, as the case may be; and
(b) in the case of goods entered for export, be removed from the warehouse or bonded factory and exported within thirty days or within such longer period, not exceeding thirty days, as the Commissioner may, in any particular case, allow.

(2) Any goods which remain in a warehouse or bonded factory in contravention of this section shall be forfeited and sold or resold in accordance with the provisions of section 34.
[Act No. 4 of 1993, s. 6, Act No. 5 of 1998, s. 5.]

50.
Penalty for unlawfully taking, etc., warehoused goods
A person who—
(a) takes, or causes or permits to be taken, goods from a warehouse otherwise than in accordance with this Act; or
(b) wilfully destroys or damages warehoused goods otherwise than in circumstances specifically provided for in this Act,
shall be guilty of an offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding two hundred thousand shillings or to both.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 10.]

51.
Commissioner may license warehouses
(1) The Commissioner may on application license a premises, room or enclosed area as a bonded warehouse for the deposit of goods liable to duty; and the Commissioner may refuse to issue a licence without assigning any reason, or may by notice in writing suspend, revoke or refuse to renew a licence on the grounds stated in the notice.
(1A) An application under subsection (1) shall be in such form and comply with such requirements as the Commissioner may, by notice in the Gazette, prescribe.
(2) The Commissioner may license a premises, room or enclosed area as either—
(a) a general bonded warehouse for the warehousing of goods generally; or
(b) a private bonded warehouse for the warehousing only of goods which are the property of the warehouse keeper.

(3) A licence shall be in the prescribed form and shall be subject to the payment of the prescribed fee.
(3A) Where the premises, room or enclosed area licensed as a bonded warehouse under this section is owned by a company registered under the Companies Act (Cap. 486), it shall be a condition of the licence that the company shall not change its directors except with the prior written approval of the Commissioner.
(4) The Commissioner may require the person applying for a licence to furnish such security as the Commissioner may think appropriate as a condition to the grant of the licence and the Commissioner may at any time require a warehouse keeper to furnish new security in a different amount or on different terms.
(4A) A licence issued under this section shall be subject to such conditions as the Commissioner may, by notice in the Gazette, prescribe.
(5) The Commissioner may at any time require a bonded warehouse keeper to make such alterations or additions to his bonded warehouse as the Commissioner may consider necessary to ensure the proper security or warehousing of goods.
(6) No building shall be used as a bonded warehouse unless there is in force in relation thereto a valid licence.
(7) A warehouse keeper who uses or permits to be used his bonded warehouse in contravention of any of the terms of his licence shall be guilty of an offence.
(8) An owner or occupier of a premises, room or enclosed area who uses or permits to be used the premises, room or enclosed area as a bonded warehouse without being the holder of a valid licence in respect thereof shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings and, in addition thereto, to a fine not exceeding five thousand shillings for any day or part of a day during which the premises, room or enclosed area was so used.
[Act No. 14 of 1982, s. 4, Act No. 8 of 1991, s. 4, Act No. 9 of 1992, s. 6, Act No. 13 of 1995, s. 11, Act No. 4 of 1999, s. 8, Act No. 15 of 2003, s. 5, Act No. 4 of 2004, s. 8.]

51A.
Commissioner may licence duty free shops
(1) The Commissioner may, on application, licence a room or premises situated in a port as a duty free shop, for the deposit of dutiable goods on which duty has not been paid and which have been entered for use as ship stores or for sale to passengers departing to places outside Kenya.
(2) An application under subsection (1) shall be in such form and comply with such requirements as the Commissioner may, by notice in the Gazette, prescribe.
(3) The Commissioner may refuse to issue a licence under this section without assigning any reason, or may, by notice in writing, revoke or refuse to renew a licence on such grounds as may be specified in the notice.
(4) Subject to this section, the provisions of this Act relating to bonded warehouses shall, mutatis mutandis, apply to duty free shops.
[Act No. 15 of 2003, s. 6.]

52.
Procedure on revocation or expiry of licence
(1) Where the Commissioner revokes a licence under section 51, he shall cause to be served on the warehouse keeper notice of revocation by leaving the notice with the person in charge of the bonded warehouse; and thereupon that service shall be deemed to be notice of revocation to the owners of all goods warehoused therein.
(2) Where a warehouse keeper proposes not to renew his licence in relation to a bonded warehouse, then he shall cause notice of his intention to be given to the owners of all goods warehoused therein.
(3) Where the licence in relation to a bonded warehouse has been revoked or has expired, then within such time as the Commissioner may direct, all goods warehoused therein shall be entered and delivered for home use, for exportation, for removal to another warehouse, or for use as stores for aircraft or vessels.
(4) Where goods have not been entered and delivered in accordance with subsection (3), the proper officer may cause the goods to be taken to a customs warehouse and thereupon the goods shall be dealt with in accordance with section 34.

53.
Warehouse keeper to provide facilities
(1) A warehouse keeper shall—
(a) provide office accommodation and just weights, scales, measures and other facilities for examining and taking account of goods and for securing them as the proper officer may reasonably require;
(b) keep a record of all goods warehoused therein and keep that record at all times available for examination by the proper officer;
(c) stack and arrange the goods in the bonded warehouse so as to permit reasonable access to and examination of every package at all times;
(d) provide all necessary labour and materials for the storing, examining, packing, marking, coopering, weighing and taking stock of the warehoused goods whenever the proper officer so requires;
(e) maintain such records and accounts relating to the operations of a refinery in such form and manner as the proper officer shall require, and shall keep the records and accounts at all times available for examination by the proper officer.

(2) Where a warehouse keeper contravenes any of the provisions of this section the Commissioner may direct that no other goods shall be warehoused by that warehouse keeper until he has, in the opinion of the Commissioner, complied with those provisions.
(3) A warehouse keeper who contravenes any of the provisions of this section or of a direction given by the Commissioner under this section shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings.
[Act No. 13 of 1995, s. 12.]

54.
Stowage and storage of goods in bonded warehouse
(1) The proper officer may direct in what parts or divisions of a bonded warehouse and in what parts or divisions of a bonded warehouse and in what manner goods shall be deposited therein.
(2) Subject to section 40, where goods have been warehoused in a bonded warehouse, then except with the approval of the proper officer, the goods shall not be moved or interfered with in any way, nor shall any alteration be made in the marks or numbers of any package.
(3) A warehouse keeper who contravenes or who causes or permits a contravention of this section shall be guilty of an offence and shall be liable to a fine not exceeding twenty thousand shillings and any goods in respect of which an offence under subsection (2) has been committed shall be liable to forfeiture.
[Act No. 13 of 1995, s. 13.]

55.
Removal of goods from private to general warehouse
(1) Where the warehouse keeper of a private bonded warehouse contravenes any of the provisions of this Act the proper officer may require him within such time as the proper officer may direct, to remove all or any of the goods warehoused in the private bonded warehouse to a general bonded warehouse or to enter and deliver them for home use, or for exportation, or for use as stores for aircraft or vessels.
(2) Where a warehouse keeper contravenes a requirement given under subsection (1) the proper officer may cause the goods to be taken to a customs warehouse at the expense of the warehouse keeper and thereupon the goods shall be dealt with in accordance with section 34.

56.
Warehouse keeper to produce goods deposited
(1) A warehouse keeper shall, on request, produce to the proper officer all goods deposited in his bonded warehouse.
(2) A warehouse keeper who contravenes this section shall, in the absence of satisfactory explanation to the proper officer, be guilty of an offence and liable to a fine not exceeding ten thousand shillings in respect of each package not so produced and, in addition, the warehouse keeper shall forthwith pay the duties in respect of each such package.
Provisions Relating to Government Warehouses
57.
Goods in Government warehouse liable to rent, etc.
Where goods are deposited in a Government warehouse, they shall be subject to such rent and other charges as may be prescribed or as may be provided for in this Act; and, if the rent and other charges are not paid to the proper officer when lawfully demanded, the goods in respect of which the rent and other charges are due may be sold and the proceeds thereof applied in accordance with section 34.

58.
Removal, etc., of goods in Government warehouse
Where goods are deposited in a Government warehouse the proper officer may—
(a) remove, at the expense of the customs, the goods from that warehouse to another Government warehouse;
(b) perform, in relation to the goods and at the expense of the owner thereof, all acts which he may consider reasonably necessary for the proper custody and preservation of the goods:
Provided that the proper officer shall not, save where he considers immediate action necessary, perform any such act until twenty-four hours after the owner of the goods has been notified that the act is necessary;
(c) by notice inform the owners of the goods that it is proposed to close the warehouse at the end of a period, not being less than three months from the date of the notice, which may be specified in the notice; and in that case regulations shall be made providing for the manner in which goods shall be dealt with on the warehouse being closed.

PART IVA – A—PROVISIONS RELATING TO MANUFACTURE UNDER BOND
58A.
Licensing of bonded factories
(1) The Commissioner may, on application and with the prior approval of the Minister and subject to such conditions as the Commissioner may impose, issue a licence in the prescribed form to any person to manufacture goods under bond in specified premises; and the Commissioner may refuse to issue a licence or, by notice in writing, suspend, revoke or refuse to renew a licence on the grounds stated in the notice.
(2) Applications for a licence under this section shall be in the prescribed form and shall be accompanied by the prescribed fee.
(3) A licence issued under subsection (1) shall be subject to the payment of the prescribed annual fee and shall expire on the 31st December in each year.
(4) The Commissioner may require the person applying for a licence to furnish such security as the Commissioner may think appropriate as a condition to the grant of the licence and the Commissioner may, at any time, require a licensee to furnish a new security in a different amount or on different terms.
(5) No premises shall be used for manufacturing under bond unless there is in relation thereto a valid licence.
(6) Any person who uses or permits premises to be used for manufacturing under bond without a licence, or a licensee who uses or permits his bonded factory to be used in contravention of the terms of his licence shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both; and any goods in respect to which an offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1988, s. 5, Act No. 4 of 1993, s. 8, Act No. 13 of 1995, s. 16.]

58B.
Entry of premises as bonded factories
(1) A licensee shall, before commencing to manufacture under bond, make entry in the prescribed form and in the prescribed manner of each building, room, place and item of plant in his factory which he proposes to use in the manufacture or storage of raw materials or manufactured goods; and, in each entry, he shall specify the purpose for which each building, room, place or item of plant is to be used.
(2) A licensee shall not, in the course of manufacturing goods under bond—
(a) make use of a building, room, place or item of plant in relation to which entry is required under this section unless there is, in respect thereof, a valid entry;
(b) effect, without prior permission of the Commissioner, an alteration in shape, position or capacity to a building, room, place or plant.
[Act No. 10 of 1988, s. 5.]


58C.
Revocation of licence, etc.
(1) Where the Commissioner suspends, revokes or refuse to renew a licence under section 58A(1), he shall serve or cause to be served, in writing, on the licensee a notice to that effect.
(2) The notice referred to in subsection (1) may be served by delivering it to the licensee or by leaving it at the bonded factory or with the person in charge of the bonded factory and thereafter the notice shall be deemed to have been served.
[Act No. 10 of 1988, s. 5.]

58D.
Entry of plant, machinery, etc., for exportation or for home
use
(1) Where a manufacturer ceases to be licensed under section 58A, he shall enter and deliver for exportation or for removal to another bonded factory or for home use all the plant, machinery and equipment, raw materials or manufactured goods in the bonded factory within such time as the Commissioner may specify.
(2) Where on the expiry of the time specified by the Commissioner under the subsection (1), the plant, machinery and equipment, raw materials or manufactured goods are not entered and delivered in accordance to the subsection (1), then the plant, machinery and equipment, raw materials or manufactured goods shall be liable to forfeiture.
[Act No. 10 of 1988, s. 5.]

58E.
Manufacturer to provide facilities
A manufacturer shall—
(a) provide office accommodation and just weights, scales, measures and other facilities for examining and taking account of goods and for securing them as the proper officer may reasonably require;
(b) keep a record of all types of plant, machinery and equipment, raw materials and goods manufactured therein and keep that record at all times available for examination by the proper officer;
(c) provide all necessary labour and materials for the storing, examining, packing, marking, coopering, weighing and taking stock of the goods therein whenever the proper officer so requires.
(2) Where a manufacturer contravenes any of the provisions of this section, the Commissioner may direct that the manufacturer shall cease operations until he has complied with those provisions to the satisfaction of the Commissioner.
(3) A manufacturer who contravenes any of the provisions of this section or of a direction given by the Commissioner under this section shall be guilty of an offence.
[Act No. 10 of 1988, s. 5.]

58F.
Receipt and storage of raw materials and manufactured goods
(1) All raw materials, whether imported or obtained locally, received in the bonded factory shall be stored in a room of which an entry for the purpose has been made in accordance with section 58B(1) and which shall be known as the raw materials stock room.
(2) All manufactured goods shall, after the process of manufacture, be forthwith stored in a room of which entry for the purpose has been made in accordance with section 58B(1) and which shall be known as the manufactured goods stock room.
(3) All the waste from the manufacturing process and all manufactured goods which are not of the required standards or specifications shall, after the process of manufacture, be forthwith stored in a room of which entry has been made for the purpose in accordance with section 58B(1) and which shall be known as the waste and rejects stock room.
(4) A stock room shall not be used for any purpose other than the purpose for which entry has been made.
(5) The raw materials and manufactured goods shall be stored in such a way as to facilitate the easy taking of their full account.
(6) A licensee who contravenes this section shall be guilty of an offence and the raw materials or manufactured goods in respect of which an offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1988, s. 5.]

58G.
Provisions relating to stock registers
(1) A licensee shall keep in the prescribed manner—
(a) a raw materials stock register and shall, each day, enter therein the particulars of all receipts and deliveries of all raw materials; and
(b) a manufactured goods register and shall, each day, enter therein the particulars of all receipts and deliveries of all manufactured goods; and
(c) a waste and rejects stock register and shall, each day, enter therein the particulars of all receipts and deliveries of all waste and rejects.

(2) The stock registers shall be available for inspection by the proper officer at all times and the proper officer may take copies of any entry therein.
(3) A licensee who contravenes the provisions of this section shall be guilty of an offence.
[Act No. 10 of 1998, s. 5.]

58H.
Manner of dealing with deficiencies and excesses in stock
rooms
(1) Whereupon the proper officer taking stock of the raw materials or manufactured goods in a bonded factory he establishes excesses or deficiencies which the licensee fails to account for to the satisfaction of the proper officer, the licensee shall be guilty of an offence and liable to—
(a) a fine not exceeding one hundred thousand shillings or twice the ex-factory value (or c.i.f. value in respect of imports) of the deficiency or excess, whichever is the higher, or to imprisonment for a term not exceeding three years or to both; and the goods in respect of which an offence has been committed shall be liable to forfeiture; and
(b) pay the full duties on the excesses or deficiencies.

(2) Any licensee who, without the permission of the Commissioner, disposes of or allows to be disposed of raw materials or manufactured goods from a bonded factory, within the Kenyan local market, whether on payment or not, or any person who acquires, keeps, conceals or has in his possession such raw materials or manufactured goods from a bonded factory, shall be guilty of an offence and liable to a fine not exceeding two hundred thousand shillings or three times the ex-factory value of the raw materials or manufactured goods, whichever is the higher, or to imprisonment for a term not exceeding three years or to both; and the goods in respect of which the offence has been committed shall be deemed to be prohibited goods as from the date of such disposal or as acquisition.
[Act No. 10 of 1988, s. 5.]

58I.
Importation of equipment, machinery, raw materials, etc.
(1) All items of plant, machinery, spares and imported raw materials for use in the manufacture of goods under bond, shall be duly entered and delivered to the bonded factory within such time and subject to such conditions as the Commissioner may prescribe; and if the goods described in this section are not so delivered, then, as from the date of importation, the plant, machinery, spares and raw materials shall be deemed to be prohibited goods, unless a satisfactory explanation is given to the proper officer to account for any delay.
(2) All manufactured goods shall be duly exported or entered for home use within such time and subject to such conditions as the Commissioner may impose.
(3) A manufacturer who contravenes this section shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or twice the ex-factory value (or c.i.f. value in respect of imports); whichever is the higher, or to imprisonment for a term not exceeding three years or to both; and the goods thereof shall be liable to forfeiture and, in addition, the Commissioner may revoke the licence issued under section 58A.
[Act No. 10 of 1988, s. 5, Act No. 4 of 1993, s. 9.]

58J.
Provisions relating to goods in a bonded factory
(1) Where goods are warehoused in a bonded factory the Commissioner may, subject to such conditions as he may impose, permit the name of the owner of the goods in the account taken under section 58G to be changed if application therefore is made in the prescribed form and signed by both the owner and the intended owner.
(2) Where goods warehoused in a bonded factory are to be removed to another bonded factory, then the proper officer shall—
(a) require the owner of the goods to deliver an entry thereof in such form and manner as the proper officer may direct;
(b) require the owner to give security in such amount, not being less than the duty chargeable on the goods, as the proper officer may think fit for the due arrival and re-warehousing of the goods within such time as the proper officer may consider appropriate; and
(c) transmit to the proper officer of the bonded factory where the goods are to be re-warehoused an account containing the particulars of the goods.

(3) Security given under subsection (2) shall not be discharged unless—
(a) the conditions attaching thereto have been satisfied;
(b) the full duty payable on the goods has been paid in accordance with this Act; or
(c) the goods are otherwise accounted for to the satisfaction of the proper officer, and any duties due in respect of any deficiency in the goods not so accounted for have been paid;

(4) On arrival of the goods at the other bonded factory, a particular account of the goods shall be taken in accordance with section 58G.
[Act No. 10 of 1990, s. 6.]

58K.
Delivery from bonded factory in special circumstances
(1) The Commissioner may, subject to such conditions as he may impose and to the giving of such security as he may think appropriate for the due return thereof, permit goods to be removed from a bonded factory without payment of duty for such purpose, for such period and in such quantities as he may think fit.
(2) A person who contravenes any conditions imposed under subsection (1) shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or twice the ex-factory selling price (or c.i.f. value in respect of imports), whichever is the higher, or to imprisonment for a term not exceeding three years or to both and the goods thereof shall be liable to forfeiture.
[Act No. 8 of 1991, s. 5, Act No. 9 of 1992, s. 7, Act No. 13 of 1995, s. 18.]

58L.
Goods from bonded factory may be entered for home use
The Commissioner may, subject to such conditions as he may impose and on payment of the duties due, permit goods manufactured in a bonded factory, including waste from the manufacturing process, to be entered for home use.
[Act No. 4 of 1993, s. 10.]

PART V – EXPORTATION
59.
Prohibited and restricted exports
(1) The goods specified in Part C of the Eighth Schedule are prohibited goods and the exportation thereof is prohibited.
(2) The goods specified in Part D of the Eighth Schedule are restricted goods and the exportation thereof, save in accordance with any conditions regulating their exportation, is prohibited.

60.
Power to prohibit, etc., exports
(1) The Minister may, by order in the Gazette, amend Part C or D of the Eighth Schedule.
(2) The Minister may, by order in the Gazette—
(a) provide that the exportation of any goods or class of goods shall be prohibited or shall be prohibited save in accordance with conditions which may be specified;
(b) limit the application of the provisions of the Eighth Schedule in respect of all or any of the goods specified therein,
and thereupon in respect of those goods the provisions of this Act shall apply as if the goods are, or are not, as the case may be, included in the Eighth Schedule.

(3) Any order made under this section may specify goods, or any class of goods, either generally or in any particular manner, and may prohibit or restrict the exportation thereof either to all places, or to any particular country or place.
[Act No. 13 of 1978, Sch.]

61.
Exemption of goods in transit, etc.
(1) Subject to subsection (2), sections 59 and 60 shall not apply to goods in transit, or for transhipment, or exported as stores of an aircraft or vessel, unless the goods are goods of which the exportation as stores for an aircraft or vessel is expressly prohibited or restricted in an order made under this Act prohibiting or restricting the exportation of goods.
(2) Where under subsection (1), sections 59 and 60 do not apply to goods in transit, or for transhipment, or exported as stores for an aircraft or vessel, then the goods shall be duly exported within such time and subject to such conditions as may be prescribed; and if the goods are not so exported, then, as from the last date on which they should have been so exported, they shall be deemed to be prohibited goods or restricted goods, as the case may be.
[Act No. 10 of 1980, s. 2, Act No. 10 of 1986, s. 5.]

Entry Outwards and Loading of Aircraft and Vessels
62.
Entry outwards of aircraft or vessel
(1) The master or agent of an aircraft or vessel in which goods are to be exported shall make entry outwards of the aircraft or vessel to the proper officer on the prescribed form and in the prescribed manner.
(2) Save with the permission of the proper officer—
(a) no such entry outwards of an aircraft or vessel shall be made before the whole of the cargo reported in the aircraft or vessel for discharge has been discharged;
(b) no goods shall be loaded on the aircraft or vessel before the entry outwards is made.

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

63.
Entry of cargo for export
(1) Save as otherwise provided in this Act, the whole of the cargo to be loaded for export on an aircraft or vessel shall be entered by the owner of the cargo in the manner prescribed.
(2) Where an owner delivers an entry under this section he shall furnish therewith to the proper officer full particulars, supported by documentary evidence, of the goods referred to in the entry.
(3) A person who contravenes this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

64.
Loading, etc.
(1) Subject to this Act, save with the written permission of the proper officer and subject to such conditions as he may impose—
(a) no goods shall be put on board an aircraft or vessel departing to a foreign port or place unless the goods have first been duly entered;
(b) no goods shall be put on board an aircraft or vessel departing to a foreign port or place at any time whatsoever except as prescribed by the Commissioner;
(c) no goods shall be put on board an aircraft or vessel departing to a foreign port or place except from an approved place of loading or from a sufferance wharf:
Provided that—
(i) goods may be put on board an aircraft or vessel from another vessel on to which they had been put on board in order to be loaded on to the aircraft or vessel;
(ii) with the permission of the proper officer and subject to such conditions as he may impose, goods reported for transhipment may be loaded on to an aircraft or vessel from another aircraft or vessel;

(d) no goods shall be put on board an aircraft or vessel departing to a foreign port or place before entry outwards of the aircraft or vessel;
(e) no goods shall be put on board an aircraft or vessel to be loaded on to another aircraft or vessel departing to a foreign port or place if the goods may not, under the provisions of this subsection, be directly put on board that other aircraft or vessel;
(f) all goods put on board an aircraft or vessel to be loaded on to another aircraft or vessel departing to a foreign port shall be so loaded within the limits of the port.

(2) A person who contravenes this section, or any of the conditions which may have been imposed by the proper officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1988, s. 6, Act No. 13 of 1995, s. 19.]

65.
Provisions relating to personal baggage, etc.
(1) Notwithstanding section 64, the proper officer may, subject to any regulations, permit—
(a) goods which are the bona fide personal baggage of the passengers, or members of the crew, of an aircraft or vessel to be put on board the aircraft or vessel and exported without entry;
(b) goods intended for sale or delivery to passengers, or members of the crew, of an aircraft or vessel to be put on board the aircraft or vessel, subject to such conditions as he may impose, without entry;
(c) mail bags and postal articles in the course of transmission by post to be put on board and exported without entry;
(d) goods to be put on board an aircraft or vessel departing to a foreign port or place without entry subject to an application being made by the owner on the prescribed form and in the prescribed manner and to an undertaking being given by the owner of the goods to furnish the necessary entry within ninety-six hours, or such further time as the proper officer may specify, of the departure of the aircraft or vessel and to such security, if any, being given by the owner for the due payment of any export duties as the proper officer may consider appropriate.

(2) A person who—
(a) contravenes any conditions imposed under subsection (1)(b); or
(b) contravenes any undertaking given under subsection (1)(d),
shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both; and the goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1988, s. 7, Act No. 13 of 1995, s. 20.]

66.
Goods for export not to be discharged in Kenya
(1) No goods which have been put on board an aircraft or vessel for export, or for use as stores, or as passengers’ baggage, shall, save with the written permission of the proper officer and in accordance with such conditions as he may impose, be discharged at any place within Kenya.
(2) A person who contravenes this section, or any conditions imposed by the proper officer, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding one hundred thousand shillings or to both; and the goods in respect of which the offences has been committed shall be liable to forfeiture.
[Act No. 10 of 1988, s. 8.]

67.
Provisions relating to export of certain goods
(1) Before—
(a) warehoused goods; or
(b) goods on which drawback may be claimed; or
(c) dutiable goods intended for transhipment; or
(d) restricted goods; or
may be entered for exportation, for transhipment, or for use as stores for aircraft or vessels, the proper officer may require the owner of the goods to give security, in such amount and subject to such conditions as he may think fit, that the goods shall be duly put on board the aircraft or vessel for which they are entered and either duly exported to and discharged at the port or place for which they are so entered, or used as stores, as the case may be, within such time as he may specify.

(2) All goods in respect of which security is required under the provisions of this section (in this section referred to as bonded goods) shall, after being put on board, be duly exported to and discharged at the port or place for which they are entered, or used as stores for aircraft or vessels, as the case may be.
(3) The proper officer may require the owner of bonded goods which have been put on board an aircraft or vessel for exportation to any port or place to produce, within such time as the proper officer may consider reasonable, a certificate from the customs authorities at the port or place of discharge of the due discharge thereat of the goods according to the export entry; and if the owner fails to produce the certificate, or if the certificate does not show that the goods have been duly discharged thereat according to the export entry and the owner fails to account for any of the goods to the satisfaction of the proper officer, then the proper officer may refuse to allow the owner to enter for export and to export any other goods in respect of which security may be required under this section.
(4) Where bonded goods—
(a) are short-shipped, the owner thereof shall so notify the proper officer within twenty-four hours, or such further time as the proper officer may allow, of the departure of the aircraft or vessel;
(b) have been removed from a warehouse for delivery on board an aircraft or vessel but are not put on board the aircraft or vessel, the owner thereof shall forthwith enter the goods for warehousing, or for exportation, or for use as stores for aircraft or vessels.

(5) Where bonded goods are brought to a customs airport, customs area, or other place, to be put on board an aircraft or vessel and, on examination by the proper officer are found—
(a) not to agree with the particulars of the entry thereof; or
(b) being goods under drawback, not to be goods entitled to drawback,
then the owner of the goods shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

(6) An owner who—
(a) contravenes any condition imposed on him under this section in respect of bonded goods; or
(b) contravenes subsection (4),
shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

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

68.
Stores for aircrafts and vessels
(1) The proper officer may, on application being made on the prescribed form and in the prescribed manner by the master or agent of an aircraft or vessel departing to a foreign port, permit goods to be put on board the aircraft or vessel for use as stores subject to the payment of any export duty and to such conditions as he may think fit.
(2) A person who puts, or causes or permits to be put, goods on board an aircraft or vessel for use as stores in contravention of this section, or of any conditions imposed by the proper officer, shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

69.
Short-shipment of non-bonded goods
(1) Where goods (other than bonded goods within the meaning of section 67) are entered for exportation and the goods are not exported in the aircraft or vessel for which they were so entered or are short-shipped, the owner thereof shall so notify the proper officer within forty-eight hours, or such further period as the proper officer may allow, of the departure of the aircraft or vessel.
(2) An owner who contravenes this section shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings.
[Act No. 10 of 1988, s. 9.]

70.
Export goods stored at risk of owner
Where goods are, with the permission of the proper officer, stored in a transit shed or a customs area pending exportation or transhipment or while in transit, then—
(a) they shall be subject to such rent and other charges as may be prescribed; and
(b) notwithstanding section 13, they shall be so stored at the risk of the owner.

71.
Goods liable to export duty
(1) Where goods are liable on export to duty, the amount of duty shall be stated on the export entry of the goods.
(2) No goods liable on export to duty shall be exported until the export duty has been paid or security therefore given to the satisfaction of the proper officer.
(3) Where goods liable on export to duty are brought to a customs airport, customs area or other place to be put on board an aircraft or vessel and, on examination by the proper officer, are found not to agree with the particulars of the entry, or application for shipment relating thereto, the owner of the goods shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.
Transit or Transhipment Goods
72.
Goods in transit or for transhipment
(1) Subject to sections 16 and 61 and to any regulations, the provisions of this Act relating to the importation, prohibition, restriction, entry, examination, landing, warehousing and exportation of goods shall, so far as they are applicable, apply to goods in transit to a foreign port or place.
(2) The provisions of this Act relating to the importation, prohibition, restriction, entry, examination, landing, warehousing and exportation of goods shall, so far as they are applicable, apply to goods transhipped from the aircraft or vessel in which they are to be exported.

72A.
Licensing of transit godowns
(1) The Commissioner may, on application by the owner, licence any premises, room or enclosed area as a transit godown for the deposit of goods imported in bulk entered in transit, and may refuse to issue a licence without assigning any reasons, or, by notice in writing, revoke or refuse to renew a licence on the grounds stated in the notice.
(2) An application under subsection (1) shall be in such form and comply with such requirements as the Commissioner may, by notice in the Gazette, prescribe.
(3) A licence under this section shall be issued subject to the payment of such fee as the Commissioner may, by notice in the Gazette, prescribe.
[Act No. 4 of 2004, s. 9.]

72B.
Storage of goods entered in transit
(1) No person shall deposit goods entered in transit in any premises, other than a transit godown licensed under section 72A.
(2) Goods may only be deposited in a transit godown where they are entered in transit and are—
(a) imported in bulk in a solid, liquid or gaseous form;
(b) of a class prescribed by the Commissioner by notice in the Gazette; or
(c) of a class which the Commissioner has permitted, in writing, to be stored in a transit godown.

(3) Any person who—
(a) deposits goods in any premises; or
(b) being the owner or occupier of any premises, uses such premises to deposit goods, or permits any other person to deposit goods,
contrary to the provisions of subsection (1) or (2), shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings, and in the case of a continuing offence, to a fine not exceeding five thousand shillings for every day or part thereof during which the offence continues.
[Act No. 4 of 2004, s. 9.]
PART VI – IMPORTATION AND EXPORTATION BY POST
73.
Application of Act to postal articles
(1) This Act shall apply to the importation, exportation, and carriage coastwise, of postal articles:
Provided that—
(i) postal articles may be entered at such place and in such manner as the Commissioner may direct;
(ii) provision of this Act may, in its application to postal articles, be modified or adapted by regulations.

(2) An officer, or an officer in the service of the Post Office, who, in the performance of a duty under this Act, examines or seizes a postal article shall be subject in all respects to this Act and the article shall be dealt with in accordance with this Act.
(3) This section shall be in addition to, and not in derogation of, the provisions of the Postal Corporation of Kenya Act (Cap. 411).
[Act No. 7 of 2002, s. 4.]

74.
Time of entry of postal articles
In the case of goods—
(a) imported by post, the time of entry of the goods for home use shall, except in the case where actual entry is required, be deemed to be the time when the duty thereon is assessed by the proper officer;
(b) exported by post, the time of entry of the goods for export shall be deemed to be the time of the posting of the goods.

PART VII – DEPARTURE AND CLEARANCE OF AIRCRAFT AND VESSELS,
AND DEPARTURE OVERLAND
75.
Clearance required for departure to foreign port
(1) No aircraft or vessel, whether laden or in ballast, shall depart from a port or place in Kenya to a foreign port or place unless a certificate of clearance has been granted in respect of the aircraft or vessel.
(2) The master or agent of a vessel or aircraft which departs from a port or place within Kenya in contravention of subsection (1) shall be guilty of an offence.

76.
Grant of clearance
(1) The master or agent of an aircraft or vessel, whether laden or in ballast, proposing to depart to a foreign port or place shall apply to the proper officer for a certificate of clearance.
(2) Where application for a certificate of clearance is made, then the proper officer shall not grant the certificate of clearance until he is satisfied that all the provisions of this Act in relation to the aircraft or vessel, its cargo, stores, baggage, crew and passengers have been complied with:
Provided that the proper officer may, by reason of the provisions of any other law, refuse to grant the certificate of clearance notwithstanding that he may be satisfied that this Act has been complied with.
(3) Where the master or agent of an aircraft, or of a vessel of less than two hundred and fifty tons register, makes application for a certificate of clearance, then he shall at the same time—
(a) deliver to the proper officer an outward manifest on the prescribed form and in the prescribed manner;
(b) produce to the proper officer all documents which he may require relating to the aircraft or vessel and its cargo, stores, baggage, crew and passengers;
(c) answer all questions which the proper officer may ask relating to the aircraft or vessel and its cargo, stores, baggage, crew and passengers.

(4) Where the master or agent of a vessel of two hundred and fifty tons register or more makes application for a certificate of clearance then the proper officer may grant clearance subject to an undertaking by the master or agent to deliver to the proper officer, within twenty-four hours of the grant of the certificate of clearance, the outward manifest of the vessel in the prescribed form and in the prescribed manner, and to answer all questions which he may be asked relating to the vessel, its cargo, stores, baggage, crew and passengers.
(5) Where an aircraft or vessel proposes to depart to a foreign port in ballast, then the aircraft or vessel shall be cleared in ballast, that is to say, the words “in ballast” shall be written in those parts of the form relating to the aircraft or vessel which contain provisions for the particulars of its cargo; and for the purpose of this subsection, an aircraft or vessel shall be deemed to be in ballast when the aircraft or vessel carries, in addition to the crew and its stores, only passengers and their bona fide personal baggage.
(6) The proper officer may permit the master or agent of an aircraft or vessel to amend an obvious error in the outward manifest, or to supply an omission which, in the opinion of the proper officer, results from accident or inadvertence, by furnishing an amended or supplementary outward manifest in the prescribed manner.
(7) Where a certificate of clearance has been granted but the aircraft or vessel in respect of which it was granted has not left the limits of the port in which it was granted, then the proper officer may inform, either orally or in writing the master of the aircraft or vessel that the certificate of clearance has been cancelled and may require the return of the certificate, and thereupon the certificate shall be deemed never to have been granted.
(8) A master or agent who contravenes an undertaking given under subsection (4), or who refuses to return a certificate of clearance when so required to do under subsection (7), shall be guilty of an offence.

77.
Clearance to be produced
(1) The proper officer may board an aircraft or vessel in Kenya after clearance and require the master thereof to produce his certificate of clearance and to answer questions relating to the aircraft or vessel, its cargo, stores, baggage, crew and passengers.
(2) The master of an aircraft or vessel who fails to produce the certificate of clearance on demand shall be guilty of an offence.

78.
Deficiency or surplus in cargo or stores
(1) Where, on an aircraft or vessel being boarded by the proper officer, goods or stores which are not contained in the manifest of the aircraft or vessel are found on the aircraft or vessel, then the master thereof shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.
(2) Where, on an aircraft or vessel being boarded by the proper officer, goods which were reported on the arrival of the aircraft or vessel as remaining on board for other ports in Kenya, or for re-exportation, or as stores, or which after arrival were put on board for removal under bond to, another port in Kenya, or for exportation or use as stores, are not on board, due allowance being made in the case of stores for goods which might fairly have been consumed or used, then the master of the aircraft or vessel shall be guilty of an offence.
(3) Where, on an aircraft or vessel being boarded by the proper officer after its return to Kenya from a voyage to a foreign port or place, goods which on the previous arrival of the aircraft or vessel were reported as stores or were then put on board as stores are not on board, due allowance being made for goods which might fairly have been consumed or used, the master of the aircraft or vessel shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and in addition, the master shall be liable to pay the duty on the deficiency of the goods at the rate chargeable on the importation of similar goods.
[Act No. 13 of 1995, s. 22.]

79.
Aircraft or vessels to bring to at boarding station
(1) The master of an aircraft or vessel departing to a foreign port shall bring to at the boarding station for the purpose of disembarking any officer on the aircraft or vessel, or for any other purpose of this Act, or when required so to do by the proper officer.
(2) A master of an aircraft or vessel who contravenes this section shall be guilty of an offence.
Departure Overland
80.
Departure overland
(1) A person, whether or not in charge of a vehicle and whether or not the vehicle may be conveying goods which are dutiable, departing overland from Kenya shall not, except where otherwise permitted by the proper officer, depart from Kenya at a place other than from a port or place appointed under section 9 and shall before departing—
(a) report his intended departure to the officer stationed at the port nearest to the point at which he proposes to cross the frontier;
(b) furnish on the prescribed form such information as may be required concerning any vehicle and goods;
(c) make and subscribe a declaration as to the truth of all particulars contained in the form;
(d) fully and immediately answer all relevant questions put to him by the proper officer;
(e) produce all consignment notes or other relevant documents demanded of him by the proper officer;
(f) save as otherwise provided in this Act, make due entry of any vehicle and goods.

(2) The proper officer may stop and question any person, whether or not he has goods in his possession, appearing to be about to depart overland from Kenya, and the person shall thereupon fully and immediately answer all relevant questions concerning his movements and any goods in his possession as may be put to him.
(3) No vehicle or goods to which this section applies shall except under and in accordance with the terms of permission granted by the proper officer, be removed across the frontier until after due entry thereof has been made.
(4) The Commissioner may, subject to such conditions as may be specified, exempt any person or class of persons from the provisions of this section.
(5) A person who contravenes any of the provisions of this section shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture.

PART VIII – CARRIAGE OF GOODS COASTWISE
81.
Meaning of carriage coastwise
Subject to section 82, all goods conveyed by air, sea or inland waterways from a part of Kenya to another part thereof shall be deemed to be carried coastwise, and
an aircraft or vessel conveying the goods shall be deemed to be a
coasting aircraft or coasting vessel, as the case may be.
[Act No. 13 of 1979, s. 2.]

82.
Carriage coastwise in aircraft or vessel from foreign port
(1) When an aircraft or vessel carrying cargo arrives at a port or place in Kenya from a foreign port or place, then the proper officer may permit the aircraft or vessel to carry goods coastwise from that port or place to another port or place within Kenya upon the presentation by the master of a declaration as set out in section 84.
(2) When an aircraft or vessel to which subsection (1) applies conveys goods from one port of Kenya to another port thereof, the aircraft or vessel shall not by virtue thereof be deemed to be a coasting aircraft or coasting vessel within the meaning of this Act.
(3) When goods are carried coastwise under the provisions of this section, then the loading, unloading and delivery thereof shall be subject to any regulations and to such conditions as the Commissioner may impose.
[Act No. 13 of 1979, s. 2.]

83.
Loading, etc., of coastwise cargo
(1) Subject to this Act, save with the written permission of the proper officer and subject to such conditions as he may impose—
(a) no goods shall be loaded from an aircraft or vessel for carriage coastwise at any time whatsoever except as prescribed by the commissioner;
(b) no goods for carriage coastwise shall be loaded on to, or unloaded from, an aircraft or vessel, except at an approved place of loading or at a sufferance wharf:
Provided that goods may be loaded on to, or unloaded from, an aircraft or vessel, from or on to another vessel or vehicle used for the purpose of the carriage of goods between that aircraft or vessel and an approved place of landing or sufferance wharf;
(c) all goods which have been unloaded or landed from a coasting aircraft or vessel shall, if the proper officer so requires, be conveyed forthwith to a customs area or transit shed.

(2) A person who contravenes this section, or any of the conditions which may have been imposed by the proper officer, shall be guilty of an offence and shall be liable to a fine not exceeding forty thousand shillings; and any goods in respect of which the offence has been committed, shall be liable to forfeiture and the coasting aircraft or coasting vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.
[Act No. 13 of 1995, s. 23.]

84.
Transire required for departure coastwise
(1) No coasting aircraft or coasting vessel, nor an aircraft or vessel which is carrying goods coastwise in accordance with section 82, shall depart from a port or place within Kenya unless a transire has been granted by the proper officer.
(2) The master or agent of an aircraft or vessel to which subsection (1) applies proposing to depart coastwise, shall deliver to the proper officer an account in triplicate on the prescribed form containing the particulars of all cargo taken on board for carriage coastwise; and the original thereof, dated and signed by the proper officer, shall constitute the grant of a transire for the carriage of the goods specified therein and shall, in the case of a coasting aircraft or coasting vessel be the certificate of clearance for the aircraft or vessel for the coastwise voyage.
(3) A master or agent who contravenes this section, or who delivers an account of which any of the particulars contained therein is false, shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings and the coasting aircraft or coasting vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.
[Act No. 13 of 1995, s. 24.]

85.
Transire to be delivered on arrival
(1) The master or agent of an aircraft or vessel, arriving at a port or place within Kenya carrying goods coastwise—
(a) shall forthwith deliver the transire to the proper officer of that port or place;
(b) shall not, save with the permission of the proper officer and subject to such conditions as he may impose, permit goods to be unloaded before the delivery of the transire:
Provided that in the case of a vessel of two hundred and fifty tons register or more, the transire may be delivered within twenty-four hours of arrival and the goods may be unloaded therefrom before the delivery of the transire.

(2) A master or agent who contravenes this section shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture, and the coasting aircraft or coasting vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.
[Act No. 13 of 1995, s. 25.]

86.
Power of Commissioner to vary procedure
(1) Notwithstanding this Act, the Commissioner may permit a coasting aircraft or coasting vessel to be loaded, unloaded and cleared subject to such conditions as he may in any particular case impose.
(2) The master or agent of a coasting aircraft or coasting vessel who contravenes any conditions imposed by the Commissioner under this section shall be guilty of an offence and liable to a fine not exceeding forty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture, and the aircraft or vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.
[Act No. 13 of 1995, s. 26.]

87.
Entry outwards of aircraft, etc. carrying goods coastwise
The Commissioner may, subject to such conditions as he may impose, permit the master or agent of an aircraft or vessel carrying goods coastwise to enter outwards the aircraft or vessel and to enter goods carried coastwise therein for exportation without discharging the goods.

88.
Coasting vessel, etc., not to deviate from voyage
The master or agent of a coasting aircraft or coasting vessel—
(a) which deviates from its voyage, unless forced to do so by circumstances beyond the control of the master, the proof whereof shall lie on the master; or
(b) which, having deviated from its voyage or having taken on board a wreck or other goods or discharged goods in the course of a voyage, does not forthwith proceed directly to the nearest port or place in Kenya and explain the circumstances thereof to the satisfaction of the proper officer and deliver the wreck or other goods taken on board to proper officer,
shall be guilty of an offence and any goods in respect of which the offence has been committed shall be liable to forfeiture, and the aircraft or vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.

89.
Examination of coasting aircraft, coasting vessel and goods
(1) An officer may go on board a coasting aircraft or coasting vessel in any port or place or at any period of its voyage and search it and examine all goods on board.
(2) Where an officer goes on board a coasting aircraft or coasting vessel, he may require the master or agent thereof to answer questions concerning the aircraft or vessel, its cargo, stores, baggage, crew and passenger’s and to produce any books and documents which are, or should be, on board.
(3) An officer may examine goods which have been unloaded from an aircraft or vessel after carriage coastwise or which are brought to a port or place to be loaded on to an aircraft or vessel for carriage coastwise; and for the purposes of the examination the officer may require the owner of the goods to unpack or open them and to repack them at the expense of the owner.
(4) A master or agent who, under this section—
(a) refuses to answer a question or to produce books or documents; or
(b) makes an incorrect reply to a question,
shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and the aircraft or vessel in relation to which the offence has been committed may be seized and detained until the fine is paid.
[Act No. 13 of 1995, s. 27.]

PART IX – MANUFACTURE OF EXCISABLE GOODS
90.
Licence required to manufacture excisable goods
(1) No person shall manufacture excisable goods unless he is licensed by the Commissioner to manufacture them.
(2) Notwithstanding the provisions of this Act, no licence shall be issued for the manufacture of plastic bags of less than thirty microns:
Provided that the Commissioner may license a person to manufacture plastic bags of not less than—
(a) 10 microns, if satisfied that such bags are for export; or
(b) 20 microns, if satisfied that such bags are for packing and packaging.

(2A) The licences required under subsection (2) shall be valid for a renewable period of one year.
(3) A person who contravenes this section shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant or excisable goods, or any materials, in respect of which offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 28, Act No. 9 of 2007, s. 3, Act No. 8 of 2008, s. 2A, Act No. 8 of 2009, s. 2.]

91.
Application for and grant of licence
(1) Subject to this Act, the Commissioner may on application grant a licence to a person to manufacture excisable goods; and the Commissioner may, refuse to grant the application and shall furnish the applicant with the reasons for such refusal.
(2) A separate application shall be required in respect of—
(a) each factory in which excisable goods are to manufactured;
(b) each class of excisable goods to be manufactured.

(3) An application under subsection (1) shall be in such form and subject to such requirements as the Commissioner may, by notice in the Gazette, prescribe.
(3A) The Commissioner shall consider every application received under this section and shall serve the applicant with a notice of his decision within thirty days of the receipt of the application:
Provided that where the Commissioner fails to communicate his decision in accordance with this subsection, the application shall be deemed to have been granted.
(4) Where the Commissioner has granted an application for a licence under this section he shall—
(a) on the payment of the prescribed fee by the applicant issue the licence in the prescribed form; and
(b) subject to section 93, on the application and payment of the prescribed fee, issue a renewal of the licence.

(5) A licence under this section shall be issued to a particular person and shall be in respect of the factory and class or classes of excisable goods specified in the licence, and—
(a) the licensed factory shall not be used except for the manufacture of excisable goods specified in the licence; and
(b) only the licensee shall manufacture goods in the licenced factory.

(6) Notwithstanding the provisions of subsection (5), the goods specified in each of the following paragraphs shall be regarded as one class of excisable goods for the purposes of that subsection—
(i) cigarettes, cigars and manufactured tobacco;
(ii) perfumery, cosmetic or toilet preparations.

(7) A person who contravenes subsection (5) shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant or excisable goods or any materials in respect of which the offence has been committed shall be liable to forfeiture.
(8) A licence issued under this section shall be subject to such conditions as the Commissioner may, by notice in the Gazette, prescribe.
(9) A licensee who contravenes a condition of the licence, or who allows any other person to contravene a condition of the licence, shall be guilty of an offence and liable to a fine not exceeding one million five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.
[Act No. 10 of 1980, s. 2, Act No. 8 of 1991, s. 6, Act No. 13 of 1995, s. 29, Act No. 15 of 2003, s. 7, Act No. 4 of 2004, s. 10, Act No. 57 of 2012, s. 2, Act No. 38 of 2013, s. 3.]

91A.
Packing or selling of alcoholic beverages
(1) No person shall pack or sell an alcoholic beverage in a container the capacity of which is less than two hundred millilitres.
(1A) For the avoidance of doubt, the container referred to in subsection (1) shall either be a glass or PET (polyethylene terephthalate) bottles or wooden or metallic containers.
(2) A person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.
[Act No. 4 of 2004, s. 11, Act No. 8 of 2009, s. 3, Act No. 10 of 2010, s. 3, Act No. 10 of 2013, s. 2, Act No. 38 of 2013, s. 4.]

92.
Transfer of licence
(1) A licensee may apply to the Commissioner—
(a) to transfer his licence to another person; and in that case the other person shall join in the application;
(b) to transfer his factory to another place;
(c) to manufacture another class of excisable goods in his factory on his ceasing to manufacture in that factory the class of excisable goods specified in the licence,
and the Commissioner may grant or, refuse to grant any such application and shall furnish the applicant with the reasons for such refusal.

(2) An application under this section shall be made to the Commissioner on the prescribed form.
(3) Where he has granted an application under this section, the Commissioner shall, on surrender of the existing licence and on payment of the prescribed fee, if any, make the necessary endorsement thereon or issue a fresh licence, as he may think most convenient.
[Act No. 38 of 2013, s. 5.]

93.
Power to revoke, etc., licence
(1) The Commissioner may revoke, suspend or refuse to renew a licence where he is satisfied that—
(a) the licensee has been guilty of an offence under this Act;
(b) the licensee has been convicted of an offence involving dishonesty or fraud;
(c) the licensee has become a bankrupt or has entered into an arrangement or composition with or for the benefit of his creditors;
(d) the factory, or the plant therein, is of such a nature or so maintained that the excisable goods manufactured therein are likely to be adversely affected;
(e) the factory is so designed, equipped or sited as to render difficult the supervision thereof for excise purposes;
(f) the licensee has failed to comply with the provisions of section 95.

(2) Where the Commissioner revokes, suspends or refuses to renew a licence under this section, then he shall forthwith give notice of that fact to the licensee.

94.
Effect of revocation, etc., of licence
(1) Where a licence has been revoked or suspended or has expired, then the licensee shall—
(a) forthwith cease to manufacture the excisable goods referred to in the licence;
(b) forthwith pay duty on the excisable goods manufactured under the licence;
(c) not dispose of materials in the factory to which the licence relates except in accordance with such conditions as the Commissioner may impose.

(2) A person who contravenes this section or any of the conditions imposed by the Commissioner under this section shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant or excisable goods, or any materials, in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 30.]

95.
Provision of facilities for excise control
(1) The Commissioner may, for the purpose of ensuring proper excise control, require a licensee to provide and maintain, to the satisfaction of the Commissioner and at a rental to be approved by him, suitable housing accommodation for the officer assigned to the duty of excise control of a factory.
(2) The Commissioner may, for the purpose of ensuring proper excise control, require a licensee to provide and maintain, to the satisfaction of the Commissioner, suitable office accommodation and equipment in a factory for the officer assigned to the duty of excise control of the factory.
(3) A licensee shall provide and maintain at his factory just scales and weights, lights, ladders and other equipment as may be necessary in order to enable the proper officer to take account of, or check by weight, gauge or measure, all excisable goods or materials in the factory.
(4) A licensee shall provide and maintain at his factory such metering devices, for the purpose of accounting for excise duty, as the Commissioner may, by notice in the Gazette, prescribe in accordance with subsection (5).
(5) A notice made under subsection (4) shall—
(a) come into operation upon the expiry of six months from the date of publication in the Gazette or such further period, not exceeding six months, as the Commissioner may, on the application of a licensee, permit in respect of that licence; and
(b) be made by the Commissioner only after consideration of the relevant international standards and practice.

(6) The Commissioner shall ensure that a metering device prescribed under subsection (4) does not compromise the safety of the goods or materials that are manufactured by a licensee or the health of the consumers of such goods or materials.
[Act No. 10 of 2010, s. 4, Act No. 4 of 2012, s. 2.]

96.
Licensee to keep books, etc.
(1) A licensee shall keep at his factory and in the prescribed manner all records which may be required under the provisions of this Act and shall make therein the prescribed entries relating to the manufacture, storage and delivery of excisable goods and materials.
(1A) Every entry into a record kept pursuant to subsection (1) shall—
(a) in the case of a manual record, be made legibly in ink and, subject to section 112, shall not be altered in any manner other than by cancellation, that is to say, by drawing a single line in ink through the incorrect entry so as to allow the original entry to remain legible, or by amendment, that is to say, by so drawing a single line through the incorrect entry and making a correct entry above the entry so cancelled; and
(b) in the case of an electronic or other form of record, be made in such manner as may be prescribed, and shall not be altered except in the prescribed manner.

(2) A licensee shall render, in the prescribed manner and at the prescribed times, such returns as may be required of him in accordance with the provisions of this Act.
(3) Records required to be kept under the provisions of this Act shall at all times be available for inspection by the proper officer and the officer may take copies of any entry therein.
(3A) A licensee who fails to render a return in accordance with subsection (2) shall, in addition to any penalty which may be imposed under section 225A, be liable to a penalty equal to ten thousand shillings or five per cent of the amount of any excise duty payable, whichever is higher.
(4) A licensee who contravenes this section shall be guilty of an offence.
[Act No. 15 of 2003, s. 8, Act No. 4 of 2004, s. 12, Act No. 8 of 2008, s. 3.]

PART X – CONTROL OF MANUFACTURE OF EXCISABLE GOODS
97.
Manufacturers’ entry
(1) A licensee shall, before commencing manufacture, make entry on the prescribed form and in the prescribed manner of each of the building, room, place and item of plant in his factory which he proposes to use in the manufacture, preparation for sale, or storage, of materials or excisable goods; and in each entry he shall specify the purpose for which each building, room, place or item of plant is to be used and, unless the Commissioner otherwise allows, the mark by which it is to be distinguished.
(2) Where a licensee is a body corporate then the entry shall be made under the seal thereof and the signature of any principal officer thereof authorized by the constitution of the body corporate to authenticate the seal, or by an agent duly authorized under the seal and signature.
(3) The Commissioner may at any time by notice in writing to the licensee require new entry to be made by the licensee within one month of the date of the notice; and as from the expiration of that period the existing entry shall be deemed to be void and of no effect.
(4) A licensee shall not, in the course of the manufacture, preparation for sale, or storage, of materials or excisable goods—
(a) make use of a building, room, place or item of plant in relation to which entry is required under this section unless there is in force in respect thereof a valid entry;
(b) make use of a building, room, place or item of plant for any purpose other than that for which it was entered;
(c) effect, without the prior permission of the proper officer, an alteration in shape, position or capacity to a building, room, place or item of plant.

(5) A licensee who contravenes subsection (1) or (4) shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant or excisable goods, or any materials, in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 31.]

98.
Rooms and plant to be marked
(1) Unless the Commissioner otherwise allows, a licensee shall cause to be painted and maintained legibly and in oil colours on the outside of the door of every room, and on every item of plant, required to be entered in accordance with the provisions of this Act the name of the room or item of plant according to the purpose for which it was so entered; and where more than one room or item of plant is to be used for the same purpose, then each such room or item of plant, as the case may be, shall in addition be marked with progressive numbers.
(2) A licensee who contravenes any of the provisions of this section shall be guilty of an offence.
Provisions Relating to the Manufacture of Spirits
99.
Power of Commissioner to direct that Act and regulations shall not apply
(1) Where the Commissioner—
(a) is satisfied that a process of manufacture carried on by a person involving the manufacture of spirits is primarily directed to the production of an article other than spirits; or
(b) sees fit in the case of a person manufacturing spirits by a process other than distillation of a fermented liquor,
he may direct that, subject to compliance with such conditions as he may impose, such provisions of this Act or of any regulations made thereunder as may be specified in the direction shall not apply in the case of that person.

(2) If a person in whose case a direction has been given by the Commissioner under this section acts in contravention of, or fails to comply with, any conditions imposed by the direction, he shall be guilty of an offence and any plant, spirits or materials in respect of which the offence has been committed shall be liable to forfeiture.

100.
Distillers and rectifier’s warehouse
(1) A distiller may provide in association with his distillery a place of security known as a distiller’s warehouse for the deposit of spirits manufactured at that distillery and if the place is approved by the Commissioner and it is included in the distillers entry of premises, he may deposit therein without payment of duty spirits so manufactured.
(2) A rectifier may provide within his factory premises a place of security known as a rectifier’s warehouse for the deposit of spirits removed from a distillery or distiller’s warehouse for the purpose of rectification and compounding by him at that factory and, if the place is approved by the Commissioner and it is included in the rectifier’s entry of premises, he may deposit therein without payment of duty spirits so removed from a distillery or distiller’s warehouse.
(3) If in the case of a distiller’s warehouse the place of security provided is outside the distiller’s distillery the Commissioner may attach to his approval such conditions as he may see fit, and if those conditions are not for the time being observed, that place shall be deemed not to have been approved by the Commissioner.
(4) A distiller’s warehouse, wherever situated, or a rectifier’s warehouse shall, for the purpose of section 95, be deemed to be part of the distiller’s distillery or the rectifier’s factory, as the case may be.

101.
Restriction on delivery of immature spirits
(1) Subject to subsection (2), no spirits shall be delivered from a distillery or a distiller’s warehouse unless they have been warehoused for a period of at least three years.
(2) Subsection (1) shall not apply to—
(a) spirits delivered for rectification;
(b) spirits delivered for denaturing;
(c) spirits delivered for exportation;
(d) spirits distilled at a strength of not less than sixty degrees over proof delivered for compounding;
(e) spirits delivered to a wine manufacturer.

(3) If a person delivers or procures or attempts to procure the delivery of spirits in contravention of this section he shall be guilty of an offence; and any spirits the delivery of which has been procured by the offence shall be liable to forfeiture.

102.
Restriction on carrying on of other trades by distiller,
rectifier or denaturer
(1) Save with the written permission of the Commissioner and subject to such conditions as he may impose, a distiller or rectifier or denaturer shall not carry on within his factory any trade other than that of a distiller, rectifier or denaturer, nor shall he carry on another trade on premises communicating otherwise than by a public roadway with his factory.
(2) A person contravening this section or any conditions imposed by the Commissioner under subsection (1) shall be guilty of an offence.

103.
Keeping or use of still otherwise than by distiller or rectifier
prohibited
(1) Subject to this section, no person other than a distiller or rectifier shall keep or use a still.
(2) The Commissioner may permit, subject to such conditions as he may impose, the keeping and use of a still by a person other than a distiller or rectifier where the still is—
(a) kept by a person who makes or keeps stills solely for the purpose of sale; or
(b) kept or used for experimental, analytical or scientific purposes; or
(c) kept or used for the manufacture of an article other than spirits.

(3) A person who, not being a distiller or rectifier or permitted to do so by the Commissioner, keeps or uses a still shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and the still shall be liable to forfeiture.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 32.]

104.
Deposit of rectified or compounded spirits in bonded warehouse
(1) Spirits which have been rectified or compounded by a rectifier may be deposited in a bonded warehouse in such quantities and under such conditions as the Commissioner may determine for exportation or shipment for use as stores for an aircraft or vessel.
(2) No rectified or compounded spirits may be delivered from a bonded warehouse for home use save with the written permission of the Commissioner and subject to such conditions as he may impose.

105.
Penalty for excess or deficiency in stocks of spirits
(1) If, when an account is taken by a proper officer and a balance struck of the spirits in the stock of a distiller including stocks in the distiller’s warehouse, or the stock of a person engaged in rectifying or denaturing spirits, or in the stock of a person obtaining spirits in respect of which excise duty has been remitted for a particular purpose, any spirits in excess of what should be in stock are found, the distiller or person shall, unless the excess is accounted for to the satisfaction of the Commissioner, be guilty of an offence and liable to a fine equal to double the excise duty on a quantity of spirits equal to the excess and the excess of spirits shall be liable to forfeiture.
(2) If, when an account is taken and a balance struck as aforesaid, a deficiency in the spirits which should be in stock is found which cannot be accounted for to the satisfaction of the Commissioner after due allowance has been made for losses in manufacture or in transit, the distiller or person shall be guilty of an offence and liable to a fine equal to double the excise duty on a quantity of spirits equal to the deficiency, and duty on such a quantity shall thereupon become due and shall, notwithstanding section 134, be forthwith paid.

106.
Denaturing of spirits
(1) No spirits shall be denatured for sale as denatured spirits except in accordance with a formula prescribed by regulations for either methylated spirits or specially denatured spirits:
Provided that spirits shall, where imported, be denatured prior to release from the port of importation, or, if locally manufactured, prior to release from the premises of the distiller.

(2) A person who contravenes this section shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any plant, spirit or materials in respect of which such offence has been committed shall be liable to forfeiture.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 33, Act No. 15 of 2003, s. 9.]

107.
Application of Part IX and sections 97 and 98 to the denaturing
of spirits
Part IX and sections 97 and 98 shall apply to the denaturing of spirits as they do to the manufacture of excisable goods:
Provided that nothing in section 91(5) shall preclude a distiller, licensed to denature spirits, from denaturing in his distillery spirits manufactured by him therein.
Provisions Relating to Manufacture of Excisable Goods other than Spirits
108.
Storage of excisable goods after manufacture
(1) All excisable goods (other than spirits) shall, after the process of manufacture has been completed, be forthwith removed to a room, of which entry for that purpose has been made in accordance with this Act, and which shall be known as the stock room; and the goods shall be kept therein until delivery therefrom is made in accordance with the provisions of this Act.
(2) A stock room shall not be used for any purpose other than of storing excisable goods after they have been manufactured.
(3) The excisable goods in a stock room shall be stored so as to facilitate the taking of a full account of them.
(4) A licensee who contravenes this section shall be guilty of an offence and any excisable goods in respect of which the offence has been committed shall be liable to forfeiture.

109.
Provisions relating to stock book and returns
(1) A licensee (other than a distiller) shall keep a stock book in the prescribed form and shall each day enter therein the particulars of all excisable goods received in and delivered from the stock room; and the stock book shall at all times be available for inspection by the proper officer, and the officer may take copies of any entry therein.
(2) All deliveries made from the stock room shall be entered in the stock book at the time of delivery from the stock room.
(3) The licensee shall transmit to the Commissioner, on or before the twentieth day of each month, a transcript in duplicate of the stock book showing all transactions entered therein during the previous month.
(4) A licensee who contravenes this section shall be guilty of an offence and any excisable goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 8 of 1996, s. 3.]

110.
Deficiency or excess in stock of licensee
(1) Where, upon the proper officer taking stock in the factory of a licensee (other than a distiller, denature or rectifier)—
(a) the licensee fails to account to the proper officer for any excisable goods manufactured by him, then the duty on all such excisable goods shall thereupon become due and shall, notwithstanding section 137, be forthwith paid;
(b) excisable goods are found in excess of the quantity which, according to the books of the licensee, should be therein, then those goods shall be liable to forfeiture.

(2) A licensee (other than a distiller, denaturer or rectifier)—
(a) who fails to account to the proper officer for any excisable goods manufactured by him; or
(b) in whose factory any excisable goods are found in excess of the quantity which, according to the books, should be therein,
shall, unless he explains the deficiency or excess to the satisfaction of the proper officer, be guilty of an offence.

111.
Provisions relating to manufacture of tobacco
(1) A tobacco licensee shall, if the Commissioner by notice in writing so requires, keep a materials account in the prescribed form and shall enter therein particulars of all unmanufactured tobacco received at the factory for manufacture; and the account shall be balanced at the end of each month.
(2) A tobacco licensee shall not, save with the permission of the Commissioner and subject to such conditions as he may impose, sell or otherwise dispose of tobacco which is not liable to duty.
(3) A tobacco licensee who contravenes this section or any condition imposed by the Commissioner in accordance with this section shall be guilty of an offence and any excisable goods or materials in respect of which the offence has been committed shall be liable to forfeiture.

112.
Provisions relating to brewing book
(1) The proper officer shall deliver a book in the prescribed form, to be known as the brewing book, to every brewer and the brewer shall keep the book in his factory and available at all times for inspection by the proper officer; and the officer may take copies of any entry therein.
(2) A brewer shall—
(a) at least two hours before he commences to mash malt or corn, or dissolve other materials, enter in the brewing book the day and hour of the next brewing;
(b) at least two hours before the time so entered for the next brewing, enter in the brewing book the separate quantities of the malt, corn, and other materials which he proposes to use in the next brewing;
(c) at least two hours before the time so entered for the next brewing, enter in the brewing book the time when all the worts are to be drawn off the grains in the mash tin;
(d) within one hour of the worts being collected or, if they are not collected before nine o’clock in the afternoon, before nine o’clock in the morning of the following day, enter in the brewing book the particulars of the quantity and gravity of the worts and the description and number of each vat into which the worts have been collected; and where fermentation has commenced in any worts before entry of the quantity and gravity thereof has been made, then the true original gravity thereof before fermentation shall be entered.

(3) A brewer shall, when making any entry in accordance with the provisions of subsection (2), also enter the date and hour on which the entry is made; and no entry in the brewing book shall be cancelled, obliterated, or in any way altered.
(4) A brewer who contravenes any of the provisions of this section shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding five hundred thousand shillings or to both; and any excisable goods, or any materials, in respect of which the offence has been committed shall be liable to forfeiture.
(5) For the purpose of subsection (2)“other materials” include—
(a) sugar;
(b) any saccharine substance, extract, or syrup;
(c) rice;
(d) flaked maize and any other description of corn which in the opinion of the Commissioner is prepared in a manner similar to flaked maize;
(e) any other material capable of being used in brewing except malt, corn, hops, hop concentrate or hop oil.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 34.]


113.
Notice of brewing may be required
A brewer shall, if so required by the proper officer, give notice in writing containing the prescribed particulars to the proper officer at least forty-eight hours before the time when he proposes to make his next brewing.

114.
Provisions relating to brewing
(1) All worts shall be removed successively and in the customary order of brewing from the mash tun to the underback, coppers, coolers and collecting and fermenting vats or, if these are separate vats, from the collecting vats within the premises where the brewing commenced.
(2) A brewer who contravenes this section shall be guilty of an offence and any excisable goods and materials in respect of which the offence has been committed shall be liable to forfeiture.

115.
Provision relating to false declaration of original gravity
of beer
(1) Before bottling, packing or removing beer to another brewery or licensed premises, the brewer shall declare, in such form as the proper officer may require, the original gravity of the beer.
(2) A brewer who makes a false declaration under this section shall be guilty of an offence.
[Act No. 13 of 1995, s. 35.]

116.
Liability of beer to excise duty
No beer may be consumed on, or removed from, a brewery or licensed premises unless duty has first been paid thereon:
Provided that the Commissioner may either specifically or generally permit—
(i) the removal of beer, in bulk, to another brewery or licensed premises for the purpose of bottling or packing;
(ii) the drawing of production samples of beer by the brewer for analysis without payment of duty thereon under such conditions as the Commissioner may require.

116A.
Fortification and mixing of wine
Subject to such conditions and limitations as may be prescribed, a wine manufacturer may—
(a) mix in his factory, spirits with wine manufactured by him in a proportion not exceeding ten litres of proof spirit to one hundred litres of wine:
Provided that the mixture shall not thereby be raised to a greater strength than fifty degrees of proof; or
(b) during the process of manufacture in his factory, mix wine made by him with imported wine on which the full duties of customs have been paid.
[Act No. 8 of 1991, s. 7.]

116B.
Excise stamps
(1) The Minister may, by notice in the Gazette, specify the excisable goods to which the requirement for the affixing of excise stamps under this section applies.
(2) The Commissioner shall, by notice in the Gazette, specify the types and descriptions of excise stamps to be affixed on the goods specified under subsection (1).
(3) No person shall—
(a) import any goods specified in accordance with subsection (2) unless such person is registered with the Commissioner; or
(b) offer such goods for sale or free distribution or use them for any other purpose unless there is affixed on the goods the prescribed excise stamps.

(4) A person who contravenes any of the provisions of this section commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.
(5) A licensee or importer who is convicted of an offence under subsection (4) shall, in addition to the penalty prescribed under that subsection, be liable to have his licence cancelled, or registration under the section revoked, as the case may be.
[Act No. 8 of 2008, s. 4.]

PART XI – DUTIES
117.
Imposition, rates etc., of duty
(1) Subject to provisions of this Act, there shall be charged—
(a) in respect of the goods specified in the First Schedule which are imported into Kenya import duties at the respective rates specified in the fifth column of that Schedule.
(b) in respect of goods specified in the second column of the Second Schedule which are imported into Kenya, suspended duties at the respective rates specified in the fourth column of that Schedule;
(c) in respect of the goods specified in the Fourth Schedule, export duties at the rates and in the circumstances specified therein;
(d) in respect of excisable goods and services specified in the second column of the Fifth Schedule, excise duties at the respective rates specific in the Schedule;
(e) dumping duties in accordance with any order made under section 125;
(f) in respect of the goods specified in the Eleventh Schedule which are imported into Kenya, variable import duty in accordance with that Schedule;
(g) in respect of gaming takings, duty in accordance with the provisions of section 126A,
and those duties shall be levied, collected, and paid in accordance with this Act.

(2) Notwithstanding subsection (1), no duty shall be charged on—
(a) the goods listed in Part A of the Third Schedule, when imported, or purchased before clearance through the customs, for use by the persons named in that Part in accordance with any condition attached thereto as set out in that Part; and
(b) the goods listed in Part B of the Third Schedule when imported or purchased before clearance through the customs, in accordance with any condition attached thereto as set out in that Part.

(3) Notwithstanding subsection (2), the goods listed in Part C of the Third Schedule shall, when imported or purchased before clearance through the customs for use by the persons named, or in accordance with any conditions attached thereto as set out, in that Part, be charged duty at the rates specified therein.
[Act No. 10 of 1988, s. 10, Act No. 8 of 1989, s. 3, Act No. 8 of 1991, s. 8, Act No. 9 of 1992, s. 8, Act No. 7 of 2002, s. 5, Act No. 15 of 2003, s. 10, Act No. 8 of 2008, s. 5.]

117A.
Railway development levy
(1) There shall be paid a levy to be known as the railway development levy on all goods imported into the country for home use.
(2) The levy shall be at the rate of 1.5 percent of the customs value of the goods and shall be paid by the importer of such goods at the time of entering the goods for home use.
(3) The purpose of the levy shall be to provide funds for construction of a standard gauge railway network in order to facilitate the transportation of goods.
(4) The Cabinet Secretary shall, in regulations, establish a railway development levy fund with which all the proceeds of the levy shall be paid.
(5) The fund referred to in subsection (4) shall be established, managed, administered or wound up in accordance with section 24 of the Public Financial Management Act, 2012 and the regulations made under that Act.
[Act No. 38 of 2013, s. 6.]

118.
Arrangements for bilateral relief from duty
The Minister may from time to time by notice in the Gazette declare that arrangements specified in the notice, being arrangements that have been made between the Government of Kenya and another government with a view to the mutual relief of duty, shall, notwithstanding section 117, have effect in relation to duty and the notice shall, subject to the provisions of this section, have effect according to its tenor.
[Act No. 13 of 1984, s. 3, Act No. 8 of 1991, s. 9.]

118A.
Retaliatory imposition of duties, etc.
The Minister may, by notice in the Gazette, impose on any goods imported into Kenya, such conditions or rates of duty as he may deem necessary to protect Kenya’s interest where the country of importation practises unfair or restrictive trade practices on Kenyan goods exported to that country.
[Act No. 4 of 1999, s. 9.]

119.
Variation of rates of duty
(1) Subject to subsection (1A) the Minister may, by order in the Gazette, amend the First, Fourth or Fifth Schedule by increasing or decreasing any of the rates of import duty, export duty or excise duty by an amount not exceeding thirty per centum of the rate set out therein:
Provided that—
(i) in the case of maize, wheat, sugar, milk, rice or used clothing, the rates of duty may be increased by an amount not exceeding one hundred per centum of the prescribed rates;
(ii) nothing in this subsection shall empower the Minister to impose duty on any article which is free of duty.

(1A) Notwithstanding the provisions of subsection (1), the Minister may, by order in the Gazette, decrease the rate of duty on maize, wheat, beans, milk or rice by any amount during periods of civil strife, national disaster or calamity declared under any written law for the time being in force and shall, upon revocation of the declaration, increase the rates of duty by such amount as may be necessary to restore the rates prevailing immediately before the declaration.
(2) The Minister may, by order in the Gazette, amend the Second Schedule by increasing or decreasing any rate of suspended duty imposed in the fourth column thereof up to that provided in the third column thereof.
(3) The Minister may, by order in the Gazette, amend the Eleventh Schedule.
(4) A variation in the rate of any duty made under subsection (1), (1A) or (2) shall be laid before the National Assembly without unreasonable delay and shall cease to have effect if a resolution of the National Assembly disapproving the variation is passed within twenty days from the first day on which the National Assembly next sits after the variation is so laid.
(5) Where an order made under subsection (1),(1A) or (2) ceases to have effect by virtue of a resolution under subsection (3), then so much of any duty paid under the order as may be in excess of that duty, if any, payable on the article immediately after cessation shall, on application, be refunded to the person who paid it.
(6) An application for a refund payable under subsection (4) shall be made in the prescribed manner and within twelve months of its becoming due.
(7) Notwithstanding the provisions of subsection (1) and (1A), the Minister may, by notice in the Gazette, adjust the specific rate of excise duty to take account of inflation.
[Act No. 9 of 1992, s. 9, Act No. 13 of 1995, s. 36, Act No. 2 of 1997, s. 2, Act No. 7 of 2002, s. 6, Act No. 4 of 2012, s. 2]

120.
Effect of alteration of duty on contract for sale
If, after a contract has been entered into for the sale or delivery of goods at a price which includes duty charged under section 117, an alteration takes place in the rate or amount of the duty before the goods are entered for home use or before export duty or excise duty becomes due, then, in the absence of express written provision in the contract to the contrary, the contract shall have effect as follows—
(a) in the event of the alteration being the increase of an existing duty or the imposition of a new duty, the seller, after payment of all the duty payable, may add the difference caused by the alteration to the agreed price;
(b) in the event of the alteration being the reduction or abolition of an existing duty, the purchaser may deduct the difference caused by the alteration from the agreed price;
(c) in the event of the alteration not being finally adopted, the agreed price shall be readjusted so as to allow for any resultant refund or payment of duty.

121.
Effect of obligation to pay duty
Where an obligation has been incurred, whether by bond or otherwise, for the payment of duty, then the obligation shall be deemed to be an obligation to pay all duties which are or may become payable or recoverable under the provisions of this Act.

122.
Recovery of duty
Where goods are liable to duty, then the duty shall constitute a debt due to the Government and be charged on the goods in respect of which the duty is payable; and the duty shall be payable by the owner of the goods and may, without prejudice to any other means of recovery, be recovered by legal proceedings brought by the Commissioner.

123.
Effect of alteration in classification of goods
If any practice or method of procedure of customs approved by the Commissioner or arising from a ruling by the Customs Co-operation Council relating to the classification or enumeration of goods is altered with the result that less duty is thereafter chargeable on goods of the same class or description, no person shall thereby become entitled to a refund of any duty paid before the alteration took effect.
[Act No. 10 of 1987, s. 5.]

124.
Time of entry for home use determines rate of duty
(1) Subject to section 74 and subsection (3) of this section, duty shall be paid at the rate in force at the time when the goods liable to the duty are entered for home use:
Provided that, in the case of goods imported overland, the time of entry of the goods for home use shall be deemed to be the time when the duty thereon is paid.
(2) Except where otherwise provided in the Fourth Schedule, and subject to section 74, export duty shall be paid at the rate in force at the time when the goods liable to the duty are entered for export:
Provided that where export duty is imposed, or the rate of existing export duty is varied, between the time goods are entered for exportation and the time of exportation of the goods, export duty shall be paid at the rate in force at the time of exportation of the goods.
(3) Where, in accordance with section 27 (3), goods are entered before the arrival at the port of discharge of the aircraft or vessel in which the goods are imported, the duty upon the goods shall be paid at the rate in force at the time of arrival of the aircraft or vessel at the port or place of discharge.
[Act No. 8 of 1991, s. 10.]

125.
Advisory committee on dumping and subsidization of goods
(1) The Minister shall, by notice in the Gazette, establish an advisory committee comprising not more than ten persons, to investigate cases of dumping or subsidization of goods exported to Kenya, and to report its findings to the Minister.
(2) The Minister shall, in regulations, prescribe the procedure to be followed by the advisory committee in conducting investigations under subsection (1), and may impose such provisional measures as may be necessary to protect any industry in Kenya that may be threatened by such dumping or subsidization:
Provided that such provisional measures shall not be imposed before the expiry of sixty days after the commencement of investigations under this section.
[Act No. 8 of 1997, s. 5, Act No. 5 of 1998, s. 6, Act No. 7 of 2002, s. 7.]

125A.
Imposition of anti-dumping duty and countervailing duty
(1) Where upon the findings of the committee appointed under section 125, the Minister is satisfied—
(a) that goods of any description are being or have been imported into Kenya in circumstances in which they are, under this Act, to be regarded as having being dumped; or
(b) that some government or public body outside Kenya has been giving a subsidy in respect of goods of any description imported into Kenya, the Minister may, where the exporter offers to increase the price of the respective goods to the extent of the dumping margin or the amount of the subsidy accept such offer, or may, by order in the Gazette—

(i) in the case of goods regarded as having been dumped, impose an anti-dumping duty; or
(ii) in the case of goods in respect of which a subsidy has been or is being given, impose a countervailing duty.
(2) The anti-dumping duty or countervailing duty imposed under subsection (1) shall be chargeable in addition to any other duty for the time being chargeable on the respective goods:
Provided that—
(a) the rate of such duty shall not exceed the dumping margin or the amount of subsidy found to exist; and
(b) no duty shall be imposed under this section by the Minister is not satisfied that the effect of the dumping or of the subsidy is such as to cause or threaten material injury to an established industry in Kenya or is such as to retard materially the establishment of an industry in Kenya.

(3) An order under subsection (1) shall specify either the country from which the goods originated or from which the goods were imported into Kenya and may include provisions with respect to the description of the goods chargeable with duty as may appear to the Minister to be required for the purposes of this Act and, in particular, provisions limiting the description of the goods by reference to the particular persons or organisations by whom the goods were produced or who were concerned with the production of the goods in some specified manner.
[Act No. 5 of 1998, s. 6.]

126.
Dumping and subsidy defined
(1) For the purposes of section 125, imported goods shall be regarded as having been dumped—
(a) if the export price of the goods exported to Kenya is less than the comparable price, in the ordinary course of trade, for the products when destined for consumption in the exporting country;
(b) if the importation of the goods causes injury to or retardation of a Kenyan industry.

(2) References in section 125 to a subsidy are reference to the giving of a financial contribution on the production or export of goods by the government or a public body within the exporting country in such a manner as to cause injury to the Kenyan industry, including—
(a) a direct transfer of funds such as a grant, a loan or equity infusions;
(b) an indirect transfer of funds such as a loan guarantee;
(c) provision of goods or services other than general infrastructure, or purchase of goods;
(d) fiscal incentives, such as tax credits;
(e) the making of payments to a funding mechanism, or directing a private body to carry out any of the functions specified above; or
(f) any form of income or price support.

(3) In section 125, the word “injury” means material injury, threat of material injury or material retardation.
[Act No. 8 of 1997, s. 6.]

126A.
Repealed by of Act No. 8 of 2009, s. 4
[Act No. 15 of 2003, s. 11.]
Value of Imported Goods, Excisable Goods and Goods for Export
127.
Determination of value of imported goods
(1) The value of imported goods, whether exempt from duty, liable to specific duty or liable to ad valorem duty, shall be as laid down in the Seventh Schedule.
(2) In the case of goods imported under a contract of sale, the price paid or payable on that sale shall be deemed to be the value:
Provided that the price is properly adjusted to take account of circumstances which differ from a sale as is contemplated by the Seventh Schedule.
(3) The rate of exchange to be used for determining the equivalent in Kenya currency of any foreign currency shall be the prevailing current selling rate of sight drafts as last notified by the Central Bank, or the rate applied by banks or financial institutions, whichever is the higher, when an entry is presented and accepted by the proper officer in accordance with section 127A.
(4) Notwithstanding subsection (3), the rate applicable shall be further determined by the Commissioner as the weighted average of the prevailing selling rates in force during
the previous week and, subject to any official revaluation or devaluation
of any currency as notified by the Central Bank, shall remain valid
throughout the week.
(5) Notwithstanding subsection (3) and (4) and section 127A, the Minister may, by notice in the Gazette, declare the rate of exchange to be used from time to time in determining the equivalent in Kenya currency of any foreign currency.
(6) Subject to subsection (3) and (4), the Commissioner may require any bank or financial institution to submit details or any information in respect of the rates of exchange of foreign currency and such details or information shall be given immediately.
(7) Any bank or financial institution which fails to comply with subsection (6) shall be guilty of an offence.
(8) Where an entry has been checked and accepted by the proper officer, the duty payable shall be paid within five days from the date of acceptance, and in default, a new assessment of the value shall be determined in accordance with subsection (3) and (4).
[Act No. 4 of 1993, s. 12, Act No. 5 of 1998, s. 7.]

127A.
Determination of value of goods for export
(1) The value of goods for export, whether exempt from duty, liable to specific duty or liable to ad valorem duty, shall include—
(a) the cost of the goods to the buyer outside Kenya;
(b) packing charges;
(c) transport and all other charges up to the time of delivery of the goods on board the exporting aircraft or vessel, or at the place of exit from Kenya;
(d) any levy, cess, duty or tax.

(2) In the case of goods for re-exportation, the value shall include—
(a) the landed cost at the time of importation;
(b) all other charges, including transport up to the time of the delivery of the goods on board the exporting aircraft or vessel or to the place of exit from Kenya.

(3) The rate of exchange to be used for determining the equivalent in Kenya currency of any foreign currency shall be the prevailing current buying rate of sight drafts as last notified by the Central Bank, or the rate applied by banks or financial institutions, whichever is the higher, when an entry is presented and accepted by the proper officer in accordance with section 63.
(4) Notwithstanding subsection (3), the rate applicable shall be further determined by the Commissioner as the weighted average of the prevailing buying rates in force during the previous week and, subject to any official revaluation or devaluation of any currency as notified by the Central Bank, shall remain valid throughout the week.
(5) Subject to subsection (3) and (4), the Commissioner may require any bank or financial institution to submit details or any information in respect of the rates of exchange of foreign currency and such details or information shall be given immediately.
(6) Any bank or financial institution which fails to comply with subsection (5) shall be guilty of an offence.
(7) Where an entry has been checked and accepted by the proper officer, the duty payable shall be paid within five days from the date of the acceptance, and in default, a new assessment of the value shall be redetermined in accordance with subsection (3) and (4).
[Act No. 10 of 1986, s. 6, Act No. 9 of 1992, s. 10, Act No. 4 of 1993, s. 13, Act No. 5 of 1998, s. 8.]

127B.
Appraisal of value of imported goods, etc.
(1) Notwithstanding any other provisions of this Act, where the proper officer or any other person authorized by the Commissioner has reason to believe that the value of the imported goods or goods for export or goods for re-exportation is below or above the transaction value, the proper officer or authorized person shall appraise or cause the goods to be appraised in accordance with the methods set out in the Seventh Schedule.
(2) A certificate of the appraised or adjusted value given under the hand of the proper officer or other person authorized by the Commissioner shall be prima facie evidence of the value of those goods.
(3) Upon written request, the importer shall be entitled to an explanation, in writing, from the proper officer or person authorized by the Commissioner as to the method applied in appraising the goods pursuant to this section.
(4) Where a dispute arises regarding the decision of the proper officer or other person authorized by the Commissioner under the foregoing subsections, the importer or other person liable for the payment of duty may within thirty days from the day he is notified of the decision, appeal to the Tribunal established under section 127E.
(5) The Commissioner shall consider and determine every appeal made under subsection (4) and shall cause this decision thereon to be served upon the appellant specifying reasons therefor.
(6) A person aggrieved by a decision of the Commissioner under subsection (5) may appeal to the High Court within fourteen days.
(7) An importer may remove goods subject to an appraisal under this section from customs authority pending final determination of the value thereof by the proper officer or other person authorized by the Commissioner upon payment of a cash deposit equivalent to the assessed duty, and any excess thereof shall be refunded within thirty days from the date of final determination of duty payable.
(8) The Commissioner shall cause to be kept records of all administrative and judicial decisions taken under this section in conformity with the Agreement on Customs Valuation.
(9) In this section, the expression “Agreement on Customs Valuation” refers to the Agreement on Implementation of Article VII of the General Agreements on Tariffs and Trade on Customs Valuation signed in Marrakesh, Morocco, on the 15th, April, 1994.
[Act No. 4 of 1999, s. 10, Act No. 9 of 2000, s. 6, Act No. 6 of 2001, s. 4.]

127C.
Value of goods for excise duty purposes
(1) The value of imported goods for purposes of levying excise duty shall be the sum of—
(a) the value of such goods ascertained for the purpose of import duty; and
(b) the amount of import duty, suspended duty and dumping duty if any.

(2) The value of locally manufactured goods for purposes of levying ad valorem excise duty shall be the ex-factory selling price.
(3) For the purposes of subsection (2), the ex-factory selling price shall not include—
(a) value added tax;
(b) deleted by Act No. 4 of 2004, s. 13;
(c) cost of excise stamps;
(d) the cost of any returnable package, box, bottle or container

(4) Deleted by Act No. 15 of 2003, s. 12.
[Act No. 8 of 1991, s. 11, Act No. 4 of 1993, s. 14, Act No. 6 of 1994, s. 4, Act No. 8 of 1996, s. 4,Act No. 6 of 2001, s. 5, Act No. 7 of 2002, s. 8, Act No. 15 of 2003, s. 12, Act No. 4 of 2004, s. 13,Act No. 10 of 2010, s. 5, Act No. 4 of 2012, s. 4, Act No. 57 of 2012, s. 3.]

127D.
Pre-shipment inspection of imported goods
(1) Notwithstanding any other provisions of this Act, the Minister may, by notice in the Gazette, prescribe certain imported goods which shall be subject to pre-shipment inspection.
(2) The Commissioner may appoint any person for the purpose of conducting pre-shipment inspection of the goods prescribed under subsection (1).
(3) An appointment under subsection (2) shall be subject to such terms and conditions as may be agreed in writing between the Government and the appointed person.
(4) A person appointed under subsection (2) shall, on completion of pre-shipment inspection of any goods, issue a certificate of such inspection to the Commissioner and to the importer.
(4A) Goods in respect of which a certificate of inspection has been issued under subsection (4) shall not be subject to any further inspection except by a proper officer.
(5) A person who, at the commencement of this section is appointed by the Minister to conduct pre-shipment inspection, shall be deemed to be a person appointed by the Commissioner under this section.
(6) In this section, the expression “pre-shipment inspection” means the examination of imported goods prior to shipment in order to ascertain the description, quality, quantity and the value of such goods.
[Act No. 8 of 1996, s. 4, Act No. 9 of 2000, s. 7.]

127E.
Establishment of Appeals Tribunal
(1) The Minister shall, by order published in the Gazette, establish an Appeals Tribunal for the purposes of hearing appeals on disputes arising from the decisions of the Commissioner or a person authorised by him, or of the proper officer.
(2) The Tribunal shall consist of a chairman and not less than four but not more than six members who shall be appointed by the Minister and who shall hold office for such period and upon such terms and conditions as the Minister may determine.
(2A) The members of the Tribunal shall be entitled to receive such subsistence and travelling allowances as the Minister may determine.
(3) The quorum for a meeting of the Tribunal shall be the chairman and two other members.
(4) All matters before the Tribunal shall, in the event of a difference of opinion, be decided by the votes of the majority of the members thereof.
(5) A person aggrieved by a decision of the Tribunal under this section may appeal to the High Court within fourteen days.
(6) A person shall cease to be a member of the Tribunal if the person—
(a) resigns from office by notice in writing addressed to the Minister;
(b) becomes an employee of the Kenya Revenue Authority;
(c) is absent from three consecutive sittings of the Tribunal without written notification to the Chairman;
(d) is adjudged bankrupt by a court of competent jurisdiction;
(e) is convicted of an offence under any tax law or of a criminal offence;
(f) is unable to perform the duties of the office by reason of physical or mental infirmity; or
(g) conducts himself in a manner which is inconsistent with continued membership in the Tribunal.
[Act No. 9 of 2000, s. 8, Act No. 8 of 2008, s. 6, Act No. 10 of 2010, s. 6, Act No. 57 of 2012, s. 4.]


127F.
Procedure for appeals
(1) A person—
(a) in the case of a dispute arising from an assessment of duty under section 127B, pay the Commissioner that part of the assessed duty not in dispute and thirty per cent of the duty in dispute; or
(b) in any other dispute, furnish all excise duty accounts where applicable, and shall pay the amount of duty shown thereon as being due and payable.

(2) Any duty deposited with the Commissioner under subsection (1) shall, where the decision of the Tribunal or the High Court, as the case may be, is in favour of the aggrieved person, be refunded to such person.
(3) On hearing an appeal, the Tribunal shall have all the powers of a subordinate court of the first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.
(4) Where the Tribunal considers it desirable for the purpose of avoiding expense or delay or any other special reason to do so, it may receive evidence by affidavit and administer interrogations and require the person to whom the interrogations are administered to make a full and true reply to the interrogations within the time specified by the Tribunal.
(5) In its determination of any matter the Tribunal may take into consideration any evidence which it considers relevant to the subject of an appeal before it, notwithstanding that the evidence would not otherwise be admissible under the law relating to evidence.
(6) The Tribunal shall have the power to award the costs of any proceedings before it and to direct that such costs be taxed in accordance with any scale prescribed for suits in the High Court or to award a specified sum of costs.
(7) All summons, notices or other documents issued under the hand of the chairman of the Tribunal shall be deemed to be issued by the Tribunal.
(8) Any interested party may be represented before the Tribunal by an advocate or by any other person whom the Tribunal may, in its discretion, admit to be heard on behalf of that party.
(9) Any person summoned by the Tribunal to attend and give evidence or to produce any records, books of account, statements, or other documents, or required to answer interrogations and who without sufficient cause—
(a) refuses or fails to attend at the time and place mentioned in the summons served on him; or
(b) refuses or fails to answer fully and satisfactorily, to the best of his knowledge and belief all questions lawfully put to him by or with the concurrence of the Tribunal; or
(c) refuses or fails to produce any records, books of account, statements or other documents which are in his possession or under his control mentioned or referred to in any summons served on him,
shall be guilty of an offence and liable to a fine not exceeding one hundred and fifty thousand shillings, or to imprisonment for a term not exceeding two years or both.

(10) Where the Tribunal awards costs in any appeal, it shall, on application by the person to whom the costs are awarded, issue to him a certificate stating the amount of costs.
(11) Every certificate issued under subsection (10) may be filed in the High Court by the person in whose favour the costs have been awarded and upon being so filed shall be deemed to be a decree of the High Court and may be executed as such provided that an order for costs against the Government shall not be enforced save in the manner provided for by the Government Proceedings Act (Cap. 40).
(12) The Chief Justice may make rules governing appeals and providing for the fees to be paid, the scale of costs of any such appeal, the procedure to be followed therein and the manner of notifying the parties thereto; and until such rules are made, and subject thereto, the provisions of the Civil Procedure Act (Cap. 21) shall apply as if the matter appealed against were a decree of a subordinate court exercising original jurisdiction.
(13) Where in any suit for the recovery of any tax, or other amounts payable under this Act, the court is satisfied that any party to the suit has appealed to the Tribunal, the court shall on such conditions as it may think fit stay the proceedings in the suit pending the determination of the appeal.
[Act No. 9 of 2000, s. 8, Act No. 6 of 2001, s. 6, Act No. 8 of 2008, s. 7, Act No. 57 of 2012, s. 5.]
127G.
The value of services for the purposes of levying excise duty shall be the price paid or payable by the final consumer of such services in an open market transaction between buyer and seller independent of each other.
[Act No. 7 of 2002, s. 9.]

Computation of Duty: General
128.
Adjustment for fractions of a shilling
Notwithstanding section 117 (1), where the total amount of duty computed with reference to any one customs document—
(a) is one hundred shillings or less, no duty shall be charged;
(b) deleted by Act No. 7 of 2002, s. 10;
(c) exceeds one hundred shillings and includes a fraction of a shilling, the fraction shall be treated as a complete shilling.
[Act No. 8 of 1991, s. 12, Act No. 7 of 2002, s. 10.]

129.
Duty computed on gross weight of package in certain cases
Where goods liable to duty according to weight are imported in a package, and the goods are intended for sale, or are normally sold retail, in that package, then, if the package—
(a) is not marked or labelled with the net weight thereof; or
(b) is not commonly sold as containing, or as reputed to contain, a specific quantity or weight,
and in either case, the owner of the goods is unable to satisfy the proper officer of the correct net weight thereof, the goods shall be liable to duty according to the gross weight of the package and its contents.

130.
Duty computed on reputed quantity in certain cases
Where goods liable to a specific duty are imported in a package and the goods are intended for sale, or are normally sold retail, in that package, then, if the package—
(a) is marked or labelled as containing a specific quantity of the goods; or
(b) is commonly sold as containing, or as reputed to contain, a specific quantity of the goods,
the package shall be deemed to contain not less than the specific quantity.

131.
Commissioner may fix litre equivalent of other liquid measurement
Where goods liable to duty according to liquid measurement are imported in a package and—
(a) the goods are intended for sale, or are normally sold, in that package; and
(b) the package is of a standard capacity according to a liquid measurement other than a liquid measurement based on fractions or multiples of a litre, then the Commissioner
may, by notice in the Gazette, declare that the package, having
a capacity within such limits as may be specified in the notice, shall
be deemed to contain such fractions or multiples of a litre as may
be specified in the notice.

132.
Allowance for tare
For the purpose of the computation of the duty to which goods are liable, the Commissioner may fix the allowance for tare which may be granted and the conditions under which any such allowance may be granted.

133.
Duty on packages in certain cases
Where goods are imported or exported in a package which, in the opinion of the Commissioner—
(a) is not the normal or proper package for those goods; or
(b) is designed for use, subsequently to importation or exportation, other than as a package for any goods of the same or a similar nature,
then, subject to any provision to the contrary in this Act, the package shall be liable to duty as if it were a separate article and shall, for all the purposes of this Act, be deemed to be a separate article.

Computation and Payment of Excise Duty on Spirits
134.
Time of delivery determines rate of excise duty
(1) The excise duty on spirits shall become due and shall be charged at the rate in force when the spirits liable to duty are delivered from the distillery or the distiller’s warehouse; and the duty shall, subject to any remission or rebate thereof which may be granted in accordance with the provisions of this Act, be paid by the distiller, or secured to the satisfaction of the proper officer, on its becoming due.
(2) Notwithstanding subsection (1), where spirits are removed from a distillery or distiller’s warehouse to a rectifier’s warehouse, the duty shall become due and shall be charged at the rate in force when the spirits liable to the duty are delivered from the rectifier’s or compounder’s warehouse and duty shall be paid by the rectifier or compounder, or secured to the satisfaction of the proper officer, on its becoming due.
(3) The Commissioner may permit the payment of duty under subsections (1) and (2) to be deferred, to a date not later than the twentieth day of the month following that on which it became due.
[Act No. 10 of 1986, s. 7, Act No. 8 of 1996, s. 5, Act No. 8 of 2008, s. 7A.]

135.
Duty on spirits — attenuation charge
(1) In the case of a distillery where spirits are manufactured by distillation of a fermented liquor, the excise duty on spirits shall, in addition to being charged on the spirits distilled, be chargeable in respect of each distillation period in accordance with the following provisions of this section.
(2) There shall be calculated the quantity of spirits at proof capable of being produced from any wort and wash made at the distillery on the assumption that from every one hundred litres of wort and wash one litre of spirits at proof will be produced for every five degrees of attenuation, that is to say for every five degrees of difference between the highest gravity of the wort and the lowest gravity of the wash before distillation, and so in proportion for any less number of litres of wort and wash or any less number of degrees of attenuation.
(3) The gravity of the wort or wash for the purposes of subsection (2) shall be taken as that declared by the distiller:
Provided that if either gravity is found by the proper officer before distillation, and the gravity so found is, in the case of wort, higher, or, in the case of wash, lower than that declared by the distiller, the gravity to be taken shall be that so found by the proper officer.
(4) There shall be ascertained the quantity computed at proof of the spirits and feints produced at the distillery after deducting the feints remaining at the end of the last preceding distillation period.
(5) If the quantity calculated under subsection (2) exceeds the quantity ascertained under subsection (4), the excise duty on spirits shall be charged and become payable immediately on that excess:
Provided that the Commissioner may make such allowance as in his opinion is reasonable from any charge under this section on proof to his satisfaction that the charge arises wholly or in part on account of the removal of wash for the separation of yeast.
(5A) Notwithstanding the foregoing provisions of this section, in calculating the quantity of spirits produced at a distillery, the Commissioner may apply such other method as may be prescribed after consultation with the industry.
(6) In this section, the expression “distillation period” means the period prescribed by regulations for the purpose of taking account of feints and spirits produced.
[Act No. 9 of 2007, s. 4.]

136.
Ascertainment of strength, weight, and volume of spirits
(1) For the purpose of this Act the strength, weight or volume of spirits shall be ascertained in accordance with the provisions of this section.
(2) Spirits shall be deemed to be at proof if the volume of the ethyl alcohol contained therein made up to the volume of the spirits with distilled water has a weight equal to that of twelve-thirteenths of a volume of distilled water equal to the volume of the spirits, the volume of each liquid being computed as at 10.55 degrees Centigrade.
(3) The expressions “degree of proof”, “degree over proof” and “degree under proof” shall be construed by reference to a scale on which one hundred degrees denotes the strength of spirits at proof, and—
(a) one hundred and one degrees, or one degree over proof, denotes the strength of spirits which would be at proof if there were added thereto such quantity of distilled water as would increase by one per cent the volume of the spirits computed as at ten degrees Centigrade;
(b) ninety-nine degrees, or one degree, under proof, denotes the strength of spirits which would be at proof if there were removed therefrom such quantity of distilled water as would reduce by one per cent the volume of the spirits computed as at ten degrees Centigrade,
and so in proportion for any other number of degrees.

(4) The equivalent at proof of spirits not at proof shall for the purposes of this Act be deemed to be their volume—
(a) multiplied by the number of degrees of proof representing their strength; and
(b) divided by one hundred.

(5) The Commissioner may make regulations prescribing the means to be used for ascertaining for any purpose the strength, weight or volume of spirits, and any such regulations may provide that in ascertaining for any purpose the strength of spirits any substance contained therein which is not ethyl alcohol or distilled water may be treated as if it were, and different regulations may be made for different purposes.
(6) This section shall apply to denatured spirits and fermented liquor as it applies to spirits.

136A.
Excise stamps on wines and spirits
Every bottle or other container of wines or spirits manufactured in or imported into Kenya shall have affixed on it, in the prescribed manner, an excise stamp issued under the authority of the Commissioner.
[Act No. 10 of 2006, s. 2.]
Payment of Duty on Excisable Goods other than Spirits
137.
Time of delivery determines rate of excise duty, etc.
(1) The duty on locally manufactured excisable goods other than spirits shall become due and shall be charged at the rate in force when the goods liable to duty are delivered from the stock room of the licensee; and the duty shall, subject to any remission or rebate thereof which may be granted in accordance with the provisions of this Act, be paid by the licensee on its becoming due.
(2) Duty on usage of mobile cellular phone services shall be charged at the rate in force when the service is purchased by the consumer and shall be collected and paid by the mobile cellular phone service providers licensed by the Communications Commission of Kenya.
(3) The duty on money transfer services shall be charged at the rate in force when the service is provided and shall be collected and paid by the cellular phone service providers, banks, money transfer agencies and other financial institutions.
(4) The duty on other fees charged by financial institutions shall be charged at the rate in force when the fee is being charged and shall be collected and paid by the financial institutions.
(5) The Commissioner may permit the payment of tax under subsections (1), (2), (3) and (4) to be deferred to a date not later than the twentieth day of the month following that on which then it becomes due.
(6) In this section, “Communications Commission of Kenya” means the Commission by that name established under the Kenya Communications Act, 1998 (No. 2 of 1998).
[Act No. 8 of 1991, s. 13, Act No. 8 of 1996, s. 5A, Act No. 7 of 2002, s. 11, Act No. 38 of 2013, s. 8.]
Exemption and Remission of Duty
138.
Power of Minister to refund of duties
(1) Subject to subsection (2) and (5), the Minister may, by order in the Gazette, remit in whole or in part duty payable by any person on goods, aircraft, vessels or vehicles imported by that person if he is satisfied that it is in the public interest to do so.
(2) Remission under subsection (1) shall only be in respect of—
(a) deleted by Act No. 4 of 1993, s. 15;
(b) deleted by Act No. 4 of 1993, s. 15;
(c) such other goods, (excluding passenger motor vehicles of a seating capacity of less than twenty-six persons, building materials, audio and audio-visual electronic equipment, spare parts, office furniture and other office equipment, stationery, textiles, new and used clothing and footwear, maize, wheat, sugar, milk, rice, edible vegetable fats and oils) imported by any person for donation to non-profit making organizations or institutions approved by the Government, for their official use or for free distribution to poor and needy persons, or for use in medical treatment, educational, religious or rehabilitation work:
Provided that remission under this paragraph may be granted in respect of—
(i) all goods (excluding passenger motor vehicles of a seating capacity of less than fourteen persons, building materials, audio and audio-visual electronic equipment, spare parts, office furniture and other office equipment and stationery) donated or purchased for donation by any person to registered homes for poor and needy persons, subject to approval by the Minister; or
(ii) maize, wheat, sugar, milk, edible vegetable fats and oils, rice, textiles, new and used clothing and footwear imported during periods of civil strife, national calamity or disaster declared under any law for the time being in force, or where they are intended for use in officially recognized refugee camps in Kenya;

(d) raw materials for use in the manufacture of insecticides, fungicides and similar products, including component parts used in the manufacture of agricultural and horticultural equipment;
(e) capital equipment and machinery imported solely for use in the manufacture of goods in a licensed customs bonded factory for export only;
(f) goods including motor vehicles and aircraft, imported or purchased by any company which has been granted an oil exploration or oil prospecting licence in accordance with a production sharing contract with the Government of Kenya and in accordance with the provisions of the Petroleum (Exploration and Production) Act (Cap. 308); and
(g) official aid funded projects, subject to a security being given to the Commissioner in accordance with Part XII where the project is being executed by a contractor other than the official aid fund agency:
Provided that an exemption under this paragraph shall not apply to spare parts, equipment, machinery, materials or motor vehicles in respect of any agreement between the Government and an aid agency entered into after the 1st July, 2003.

(3) Pending the publication of an order under subsection (1), the Minister may direct the Commissioner to remit duty as though the order had actually been published:
Provided that the order shall be published within ninety days from the date the Minister issues the directive under this section; and the fact that the order is not published shall not affect the validity of anything done pursuant thereto during the period of ninety days.
(4) Where goods in respect of which duty is remitted under this section are disposed of locally in a manner inconsistent with the purpose for which remission was granted, the provisions of section 155 shall apply.
[Act No. 9 of 1992, s. 11, Act No. 6 of 1994, s. 5, Act No. 13 of 1995, s. 37, Act No. 5 of 1998, s. 9, Act No. 4 of 1999, s. 11, Act No. 9 of 2000, s. 9, Act No. 6 of 2001, s. 7, Act No. 7 of 2002, s. 12, Act No. 15 of 2003, s. 13, Act No. 4 of 2004, s. 14.]

139.
Remission of excise duty
(1) Subject to the provisions of this Act, the Commissioner may remit any excise duty payable in respect of goods where he is satisfied—
(a) that a person is, in accordance with the provisions of this Act, entitled to remission;
(b) that the goods were destroyed by accidental fire, or other unavoidable cause, while in a building, room or place which has been entered in accordance with this Act and which is in the factory in which they were manufactured;
(c) that the goods have, with the prior permission of the Commissioner, been destroyed by the licensee under the supervision of a proper officer prior to their leaving any building, room or place which has been entered in accordance with this Act and which is in the factory in which they were manufactured;
(d) that the goods were duly exported or shipped for use as stores for any aircraft or vessel:
Provided that remission shall be granted only to the licensee and shall not be granted—
(i) where the goods are so exported or shipped in a vessel of less than ten tons register;
(ii) where the amount of the duty thereon is less than fifty shillings; or
(iii) unless previous notice of exportation or shipment is given to the proper officer and the goods are produced for examination by the proper officer at the port or place of exportation;

(e) that the goods were delivered by the manufacturer thereof—
(i) to the Kenya Defence Forces;
(ii) to the Armed Forces Canteen Organization; or
(iii) to privileged bodies and persons described in paragraphs (3) and (4) of item 7 of Part A of the Third Schedule;

(f) that in the case of spirits—
(i) deleted by of Act No. 10 of 2010, s. 7;
(ii) deleted by of Act No. 10 of 2010, s. 7;
(iii) deleted by of Act No. 10 of 2010, s. 7;
(iv) they have been delivered from a distillery or distiller’s warehouse, in such quantities and in accordance with such conditions as he may determine, for use for medical, scientific or educational purposes, to one of the following persons—
(v) they have been delivered for denaturing in accordance with this Act or, in the case of compounded spirits, deposited in a bonded warehouse for exportation or shipment for use as stores for an aircraft or vessel in accordance with this Act;
(vi) they have been used for the manufacture of power alcohol and if he is further satisfied that the power alcohol has been delivered from the factory in such quantities as he may determine to a hydrocarbon warehouse for the manufacture of gasohol;

(g) that in case of petroleum oils, they were refined in Kenya:
Provided that remission under this paragraph shall be granted subject to such limit as the Minister may by notice in the Gazette, specify;
(h) that in the case of alcoholic beverages, remission shall be granted to such extent as the Minister may, by notice in the Gazette, specify;
(i) that in the case of water, remission shall be granted to such extent as the Minister may, by notice in the Gazette, specify.

(2) No remission of excise duty under subsection (1) shall be granted unless the person claiming remission presents a claim in the prescribed manner within a period of twelve months from the date when the duty became due.
(3) The Commissioner shall, subject to the provisions of this Act, refund any excise duty paid on goods to which a remission applies under this section.
[Act No. 10 of 1980, s. 2, Act No. 8 of 1985, s. 4, Act No. 8 of 1991, s. 15, Act No. 9 of 1992, s. 12, Act No. 8 of 1997, s. 7, Act No. 9 of 2000, s. 10, Act No. 4 of 2004, s. 15, Act No. 10 of 2010, s. 7, Act No. 4 of 2012, s. 5, Act No. 57 of 2012, s. 6.]

140.
Exemption from certain duties of goods remaining on board
Subject to the provisions of this Act, goods remaining on board and exported in the aircraft or vessel in which they were imported, whether as stores or otherwise, shall be exempt from liability to duty.
[Act No. 8 of 1991, s. 16.]

141.
Exemption from certain duties on goods entered for exportation,
etc.
(1) Subject to the provisions of this Act, goods entered under bond and proved to the satisfaction of the Commissioner to have been duly—
(a) exported, transhipped or exported in transit; or
(b) used as stores for aircraft or vessels; or
(c) used in the blending of lubricating base oils; or
(d) used in the manufacture under bond subject to such conditions and limitations as may be specified; or
(e) exported from a bonded factory; or
(f) used in an export processing zone subject to the conditions and limitations specified in the Export Processing Zones Act (Cap. 517); or
(g) exported from an export processing zone to any place outside Kenya,
shall be exempt from duty.

(2) Subject to this Act and to any regulations made thereunder, raw materials imported for the manufacture of—
(a) goods for export;
(b) goods for home use as may be approved by the Commissioner,
shall be exempt from duty where the users and the approved quantity of such raw materials have been Gazetted:
Provided that in the case of refined sugar for industrial use, used in the manufacture of goods for home use, twenty-five per centum of the duty shall be payable.

(3) No exemption from suspended duty or dumping duty shall be granted in respect of goods to which this section applies except goods entered for transhipment or in transit or under subsection (1)(f) or (g).
(4) Any person who diverts any goods manufactured for export to home use without payment of the duty due thereon shall be guilty of an offence and shall be liable to a fine not exceeding the higher of one million five hundred thousand shillings or three times the value of the goods, or to imprisonment for a term not exceeding three years, or to both.
[Act No. 12 of 1990, s. 38, Act No. 8 of 1991, s. 17, Act No. 4 of 1993, s. 16, Act No. 6 of 1994, s. 6, Act No. 8 of 1996, s. 6, Act No. 9 of 2000, s. 11, Act No. 6 of 2001, s. 8, Act No. 7 of 2002, s. 13.]

142.
Exemption from certain duties of certain re-imports
(1) Subject to the provisions of this Act, where goods which are liable to duty have been exported from and are subsequently re-imported into Kenya then, if the Commissioner is satisfied—
(a) that any duty to which the goods were liable prior to their exportation has been paid and either—
(i) no drawback of the duty was allowed on exportation; or
(ii) if allowed, the drawback has been repaid to the proper officer; and

(b) that the goods have not been subjected to any process after being so exported, or, if so subjected, that their form or character has not been changed and that the goods at the time of re-importation are not liable to duty ad valorem; and
(c) that the owner of the goods prior to exportation gave notice thereof in writing to the proper officer and produced the goods for inspection by him at the port or place from which they were exported,
the goods shall, save as otherwise provided in this Act, be exempt from liability to duty:
Provided that the Commissioner may in any particular case direct that this section shall apply to goods notwithstanding that paragraph (c) has not been complied with if he is satisfied that a failure so to direct would involve hardship.

(2) In the case of goods to which subsection (1) would apply but for the fact that at the time of re-importation they are liable to duty ad valorem, the goods shall on re-importation be chargeable with duty as if the value of the goods were only the amount of the increase in value attributable to the process; and for the purpose of ascertaining the increase in value, any sum paid for the execution of the process shall, unless the Commissioner otherwise directs, be taken to be the amount of the increase.
[Act No. 8 of 1991, s. 18.]

143.
Exemption from certain duties of temporary imports
(1) Subject to the provisions of this Act, goods imported in accordance with this section for a temporary use or purpose only shall be exempt from liability to duty.
(2) No goods shall be exempt from liability to duty under this section unless the proper officer has given permission for the importation; and the proper officer shall not give permission—
(a) unless he is satisfied that the goods are imported for a temporary use or purpose only;
(b) unless the owner thereof has deposited, or given security for, the amount of the duty to which the goods would otherwise be liable:
Provided that, notwithstanding subsection (4), the Commissioner may, in the case of filming equipment of a non-consumable nature, accept an undertaking by the importer to export the equipment within the period stipulated in this action in lieu of duty deposit or security subject to the payment of a non-refundable fee of one per cent ad valorem or such other fee as may be prescribed.

(3) Where the proper officer gives permission for the importation of goods under this section, he may impose such conditions as he thinks fit and, whether or not he imposes any conditions, it shall be a condition of importation that the goods shall be exported within such period, not exceeding twelve months from the date of importation, as is consistent with the purpose for which the goods are imported unless the Minister otherwise directs.
(4) Where the conditions of the importation of the goods have been complied with, then, on the exportation of the goods, any deposit or security given under subsection (2) shall be refunded or discharged, as the case may be.
(5) Where a condition of the importation of goods has been contravened, then the owner shall be guilty of an offence and shall be required to pay a penalty equal to the duty which was due and payable on the goods on the date of importation.
(6) Notwithstanding subsection (5), it shall be a condition that the owner exports the goods within such period, not exceeding sixty days, from the date of the payment of the penalty, as the proper officer may allow, in default of which the goods shall be liable to forfeiture.
(7) Subject to subsection (5), sections 14 and 15, and notwithstanding subsection (6), the Commissioner may, upon receipt of an application from the owner and prior to the expiry of the period allowed for temporary importation, allow entry of the goods for home use if he is satisfied with the reasons given.
(8) The Minister may, by notice in the Gazette, declare that the goods specified in the notice shall not be imported in accordance with this section, or may only be so imported subject to the goods being liable to such proportion of the duty thereon as may be specified in the notice.
[Act No. 10 of 1988, s. 12, Act No. 8 of 1991, s. 19, Act No. 4 of 1993, s. 17, Act No. 6 of 2001, s. 9.]

143A.
Exemption of Excise duty on water
Subject to the provisions of this Act, water, other than water which is bottled or otherwise packaged for sale, shall be exempt from excise duty.
[Act No. 10 of 2010, s. 8.]

144.
Remission of certain duties on lost or destroyed goods
Where goods are lost or destroyed by accident either—
(a) on board an aircraft or vessel; or
(b) in removing, loading, unloading, or receiving them into, or delivering them from, any customs area or warehouse; or
(c) in a customs area or warehouse,
before they are delivered out of customs control to the owner thereof, then, if the Commissioner is satisfied that the goods have not been and will not be consumed in Kenya, he may remit the duty payable in respect of those goods.

Refund, Rebate, and Drawback
145.
Refund of certain duties to privileged institutions and personnel, etc.
(1) The Minister may, by order in the Gazette, direct that, in the case of goods specified therein imported by or on behalf of any person specified therein, any duty paid in respect of the goods shall be refunded, subject to such terms and conditions as may be prescribed in the order or in regulations.
(2) The Commissioner may make a refund of any duty paid in respect of goods imported into Kenya, subject to such conditions as he may determine—
(a) in pursuance of an agreement entered into between the Government of Kenya and a government to which section 118 refers;
(b) where the goods are purchased by the Navy, Army and Air Force Institutes for resale;
(c) where the goods are motor spirit or products ordinarily used as such or lubricating oil, and are purchased for official use in vehicles of the Navy, Army and Air Force Institutes or of the Commonwealth War Graves Commission;
(d) where the goods are motor spirit or products ordinarily used as such or lubricating oil, and are purchased by—
(i) an embassy, consulate or diplomatic mission of another country for its official use;
(ii) a member of a diplomatic nation or a consular officer who is a permanent and pensionable member of the foreign service of another country, for its personal use, and that other country accords a similar privilege to permanent members of a Kenya diplomatic nation or a permanent Kenya consular officer;
(iii) one of the international organizations named in the Ninth Schedule for his official use;
(iv) a Secretary-General, a Deputy or Assistant Secretary-General or a Director-General, of one of the organizations listed in the Ninth Schedule for his personal use; or
(v) any other international organization prescribed by the Minister, by order in the Gazette, for the purposes of this subsection, or its entitled personnel.

(3) No refund of duty shall be made under subsection (2) unless the person claiming the refund presents a claim within a period of twelve months from the date of the payment of the duty.
(4) The Minister may, by order in the Gazette, amend the Ninth Schedule.
[Act No. 8 of 1991, s. 20.]

146.
Refund of certain duties on pillaged, etc. goods and of duty
paid in error
(1) Subject to this section and any regulations, the Commissioner may grant a refund—
(a) of any duty which has been paid in respect of goods which have been damaged or pillaged during the voyage or damaged or destroyed while subject to customs control;
(b) of any duty which has been paid in error;
(c) deleted by Act No. 6 of 2001, s. 10;
(d) of any excise duty which he is satisfied has been paid in respect of goods in relation to which, had the duty not been paid, a remission or rebate thereof would have been granted in accordance with this Act.

(2) No refund of duty shall be granted under subsection (1) unless the person claiming the refund presents a claim within a period of twelve months from the date of the payment of the duty.
(3) The Commissioner shall, subject to the provisions of this Act, refund any duty paid on goods in respect of which an order remitting the duty has been made under section 138:
Provided that the refund shall not be made in respect of goods imported prior to the relevant date specified in such order.
[Act No. 8 of 1991, s. 21, Act No. 9 of 2000, s. 12, Act No. 6 of 2001, s. 10.]

147.
Refund of certain duties on returned or destroyed goods
(1) Subject to section 146(2) and to such conditions as the Commissioner may see fit to impose, where it is shown to the satisfaction of the Commissioner—
(a) that goods were imported in pursuance of a contract of sale and that the description, quality, state or condition of the goods was not in accordance with the contract; and
(b) that the importer with the consent of the seller either—
(i) returned the goods unused to the seller and for that purpose complied with the provisions of section 64 as to entry as if they had been goods to which that section applies; or
(ii) destroyed the goods unused,
the Commissioner shall refund any duty paid on the importation of the goods.

(2) No refund of duty shall be granted under subsection (1) unless the person claiming the refund presents a claim within a period of twelve months from the date of the payment of the duty.
(3) Nothing in this section shall apply to goods imported on approval, or on sale or return, or other similar terms.
[Act No. 10 of 1986, s. 8, Act No. 8 of 1991, s. 20.]

148.
Rebate of certain duties on damaged goods
(1) Where goods imported into Kenya are damaged before the goods are delivered out of customs control, then, subject to the provisions of this section, a rebate of the duty payable in respect of the goods may be allowed in such amount as, in the opinion of the Commissioner, is in proportion to the damage sustained by the goods.
(2) No rebate of duty shall be allowed under this section in respect of goods (not being goods to which section 154 applies) except where the proper officer is satisfied that the carrier or insurer of the goods has made an allowance to the owner in respect of the damage; and in no case shall the rebate exceed such proportion of the duty as the amount of the allowance so made bears to the value, calculated in accordance with section 127, of the undamaged goods.

148A.
Remission or refund of duty on bad debts
Where a person has sold excisable goods or services and has accounted for and paid excise duty on that sale but has not received any payment from the purchaser, he may, after a period of three years from the date of that sale, or where that person has become legally insolvent, apply to the Commissioner for a refund or remission of the excise duty involved, and, subject to the regulations, the Commissioner may refund or remit the excise duty:
Provided that no application for a refund or remission shall be made under this section after the expiry of five years from the date of sale.
[Act No. 8 of 2008, s. 8.]

149.
Rebate of excise duty
(1) Subject to the provisions of this Act, the Commissioner may grant a rebate of any duty payable in respect of locally manufactured excisable goods where he is satisfied that a person is, in accordance with the provisions of this Act, entitled to the rebate.
(2) No rebate of duty shall be granted unless the person claiming the rebate presents a claim in the prescribed manner within a period of twelve months from the date when the duty became due.
(3) A person who—
(a) makes a fraudulent claim for rebate of duty; or
(b) with intent to evade payment of duty, gives false information or makes a false statement in relation to any claim for rebate,
shall be guilty of an offence and liable to a fine not exceeding the higher of one million, five hundred thousand shillings or three times the amount of the claim, or to imprisonment for a term not exceeding three years, or to both.
[Act No. 8 of 1991, s. 23, Act No. 4 of 2004, s. 16.]

149A.
Rebate or refund on converted excisable goods or plastic
bags for packing
(1) Where excisable goods on which duty has been paid are converted into other excisable goods liable to duty, whether specific or ad valorem, the excise manufacturer shall be entitled to a rebate of the excise duty previously paid on the converted excisable goods.
(2) Where excise duty has been paid on plastic bags which have subsequently been used for packing by local manufacturers, the excise duty previously paid shall, on application by the manufacturer, be refunded by the Commissioner.
(3) Where excise duty has been paid on spirits which have subsequently been used for manufacturing unexcisable goods, the excise duty previously paid shall, on application by the manufacturer, be refunded by the Commissioner:
Provided that this subsection shall apply only where the manufacturer is licensed by the Commissioner.
[Act No. 8 of 2008, s. 9, Act No. 10 of 2010, s. 9.]

150.
Repealed by Act No. 8 of 1991, s. 24.

151.
Drawback of certain duties on exportation
(1) Subject to this section, drawback of duty, may on exportation or the performance of such conditions as may be prescribed, be allowed in respect of such goods, in such amount and on such conditions as may be prescribed.
(2) Where the owner of goods claims, or proposes to claim, drawback in respect thereof, then, as a condition to the grant of drawback, he shall—
(a) enter the goods in the prescribed form and in the prescribed manner and produce the goods for examination by the proper officer before the exportation thereof or the performance of the conditions on which drawback is allowed; and
(b) make and subscribe a declaration on the prescribed form to the effect that the conditions under which drawback may be allowed have been fulfilled and, in the case of goods exported or put on board an aircraft or vessel for use as stores—
(i) that the goods have actually been exported or put on board for use as stores; and
(ii) that the goods have not been re-imported and are not intended to be re-imported into Kenya; and
(iii) that the owner at the time of the entry of the goods for drawback was, and continues to be, entitled to drawback; and

(c) present his claim for drawback within a period of twelve months from the date of the exportation of the goods or the performance of the conditions on which drawback may be allowed.

(3) Drawback shall not be allowed in respect of goods where—
(a) the value of the goods for home use is less than the amount of the drawback which may be otherwise allowed; or
(b) the import duty thereon was less than five hundred shillings.

(4) Where the proper officer is satisfied that the goods on the drawback, after being duly put on board an aircraft or vessel for exportation or for use as stores—
(a) have been destroyed by accident on board the aircraft or vessel; or
(b) have been materially damaged on board the aircraft or vessel and that the goods have, with the permission of the proper officer, been discharged at the port or place within Kenya and abandoned to the customs,
then drawback may be allowed in respect of those goods as if the goods had actually been exported or used as stores.
[Act No. 8 of 1991, s. 25.]

152.
Duties to apply proportionately for refund, rebate, etc.
Where duty is imposed, or remission, rebate or drawback thereof is allowed, under the provisions of this Act on goods according to a specified weight, measure, number or quantity, then the duty, or remission, rebate or drawback, shall be deemed to apply in the same proportion to any greater or less weight, measure, number or quantity, as the case may be, unless specific provision is made to the contrary under this Act:
Provided that in computing the duty imposed on, or any remission or rebate, allowable on, beer, fractions of a litre shall be disregarded.

153.
Refund of excise duty on compounded spirits in bonded warehouses
(1) Where compounded spirits have been deposited in a bonded warehouse, the amount of any refund of excise duty payable on the deposit shall be calculated by reference to the quantity of the spirits computed at proof and shall be an amount equal to the excise duty at the appropriate rate chargeable on the same quantity of spirits at the time when excise duty was paid or secured on the spirits from which the compounded spirits were compounded.
(2) Compounded spirits warehoused under section 104 shall upon delivery from a bonded warehouse for home use be chargeable with excise duty at the rate in force at the time of delivery.

153A.
Penalty for fraudulent claims
(1) Any person who makes a fraudulent claim for refund or rebate of duty shall be guilty of an offence and liable to pay a penalty of an amount equal to two times the amount of the claim.
(2) The penalty under this section shall not be part of the fine imposed by a court in a trial for fraudulent claims under this Act.
[Act No. 10 of 2006, s. 3.]

Miscellaneous Provisions
154.
Derelict goods, etc., liable to duty
Goods brought or coming into Kenya by sea otherwise than as cargo, stores or baggage carried in a vessel shall be liable to duty and to the provisions of this Act as if they were goods imported in the normal manner; and, if a question arises as to the origin of the goods, they shall be deemed to be the produce of such country as the Commissioner may on investigation determine.
[Act No. 8 of 1991, s. 26.]

155.
Goods imported duty free liable to certain duties on disposal
(1) Where goods liable to duty have been imported or purchased prior to entry for home use by or on behalf of a person either free of duty or at a reduced rate of duty, and the goods are subsequently disposed of in a manner inconsistent with the purpose for which they were granted relief from duty, then, unless the Minister otherwise directs, the goods shall on disposal be liable to duty at the rate applicable to goods of that class or description at the time of disposal:
Provided that this subsection shall not apply where that person dies and the ownership of such goods is transferred by way of bequest to or inheritance by another person.
(2) Where it is proposed to dispose of goods to which subsection (1) applies, then the person responsible for the disposal of the goods shall, unless the Minister otherwise directs, furnish the Commissioner with the particulars of the proposed disposal and shall cause the duty thereon to be paid.
(3) Subject to this section, where any goods to which subsection (1) applies are possessed by any person in satisfaction of any claim due from the importer or purchaser, that person shall be liable to pay the duty levied on the goods as if it were duty due and payable by that person but nothing in this subsection shall absolve the importer or purchaser from payment of the duty on the goods.
(4) Where goods to which subsection (1) applies are disposed of without the payment of the duty to which they are liable, then they shall be liable to forfeiture.
(5) A person who knowingly disposes of or knowingly acquires goods to which subsection (1) applies without the duty thereon having been paid in accordance with the provisions of this section shall be guilty of an offence.
[Act No. 8 of 1991, s. 27, Act No. 6 of 1994, s. 7.]

156.
Excisable goods granted remission, etc., liable to duty on
disposal
(1) Subject to the provisions of this Act, where excisable goods in respect of which remission, rebate or refund of duty has been granted are subsequently disposed of in a manner inconsistent with the purpose for which the remission, rebate or refund was granted, then, unless the Minister otherwise directs, the excisable goods shall thereupon be liable to the duty which would have been paid thereon if the remission, rebate or refund had not been granted.
(2) Where a person in possession of excisable goods in respect of which remission, rebate or refund of duty has been granted for any purpose proposes to dispose of the goods for a purpose inconsistent with the purpose for which the remission, rebate or refund was granted, then he shall, unless the Minister otherwise directs, furnish the Commissioner with the particulars of the proposed disposal and shall pay the duty thereon.
(3) Where excisable goods to which subsection (1) applies are sold or otherwise disposed of without payment of the duty to which they are liable, then the goods shall be liable to forfeiture.
(4) A person who knowingly disposes of, or knowingly acquires, excisable goods to which subsection (1) applies without the duty thereon having been paid in accordance with the provisions of this section, shall be guilty of an offence.

157.
Excisable goods liable to duty on re-importation
Subject to the provisions of this Act, where remission, rebate or refund of duty has been granted in respect of excisable goods which have been exported or shipped for use as stores for an aircraft or vessel and the excisable goods are subsequently unloaded in Kenya for home use, then the excisable goods shall be liable to duty at the rate in force at the time of unloading.

158.
Short levy or erroneous refund
(1) Where duty has been short levied or erroneously refunded, then the person who should have paid the amount short levied or to whom the refund has erroneously been made shall, on demand by the proper officer, pay the amount short levied or repay the amount erroneously refunded, as the case may be; and any such amount may be recovered as if it were duty to which the goods in relation to which the amount was so short levied or erroneously refunded, as the case may be, were liable:
Provided that the proper officer shall not make any such demand after five years from the date of the short levy or erroneous refund unless the short levy or erroneous refund had been caused by fraud on the part of the person who should have paid the amount short levied or to whom the refund was erroneously made.
(2) Where, on demand, a person who should have paid amount short levied or to whom the refund has been erroneously made fails to pay the amount short levied or to repay the amount erroneously refunded, then the Commissioner may order that any other entries or other documents by that person or his agent shall not be accepted by the customs, or may revoke or suspend that person’s licence until the duty short levied or erroneously refunded been paid or repaid.
[Act No. 14 of 1982, s. 5.]

158A.
Duties not to be abated on conviction
Notwithstanding anything contained in this Act, the amount of duty or penalty payable under this Act shall not be abated by reason only of the conviction of the person liable for the payment thereof for an offence under this Act.
[Act No. 8 of 1989, s. 4.]

158B.
Commissioner may refrain from recovering duty in certain
cases
(1) Notwithstanding the provisions of this Act, in any case where the Commissioner is of the opinion that he should refrain from recovery of duty or penalty or both, from any person by reason of impossibility or undue difficulty or the expense of the recovery of the duty or penalty or both, or due to any other reasonable cause, the Commissioner may refrain from recovery of the duty or penalty or both and thereupon liability to the duty or penalty or both shall be deemed to be extinguished and shall make quarterly returns to the Minister of all the amounts of duties or penalties not recovered pursuant to this subsection:
Provided that in any case where the amount of duty or penalty exceeds five hundred thousand shillings, the Commissioner shall first seek the prior written approval of the Minister.
(2) Where the Commissioner has decided to refrain from recovering duty or penalty or both under subsection (1), he shall report that decision in writing to the Minister as soon as possible after the 30th June next following his decision.
(3) Where a case has been referred to him, and where he considers it appropriate, the Minister may, in writing, direct the Commissioner to—
(a) take such action under this section as the Minister may deem fit; or
(b) obtain the direction of the court upon the case.
[Act No. 9 of 1992, s. 13, Act No. 8 of 1997, s. 8, Act No. 9 of 2000, s. 13.]


158C.
Amnesty for penalties, fines, etc.
Notwithstanding any other provision of this Act, the Commissioner shall refrain from recovering any penalty, or fine on any goods imported into the country before the 11th June, 2004 for excisable goods manufactured and sold in the country before the 30th April, 2004, where—
(a) the duties are paid; and
(b) all returns or amended returns, which should have been submitted in respect of the goods, are submitted,
on or before 31st December, 2004:
Provided that this section shall not apply in respect of duty if the person who should have paid the duty—
(i) has been assessed in respect of the duty or any matter relating to the duty; or
(ii) is under audit or investigation in respect of the duty or any matter relating to the duty. [Act No. 4 of 2004, s. 17.]

159.
Disputes
(1) If, before the delivery of imported or excisable goods from customs control, a dispute arises as to whether any or what duty is payable on those goods, the importer or excise licensee shall pay the amount demanded by the proper officer but may, not later than six months after the date of payment, file a suit in court for the determination of the matter in dispute:
Provided that for the purposes of this section, locally manufactured excisable goods delivered prior to payment of duty under sections 134 and 137 shall be deemed to be under customs control until duties are paid in full.
(2) If in a suit referred to in subsection (1) the court determines that a lesser or no amount was properly payable in respect of duty on the goods, the amount overpaid shall be repaid by the Commissioner.
(3) Where a dispute arises as to the amount of drawback payable in respect of goods, the exporter shall receive the amount of drawback allowed by the proper officer but may, not later than six months after the date of the receipt of the drawback, file a suit in court for the determination of the matter in dispute.
(4) If in a suit referred to in subsection (3) the court determines that a greater amount was properly payable in respect of drawback, the amount underpaid shall be paid by the Commissioner.
(5) Where the court determines that a lesser or no amount was properly payable in respect of duty, or a greater amount was properly payable in respect of drawback, no officer who has acted in good faith shall be liable to legal proceedings arising out of his determination of the amount payable in respect of duty or in respect of drawback.
[Act No. 8 of 1991, s. 28.]

159A.
Use of information technology
(1) Subject to such conditions as the Commissioner may prescribe, excise duty formalities or procedures under this Act may be carried out by use of information technology.
(2) For the purposes of subsection (1), the Commissioner may, by notice in the Gazette, specify—
(a) the excise duty formalities and procedures which may be carried out by use of information technology; and
(b) the persons authorised to carry out such formalities or procedures by use of information technology.
[Act No. 10 of 2010, s. 10.]


159B.
Registration of users
(1) No person shall access, transmit to, or receive information from a tax computerized system unless the person is registered as a user of such system under this section.
(2) A person seeking registration under this section shall apply to the Commissioner.
(3) The Commissioner shall consider every application under subsection (2) and may, if satisfied that the applicant meets the prescribed requirements, register the applicant as a user of a tax computerized system.
[Act No. 10 of 2010, s. 10.]

159C.
Cancellation of registration
Where, at any time, the Commissioner is satisfied that a person who is registered as a user of a tax computerized system under section 159B—
(a) has failed to comply with any of the conditions imposed by the Commissioner under that section; or
(b) has failed to comply with, or has acted in contravention of, any prescribed requirements; or
(c) has been convicted of an offence under this Act relating to improper access to or interference with a tax computerized system,
the Commissioner may cancel the registration of the user.
[Act No. 10 of 2010, s. 10.]

159D.
Unauthorized use of tax computerized system
(1) A person commits an offence if the person—
(a) knowingly and without lawful authority, by any means gains access to or attempts to gain access to any tax computerized system; or
(b) having lawful access to any tax computerized system, knowingly uses or discloses information obtained from such system for a purpose which is not authorized; or
(c) knowing that he is not authorized to do so, receives information obtained from any tax computerized system, and uses, discloses, publishes, or otherwise disseminates such information.

(2) A person who commits an offence under subsection (1) shall be liable, on conviction—
(a) in the case of an individual, to a fine not exceeding four hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both; or
(b) in the case of a body corporate, to a fine not exceeding one million shillings.
[Act No. 10 of 2010, s. 10.]


159
E. Offences
A person commits an offence if the person knowingly—
(a) falsifies any record or information stored in any tax computerized system; or
(b) damages or impairs any tax computerized system; or
(c) damages or impairs any duplicate tape or disc or other medium on which any information emanating from a tax computerized system is held or stored, otherwise than with the permission of the Commissioner,
and shall be liable, on conviction, to a fine not exceeding eight hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.
[Act No. 10 of 2010, s. 10.]
PART XII – PROVISIONS RELATING TO SECURITIES
160.
Commissioner may require security
(1) The Commissioner may require a person to give security for the due compliance by that person with this Act and generally for the protection of the customs and excise revenue; and, pending the giving of security in relation to goods subject to customs control, the Commissioner may refuse to permit delivery or exportation of the goods or to pass any entry in relation thereto or to issue an excise licence.
(2) For the purposes of subsection (1)“customs and excise revenue” includes a cess, levy, imposition, tax or surtax imposed on goods under any written law.
[Act No. 13 of 1984, s. 6.]

161.
General provisions relating to giving of security
(1) Where security is required to be given under this Act, then the security may be given to the satisfaction of the Commissioner either—
(a) by bond, in such sum and subject to such conditions and with such sureties as the Commissioner may reasonably require; or
(b) by cash deposit; or
(c) partly by bond and partly by cash deposit.

(2) Where security is required to be given under this Act for any particular purpose, then the security may, with the approval of the Commissioner, be given to cover any other transactions which the person giving the security may enter into within such period as the Commissioner may approve.
(3) All bonds required to be given under this Act shall be so framed that the person giving the bond, and any surety thereto, is bound to the Commissioner of Customs and Excise by that name for the due performance of the conditions of the bond; and all bonds may, unless sooner discharged by the due performance of the conditions thereof, be discharged by the Commissioner on the expiration of three years from the date thereof, but without prejudice to the right to the Commissioner to require fresh security.
(4) Where a bond given under this Act is discharged, then the Commissioner shall cause the bond to be cancelled and an endorsement to that effect made thereon.
(5) A bond given under this Act shall, notwithstanding that the bond or any surety thereto is given by a person under the age of eighteen years, be valid and enforceable as if it were so given by a person of full age.

162.
Provisions relating to sureties
(1) Without prejudice to the rights of a surety to a bond given under this Act against the person for whom he is surety, a surety shall for all the purposes of a bond be deemed to be the principal debtor and accordingly the surety shall not be discharged, nor his liability affected, by the giving of time for payment, or by the omission to enforce the bond for a breach of any conditions thereof, or by any other act or omission which would not have discharged the bond if he had been the principal debtor.
(2) If a person being a surety—
(a) dies; or
(b) becomes a bankrupt or enters into an arrangement or composition with, or for the benefit of, his creditors; or
(c) departs from Kenya without leaving sufficient property therein to satisfy the whole amount of the bond,
the Commissioner may require the person giving the bond to enter into fresh security.

163.
Enforcement of bond
(1) Where the conditions of a bond have not been complied with then the Commissioner may by notice in writing forthwith require the person who has given security under it to pay to the Commissioner the amount of the security within fourteen days’ of the notice; and on failure to comply with the notice, the Commissioner may enforce payment of the security as though it were duty due and unpaid.
(2) A person against whom the Commissioner has enforced payment of a security under subsection (1) may, if aggrieved by such enforcement, file a suit in court for determination of the matter, within six months of the enforcement:
Provided that prior to filing the suit, such person shall deposit with the Commissioner the whole amount of duty demanded.
(3) Nothing in this section shall, unless the Commissioner otherwise allows, absolve the person who has given security under section 160 from the obligations entered into by him under this Act or under any other law.
[Act No. 8 of 1983, s. 4, Act No. 8 of 1997, s. 9, Act No. 5 of 1998, s. 10.]

PART XIII – CUSTOMS AND EXCISE AGENTS
164.
Authority of agents
(1) Where under the provisions of this Act the owner of goods is required or authorized to perform any act, then that act, unless the contrary appears, may be performed on his behalf by an authorized agent.
(2) A person shall not be the duly authorized agent of an owner unless—
(a) the person is exclusively in the employment of the owner; or
(b) the person is a customs or excise agent duly licensed as such in accordance with any regulations,
and, in either case the person is authorized in writing by the owner, either generally or in relation to a particular act, to perform the act on behalf of the owner.

(3) The proper officer may require from a person purporting to be the duly authorized agent of an owner the production of his written authority and in default of the production of that authority the proper officer may refuse to recognise the person as a duly authorised agent.
[Act No. 10 of 1990, s. 7.]

165.
Liability of duly authorised agent
A duly authorized agent who performs an act on behalf of the owner of any goods shall, for the purposes of this Act, be deemed to be the owner of the goods and shall accordingly be personally liable for the payment of any duties to which the goods are liable and for the performance of all acts in respect of the goods which the owner thereof is required to perform under this Act; but nothing herein contained shall relieve the owner of the goods from that liability.

166.
Liability of owner for acts of duly authorised agent
An owner of goods, who authorizes an agent to act for him in relation to those goods for any of the purposes of this Act shall be liable for the acts and declarations of the duly authorized agent and may accordingly be prosecuted for an offence committed by the agent in relation to the goods as if the owner had himself committed the offence:
Provided that—
(i) an owner shall not be sentenced to imprisonment for an offence committed by his duly authorized agent unless the owner actually consented to the commission of the offence;
(ii) nothing herein contained shall relieve the duly authorized agent from liability to prosecution in respect of the offence.

166A.
Agents appointed by the Commissioner
(1) The Commissioner may, by written notice addressed to any person (in this subsection called the agent), appoint him to be the agent of another person (in this subsection called the principal) for the purposes of collecting duty due under this Act from the principal where the Commissioner is satisfied that the agent—
(a) owes or is about to pay money to the principal;
(b) holds money for or on account of the principal;
(c) holds money on account of some other person for payment to the principal;
(d) has authority from some other person to pay money to the principal;
(e) holds goods belonging to the principal which are liable to duty and on which duty has not been paid,
and shall in the notice specify the amount of duty to be collected by the agent, which amount shall not exceed the amount, or value of the goods, held or owing by the agent for or to the principal.

(2) The Commissioner may, by notice in writing, require any person to furnish him within a reasonable time, not being less than thirty days from the date of service of the notice, with a return showing details of any moneys or goods which may be held by that person for, or owing by him to, another person from whom duty is due under this Act.
(3) Section 165 shall apply to an agent appointed under subsection (1) as though he was a duly authorized agent acting on behalf of the owner.
(4) An agent who is appointed under subsection (1) and who claims to be, or to have become unable to comply with the notice for any reason whatsoever shall, within seven working days, notify the Commissioner accordingly in writing stating the reasons for his inability, and the Commissioner may accept and cancel, amend or reject the notification as he may think fit.
(5) Notwithstanding subsection (4), an agent shall be presumed to be holding sufficient money for the payment of the duty specified in the notice unless his notification under subsection (4) is accepted or amended, and in any proceedings for the collection of that duty he shall be stopped from asserting the lack of those moneys.
(6) Where an agent fails to remit any amount of duty specified in the notice addressed to him within thirty days of the date of service of the notice on him, or, of the date on which any moneys came into his hands for or become due by him to, his principal, whichever is the later and he has not complied with subsection (4) then, the provisions of this Act relating to the collection and recovery of duty shall apply as if it were duty due and payable by him from the date when such duty should have been paid to the Commissioner.
(7) An agent who has made payment of duty under this section shall for all purposes be deemed to have acted therein with the authority of his principal and of all other persons concerned, and shall be indemnified in respect of that payment against any proceedings civil or criminal and all process, judicial or extra judicial, notwithstanding any provisions to the contrary in any written law, contract or agreement.
(8) A person who, in giving a notification under subsection (4), wilfully makes any false or misleading statement, or wilfully conceals any material fact, shall be guilty of an offence and liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term of not more than three years or to both.
[Act No. 14 of 1982, s. 7, L.N. 152/1985, s. 2, Act No. 6 of 1994, s. 8, Act No. 6 of 2005, s. 2.]

166B.
Commissioner may appoint agent
The Commissioner may, by notice in the Gazette, appoint an agent to perform such of his functions under this Act as he may specify in the notice, subject to such terms and conditions as may be agreed between the Commissioner and such agent.
[Act No. 4 of 1999, s. 12.]

166C.
Preservation of funds
(1) Where the Commissioner has reasonable cause to believe that a person—
(a) has manufactured excisable goods on which tax has not been charged; or
(b) has collected duty which has not been accounted for; and
(c) is likely to frustrate the recovery of duty if information of the Commissioner’s suspicion under this subsection is disclosed to him,
the Commissioner may make an ex parte application to the High Court, in this section referred to as “the Court”, and the Court may issue an order to any person or institution holding funds belonging to the person, prohibiting the transfer, withdrawal or disposal of, or any other transaction involving such funds.

(2) An order under subsection (1) shall have effect for 30 days and may be extended by the Court on application by the Commissioner.
(3) A person whose funds are the subject of an order under this section may, within 15 days of being served with the order, apply to the Court to discharge or vary the order or dismiss the application.
(4) Where the Court has issued an order under this section, the Commissioner shall, within a period of 30 days of the order, determine the excise duty due and payable, issue a notice of assessment and commence recovery of such duty in accordance with the provisions of this Act.
(5) Upon issuance of a notice of assessment under subsection (4), the order shall automatically expire unless extended by the Court upon application by the Commissioner.
(6) A person served with an order under this section who, in any way, interferes with the funds to which it relates commits an offence.
(7) A person who preserves funds or any account pursuant to a Court order under this section, shall for all purposes, be deemed to have acted within the authority thereof and such person and all other persons concerned shall be indemnified in respect of the actions taken in connection therewith, against all proceedings, civil or criminal and all process, judicial or extrajudicial, notwithstanding any provisions to the contrary in any written law, contract or agreement.
[Act No. 9 of 2007, s. 5.]

PART XIV – PREVENTION OF SMUGGLING AND EVASION
167.
Power to require vessels, etc. to bring to
(1) The master of a vessel within Kenya shall bring his vessel to for boarding on being signalled so to do by a vessel in the service of the customs and flying the customs flag or the Kenya national flag.
(2) The master of an aircraft within or over Kenya, shall land the aircraft on being signalled so to do by any person in the service of the customs or the Government.
(3) The master of an aircraft which has landed, or of a vessel bringing to for boarding, shall facilitate by all reasonable means the boarding of the aircraft or vessel by the proper officer, and shall cause the aircraft or vessel to remain stationary for such period as the proper officer may require.
(4) A master of an aircraft or vessel who contravenes this section shall be guilty of an offence and liable—
(a) in the case of the master of a vessel of less than two hundred and fifty tons register, to a fine not exceeding three hundred thousand shillings; and the vessel in respect of which the offence has been committed shall be liable to forfeiture;
(b) in the case of the master of an aircraft, or of a vessel of two hundred and fifty tons register or more, to a fine of such amount as the court deems just; and the aircraft or vessel in respect of which the offence has been committed may be seized and detained until the fine is paid or security therefor given.
[Act No. 13 of 1995, s. 38, Act No. 6 of 2001, s. 11.]


168.
Power to require vessel, etc., to depart
(1) The master of an aircraft or vessel within or over Kenya shall on being required so to do by the proper officer, depart from Kenya within twelve hours of the requirement:
Provided that this subsection shall not apply in the case of an aircraft or vessel which is registered in Kenya.
(2) A master of an aircraft or vessel who contravenes subsection (1) shall, unless prevented from complying with that subsection by circumstances beyond his control, the proof whereof shall lie on the master, be guilty of an offence and liable—
(a) in the case of the master of a vessel of less than two hundred and fifty tons register, to a fine not exceeding one hundred thousand shillings; and the vessel in respect of which the offence has been committed shall be liable to forfeiture;
(b) in the case of the master of an aircraft, or of a vessel of two hundred and fifty tons register or more, to a fine of such amount as the court deems just; and the aircraft or vessel in respect of which the offence has been committed may be seized and detained until the fine is paid or security therefore given.
[Act No. 13 of 1995, s. 39.]


169.
Power to patrol freely and moor vessels, etc.
(1) An officer while on duty may enter upon and patrol and pass freely along any premises, other than a dwelling-house or a building.
(2) An officer in charge of an aircraft, vessel or vehicle employed in the prevention of smuggling or evasion of the provisions of this Act, may take the aircraft, vessel or vehicle to such place as he may consider most convenient for that purpose, and may there keep the aircraft, vessel or vehicle for such time as he may consider necessary for that purpose.
(3) No officer shall be liable to legal proceedings for any action taken in good faith in accordance with this section.

170.
Power to board vessel, etc., and search
(1) An officer may, in the course of his duty, stop, board and search an aircraft, vessel or vehicle within Kenya and may examine, lock up, seal, mark or otherwise secure any goods on the aircraft, vessel or vehicle, and for the purposes of the examination or security of any goods, the officer may require the goods to be unloaded or removed, at the expense of the master of the aircraft or vessel, or the person in charge of the vehicle.
(2) An officer acting under this section who is unable to obtain free access to any part of the aircraft, vessel or vehicle or to any container therein, may enter that part or open that container in such manner, if necessary by force, as he may think necessary.
(3) An officer boarding an aircraft or vessel under this section may remain thereon for such time as he may consider necessary and the master of the aircraft or vessel shall either provide the officer with proper and sufficient food and suitable bedding accommodation or, with the approval of the proper officer and subject to such conditions as he may impose, pay such sum as may be prescribed in lieu thereof; and a master who contravenes this subsection, or of any such conditions, shall be guilty of an offence and liable to a fine not exceeding sixty thousand shillings.
(4) A master of an aircraft or vessel, or the owner or a person in charge of a vehicle—
(a) who refuses to stop or to permit the aircraft, vessel or vehicle to be searched in accordance with this section; or
(b) in which goods which have been locked up, sealed, marked or otherwise secured in accordance with this section are in any way interfered with except in accordance with the permission of the proper officer; or
(c) in which a lock, seal or mark placed on any place or goods in accordance with this section is in any way opened, broken or altered,
shall be guilty of an offence.

(5) Where, on the search of an aircraft, vessel or vehicle under this section, goods are found in relation to which an offence under this Act has been committed, then the master of the aircraft or vessel or the owner or the person in charge of the vehicle, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million five hundred thousand shillings or to both; and the goods shall be liable to forfeiture.
(6) No officer shall be liable to legal proceedings for any action taken in good faith in accordance with this section.
(7) Where, on an aircraft, vessel or vehicle being boarded under this section, goods are found therein and on the aircraft, vessel or vehicle being subsequently boarded, whether by the same or another officer, those goods or any part thereof are no longer therein, then, unless the master of the aircraft or vessel, or the person in charge of the vehicle accounts for the goods to the satisfaction of the proper officer, the master or person shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million five hundred thousand shillings or to both.
[Act No. 10 of 1988, s. 13, Act No. 13 of 1995, s. 40, Act No. 6 of 2001, s. 12.]

171.
Persons entering or leaving Kenya to answer questions concerning
baggage
A person entering or leaving Kenya shall answer questions which the proper officer may put to him with respect to his baggage and any article contained therein or carried with him.

172.
Power to search persons
(1) Subject to this section, an officer may, if he has reasonable grounds to believe that a person has in his possession, whether upon his person or in his baggage, uncustomed goods or excisable goods in relation to which an offence under this Act has been committed, search that person; and the officer may, for that purpose, use all reasonable force.
(2) A female shall not be searched except by a female.
(3) Where an officer informs a person that he proposes to search him, then that person shall, if he so requires, be taken forthwith before a magistrate, the Commissioner or any other superior officer, who may, if he sees no reasonable cause for the search, order that person not to be searched.
(4) Where, on the search of a person under this section, goods are found in his possession, whether upon his person or in his baggage, in relation to which an offence under this Act has been committed, then the goods shall be liable to forfeiture.
(5) No officer shall be liable to legal proceedings for any action taken in good faith in accordance with this section.

173.
Power of arrest
(1) An officer may, if he has reasonable grounds to believe that a person is committing, or has within the past year committed or been concerned in the commission of, an offence under this Act, arrest that person; and the officer may for that purpose use all reasonable force.
(2) A person arrested in accordance with this section shall forthwith be taken before a magistrate, or to a police station, to be dealt with according to law.
(3) No officer shall be liable to legal proceedings for any action taken in good faith in accordance with this section.
(4) Without prejudice to the powers of a police officer to arrest any person for an offence under this Act which is cognizable to the police under any other law, for the purposes of this section the expression “officer” includes a police officer.

174.
Power to search premises
(1) A proper officer may in the course of his duty or if he has reasonable grounds to believe that there are on any premises uncustomed goods or documents relating to uncustomed goods, or plant utilized for the manufacture of excisable goods contrary to this Act, enter upon and search those premises by day or by night, and for that purpose the proper officer may use all reasonable force and may require the assistance of, and take with him, another officer or a police officer and such assistance shall be given.
(2) Where a proper officer enters upon any premises in accordance with this section then—
(a) he may require the owner or occupier of the premises to produce, either forthwith or at a time and place to be fixed by the proper officer, any book, document or thing which the owner or occupier is required to keep under the provisions of this Act or which relates to any imported or exported goods, or to any goods to be imported or exported by the owner or occupier;
(b) he may examine and take copies of any such book or document;
(c) he may seize and detain any such book, document or thing if in his opinion it may afford evidence of the commission of an offence under this Act;
(d) he may require the owner or occupier to answer questions relating to any such book, document or thing, or to any entry in the book or document;
(e) he may require any container, envelope or other receptacle in the premises to be opened;
(f) he may, at the risk and expense of the licensee, owner or occupier, open and examine any package or any goods or materials in the premises;
(g) he may take and retain without payment such reasonable samples of any goods or materials as he may think necessary for the performance of his duties.

(3) Where, on the search of premises under this section, uncustomed goods, or documents relating to uncustomed goods, are found, the proper officer may seize and carry away those goods or documents.
(4) Where, on the search of premises under this section, plant or excisable goods, or materials, are found in relation to which an offence under this Act has been committed, then the plant, goods and materials shall be liable to forfeiture.
(5) No officer shall be liable to legal proceedings for any action taken in good faith in accordance with this section.
[Act No. 8 of 1991, s. 29.]

175.
Power to seal, etc., buildings, etc.
(1) An officer may, in the course of his duty, lock up, seal, mark or otherwise secure—
(a) any building, room, place, receptacle or item of plant;
(b) any excisable goods or materials in a factory;
(c) aircraft, vessels, vehicles or containers.

(2) A person who, except by authority, opens, breaks, alters or in any way interferes with a lock, seal, mark or other fastening placed by an officer in accordance with the provisions of this section on any building, room, place, receptacle, item of plant, excisable goods, or materials, shall be guilty of an offence.
[Act No. 6 of 1994, s. 9.]

176.
Search warrants
(1) Without prejudice to any other power under this Act, where an officer declares on oath before a magistrate that he has reasonable grounds to believe that there are in any premises—
(a) uncustomed goods or documents relating to uncustomed goods; or
(b) plant which has been utilized for, or materials used in, the manufacture of excisable goods contrary to this Act,
then the magistrate may by warrant under his hand authorize the officer to enter upon and search, with such force as may be necessary and by day or by night, the premises and to seize and carry away any uncustomed goods, plant or documents relating to uncustomed goods found therein.

(2) An officer in possession of a search warrant may require a police officer to assist him in the execution of the warrant and a police officer so required shall render assistance accordingly.

177.
Power to require production of books, etc.
(1) Where—
(a) information has been given to the proper officer that goods have been, or are intended to be, smuggled, undervalued or dealt with contrary to this Act; or
(b) any thing or goods have been seized under this Act,
then the proper officer may require the owner of the goods or thing forthwith to produce all books and documents, whether in written form or in micro-film, magnetic tape or any other form of mechanical or electronic data retrieval mechanism relating in any way thereto, or to any other goods imported, exported, carried coastwise, manufactured, purchased, sold or offered for sale by that owner within a period of five years immediately preceding the requirement.

(2) On production of the books or documents the proper officer may inspect and take copies of any entries therein; and the proper officer may seize and detain any such book or document if in his opinion it may afford evidence of the commission of an offence under this Act.
[Act No. 6 of 1981, s. 2, Act No. 7 of 2002, s. 14.]

178.
Power to call for aid
A person making a seizure or arrest in accordance with the provisions of this Act may call upon any other person to assist him, and assistance shall be rendered accordingly.
Offences
179.
Assembling to contravene provisions of Act
A person who—
(a) assembles with two or more persons for the purpose of contravening any of the provisions of this Act; or
(b) having so assembled, contravenes any of the provisions of this Act,
shall be guilty of an offence and liable to imprisonment for a term not exceeding five years.

180.
Offences with violence, etc.
(1) A person who—
(a) maliciously shoots at an aircraft, vessel or vehicle in the service of the customs;
(b) maliciously shoots at, maims or wounds an officer while in the execution of his duty; or
(c) commits with violence any of the offences referred to in subsection (4),
shall be guilty of an offence and liable to imprisonment for a term not exceeding twenty years.

(2) A person who—
(a) while committing an offence under this Act is armed with a firearm or other offensive weapon; or
(b) while being so armed, is found with goods liable to forfeiture under this Act,
shall be guilty of an offence and liable to imprisonment for a term not exceeding ten years.

(3) A person who—
(a) while committing an offence under this Act is disguised in any way; or
(b) while being so disguised, is found with goods liable to forfeiture under this Act,
shall be guilty of an offence and liable to imprisonment for a term not exceeding three years.

(4) A person who—
(a) staves, breaks, destroys or throws overboard from an aircraft, vessel or vehicle any goods for the purpose of preventing the seizure thereof; or
(b) rescues, staves, breaks, destroys or throws overboard from an aircraft, vessel or vehicle any goods for the purpose of preventing the securing of those goods after they have been seized; or
(c) rescues a person arrested for any offence under this Act; or
(d) in any way obstructs an officer in the execution of his duty,
shall be guilty of an offence.

(5) For the purposes of this section “violence” means any criminal force or harm to a person, or any criminal mischief to property, or any threat or offer of that force,harm or mischief, or the carrying or use of any dangerous or offensive weapon so that terror is likely to be caused to any person, or conduct as is likely to cause in any person a reasonable apprehension of criminal force, harm or mischief, to him or to his property.

181.
Attempts to commit offences
A person who attempts to commit an offence under this Act shall be guilty of an offence and liable to be punished as though he had actually committed the offence.

182.
Offence to warn offender
(1) A person who, with intent to obstruct an officer in the execution of his duty, warns, or does any action for the purpose of warning, another person engage in the commission of an offence under this Act, whether or not that other person is in a position to take advantage of the warning or act, shall be guilty of an offence and liable to imprisonment for a term not exceeding six years or to a fine not exceeding six hundred thousand shillings or to both.
(2) Where a person is charged with an offence under this section, the burden of proving that anything done by him was not done with that intent shall be upon that person.
(3) A person may prevent another person from giving any such warning and for that purpose may enter upon any land and shall not thereby be liable to legal proceedings.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 41, Act No. 6 of 2001, s. 13.]

183.
Offence to assume character of officer
A person, not being an officer, who takes or assumes the name, designation, character or appearance of an officer for the purpose of—
(a) obtaining admission to an aircraft, vessel, vehicle, premises or place; or
(b) doing or procuring to be done an act which he would not be entitled to do or procure to be done on his own authority; or
(c) doing any unlawful act,
shall be guilty of an offence and liable to imprisonment for a term not exceeding three years in addition to any other punishment to which he may be liable for the commission of the unlawful act.

184.
Master of vessel, etc., used for smuggling or evasion guilty
of offence
A master of an aircraft or vessel, and a person in charge of a vehicle, which is within Kenya and—
(a) which has a secret or disguised place adapted for concealing goods, or a device adapted for smuggling goods; or
(b) which has in it, or in any manner attached to it, or which is conveying, or has conveyed in any manner goods imported, carried coastwise or intended for exportation contrary to this Act; or
(c) from or in which any part of the cargo of the aircraft, vessel or vehicle has been thrown overboard, broken, rescued, destroyed or staved in order to prevent seizure,
shall be guilty of an offence and liable—
(i) in the case of the master of a vessel of less than two hundred and fifty tons register, to a fine not exceeding three hundred thousand shillings; and any vessel and goods in respect of which the offence has been committed shall be liable to forfeiture;
(ii) in the case of the master of an aircraft, or of a vessel of two hundred and fifty tons register or more, to a fine of such amount as the court deems just; and the aircraft or vessel in respect of which the offence has been committed may be seized and detained until the fine is paid or security therefore given, and any goods in respect of which the offence has been committed shall be liable to forfeiture;
(iii) in the case of the person in charge of a vehicle, to a fine not exceeding one million five hundred thousand shillings; and the vehicle and goods in respect of which the offence has been committed shall be liable to forfeiture. [Act No. 13 of 1995, s. 42, Act No. 6 of 2001, s. 14.]


185.
Offence in respect of prohibited, restricted and uncustomed
goods
(1) A person who—
(a) imports or carries coastwise—
(i) prohibited goods, whether or not those goods are unloaded; or
(ii) restricted goods contrary to any conditions regulating the importation or carriage coastwise of those goods, whether or not those goods are unloaded;

(b) unloads after importation or carriage coastwise—
(i) prohibited goods; or
(ii) restricted goods which have been imported or carried coastwise contrary to any condition regulating their importation or carriage coastwise;

(c) exports, carries coastwise, or puts on board an aircraft, vessel or vehicle, or brings to a customs airport, customs area or place to be so put on board, for exportation or use as stores or carriage coastwise—
(i) prohibited goods; or
(ii) restricted goods contrary to any condition regulating the exportation or use as stores or carriage coastwise of those goods;

(d) acquires, has in his possession, keeps or conceals, or procures to be kept or concealed, goods which he knows, or ought reasonably to have known to be—
(i) prohibited goods; or
(ii) restricted goods which have been imported or carried coastwise contrary to any condition regulating their importation or carriage coastwise; or
(iii) uncustomed goods,
shall be guilty of an offence and liable to imprisonment for a term not exceeding five years or a fine equal to three times the amount of duty and any other taxes payable on the goods in respect of which the offence is committed subject to a maximum of one million five hundred thousand shillings or to both such fine and imprisonment.

(2) Any person who, being the owner of any premises, allows any person to use such premises for the storage or sale of unaccustomed goods, shall be guilty of an offence and liable to a fine not exceeding one million shillings.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 43, Act No. 5 of 1998, s. 11, Act No. 6 of 2001, s. 15.]

186.
Offence to import or export concealed goods
A person who imports or exports goods—
(a) which are concealed in any way; or
(b) which are packed in a package (whether or not together with other goods) in a manner likely to deceive an officer; or
(c) which are contained in a package of which the entry or application for shipment does not correspond with the goods,
shall be guilty of an offence.

187.
Offence to make or use false documents
A person who, in any matter relating to the customs—
(a) makes an entry which is false or incorrect in any particular;
(b) makes or causes to be made a declaration, certificate, application, return, estimate, account or other document which is false or incorrect in any particular;
(c) when required in accordance with this Act to answer any question put to him by an officer, refuses to answer the question or makes a false or incorrect statement in reply thereto;
(d) makes a false statement or false representation in order to obtain remission, rebate, drawback or refund of duty;
(e) obtains any drawback, rebate, remission or refund of duty which to his knowledge he is not entitled to obtain;
(f) in any way is knowingly concerned in a fraudulent evasion of the payment of duty;
(g) except by authority moves, alters or in any way interferes with any goods subject to customs control;
(h) brings into Kenya or has in his possession, without lawful excuse, any blank or incomplete invoice, bill head or other similar document capable of being filled up and used as an invoice for imported goods; or
(i) counterfeits or in any way falsifies, or knowingly uses when counterfeited or in any way falsified, any document required or issued by, or used for the purposes of, the customs,
shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million five hundred thousand shillings or to both.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 44, No. 6 of 2001, s. 16.]

188.
Offence to refuse to produce documents, etc.
A person who, when required in accordance with this Act—
(a) to produce a book, document or other thing in his possession or under his control; or
(b) to perform an act or make a return,
refuses or fails to do so shall be guilty of an offence.

189.
Offence to use false measures
A person who—
(a) uses, keeps or provides false or unjust scales, weighing or measuring instruments, weights or measures; or
(b) by any means prevents, or contrives to prevent, the proper officer from taking a just and true account of, or making proper examination of, any goods or materials,
shall be guilty of an offence; and any such scales, instruments weights, measures, goods and materials in respect of which the offence was committed shall be liable to forfeiture.

190.
Offence to interfere with customs property
A person who cuts away, casts adrift, destroys, damages, defaces or in any way interferes with an aircraft, vessel, vehicle, buoy, anchor, chain, rope, mark or other thing used for the purposes of the customs shall be guilty of an offence and liable to a fine not exceeding one hundred and twenty thousand shillings.
[Act No. 13 of 1995, s. 45, Act No. 6 of 2001, s. 17.]

191.
Offences in connection with excisable goods
(1) A person who—
(a) conceals in or, without the consent of the proper officer, removes from a distillery any wort, wash, low wines, feints or spirits;
(b) knowingly buys or receives any wort, wash, low wines, feints or spirits so concealed or removed;
(c) knowingly buys or, without proper authority, receives or has in his possession, any excisable goods which have been manufactured contrary to the provisions of this Act, or which have been removed from the place where they ought to have been charged with duty before the duty payable thereon has been charged and either paid or secured;
(d) without proper authority has in his possession any low wines or feints;
(e) without proper authority has in his possession any wort or wash fit for distillation; or
(f) having obtained any excisable goods in respect of which duty has been remitted for a particular purpose, fails to comply with any conditions imposed by the Commissioner concerning the use of those goods or uses those goods for a different purpose without the approval in writing of the proper officer,
shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding one million five hundred thousand shillings or to both.

(2) Any spirits and any still, vat, utensil, wort, wash or other materials for manufacturing spirits—
(a) found in the possession of a person who commits an offence under subsection (1); or
(b) found on premises on which such an offence has been committed,
shall be liable to forfeiture.

(3) Notwithstanding any other provisions of this Act relating to goods seized as liable to forfeiture, an officer by whom a thing is seized as liable to forfeiture under subsection (2) may forthwith spill, break up or destroy that thing.
[Act No. 10 of 1980, s. 2, Act No. 13 of 1995, s. 46, Act No. 6 of 2001, s. 18.]

192.
Uncustomed goods found to be reported
A person who, on finding uncustomed goods on land or floating upon or sunk in the sea, fails to report the discovery to the nearest officer shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings and any goods in respect of which the offence has been committed shall be liable to forfeiture.
[Act No. 13 of 1995, s. 47, Act No. 6 of 2001, s. 19.]

193.
Goods offered on pretence of being smuggled
Where goods are offered for sale under the pretence that they are uncustomed goods, then those goods, whether or not they are in fact uncustomed goods, shall be liable to forfeiture.

194.
Aiders, abettors, etc.
(1) A person who aids, abets, counsels or procures the commission of an offence under this Act or authorizes another person so to do shall be liable to be charged and, if convicted, punished as though he had actually committed the offence.
(2) Where an offence under this Act is committed by a body corporate, every person who at the time of the commission of the offence was a director, general manager, secretary or other similar officer of the body corporate, or was acting or purporting to act in that capacity, shall also be guilty of the offence unless he proves that the offence was committed without his consent or knowledge and that he exercised the due diligence to prevent the commission of the offence that he ought to have exercised having regard to the nature of his functions in that capacity and in all the circumstances.
[Act No. 7 of 2002, s. 15.]

194A.
Sale of adulterated petroleum products prohibited
(1) No person shall—
(a) mix, or cause to be mixed, any refined petroleum products; or
(b) possess or offer for sale, any mixture of refined petroleum products, or any refined petroleum product which does not meet the Kenya Standard declared under the Standards Act (Cap. 496).

(2) A person who contravenes the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both and the products in respect of which the offence is committed shall be liable to forfeiture.
[Act No. 9 of 2000, s. 14, Act No. 7 of 2002, s. 16, Act No. 4 of 2004, s. 18.]

PART XV – PENALTIES, FORFEITURES AND SEIZURES
195.
General penalty
(1) A person guilty of an offence under this Act for which no specific penalty is provided shall be liable to a fine not exceeding one million five hundred thousand shillings.
(2) Where, on conviction for an offence under this Act, a person becomes liable to a fine not exceeding a specified amount, then the court may impose a fine not exceeding three times the value of any goods in respect of which the offence was committed or the specified amount, whichever is the greater; and for the purpose of determining the value of those goods—
(a) the Commissioner shall cause the goods to be appraised by the proper officer;
(b) the proper officer shall appraise the goods according to the rate and price for which goods of the same kind but of the best quality upon which duties have been paid were sold at or about the time of the offence, or according to the rate and price for which goods of the same kind but of the best quality were sold in bond at or about the time of the offence with the duties thereon added to that rate or price in bond; and no regard shall be had to any damage or injury sustained by the goods;
(c) a certificate of the appraised value given under the hand of the Commissioner shall be prima facie evidence of the value of those goods.
[Act No. 13 of 1995, s. 48, Act No. 8 of 1997, s. 10, Act No. 6 of 2001, s. 20.]


196.
Goods liable to forfeiture
In addition to any other circumstances in which goods are liable to forfeiture under this Act, the following goods shall be liable to forfeiture—
(a) prohibited goods;
(b) restricted goods which are dealt with contrary to any condition regulating their importation, exportation or carriage coastwise;
(c) uncustomed goods;
(d) goods which are imported, exported or carried coastwise concealed in any manner, or packed in a package (whether with or without other goods) in a manner appearing to be intended to deceive an officer;
(e) goods which are imported, exported or carried coastwise contained in a package of which the entry, application for shipment or application to unload does not correspond with the goods;
(f) goods subject to customs control which are moved, altered or in any way interfered with, except with the authority of an officer;
(g) goods in respect of which, in any matter relating to the customs, an entry, declaration, certificate, application or other document, answer, statement or representation, which is knowingly false or knowingly incorrect in any particular has been delivered, made or produced;
(h) goods in respect of which drawback, rebate, remission or refund of duty has been unlawfully obtained.

197.
Vessels, etc., liable to forfeiture
(1) A vessel of less than two hundred and fifty tons register, and a vehicle, animal or other thing made use of in the importation, landing, removal, conveyance, carriage coastwise or exportation of goods or other things liable to forfeiture under this Act shall itself be liable to forfeiture.
(2) An aircraft, or a vessel of two hundred and fifty tons register or more made use of in the importation, landing, removal, conveyance, carriage coastwise or exportation of goods or other things liable to forfeiture under this Act shall not itself be liable to forfeiture but the master of the aircraft or vessel shall be guilty of an offence and liable to a fine of such amount as the court deems just; and the aircraft or vessel may be seized and detained until the fine is paid or security therefore given.
(3) Where an aircraft, vessel, vehicle, animal or other thing is liable to forfeiture under this Act, then the tackle, apparel, furniture and all other gear used in connection therewith shall also be liable to forfeiture therewith.

198.
Provisions relating to goods liable to forfeiture
(1) Where goods are liable to forfeiture under this Act, then the package in which the goods are, and all the contents of the package, shall also be liable to forfeiture therewith.
(2) Where goods which are prohibited goods or restricted goods have been shipped for importation without knowledge by the shipper of the prohibition or restriction and before, in the opinion of the Commissioner, the expiration of a reasonable time for that information to be available at the port of shipment, then, notwithstanding this Act, those goods shall not on importation be liable to forfeiture but shall be re-exported, or otherwise disposed of, as the Commissioner may determine; and pending re-exportation or disposal the goods shall be subject to customs control.

199.
Power to seize goods liable to forfeiture
(1) An officer or police officer may seize an aircraft, vessel, vehicle, goods, animal or other thing liable to forfeiture under this Act or which he has reasonable grounds to believe is liable to forfeiture; and any such aircraft, vessel, vehicle, goods, animal or other thing may be seized whether or not a prosecution for an offence under this Act which rendered it liable to forfeiture has been, or will be, taken.
(2) An aircraft, vessel, vehicle, goods, animal or other thing seized and detained under this Act shall be taken to a customs warehouse or to such other place of security as the proper officer may consider appropriate.
(3) The Commissioner may, at any time prior to the commencement of proceedings under this Act relating to an aircraft, vessel, vehicle, goods, animal or other thing which has been seized under this Act, release it and return it to the person from whom it was seized, if he is satisfied that it was not liable to seizure.
(4) No officer shall be liable to legal proceedings for any action taken in good faith in accordance with this section.

200.
Procedure on seizure
(1) Where a thing has been seized under this Act, then, unless the thing was seized in the presence of the owner thereof, or, in the case of an aircraft or vessel, of the master thereof, the officer effecting the seizure shall, within one month of the seizure, give notice in writing of the seizure and of the reasons therefore to the owner thereof or, in the case of an aircraft or vessel, to the master thereof:
Provided that—
(i) no notice of seizure shall be given where a person has, within the period of one month, been prosecuted for the offence by reason of which the thing has been seized, or the offence has been compounded under Part XVII, and if, after the notice has been given but before condemnation of the thing in accordance with this Act—
(ii) where the thing has been seized in the presence of a person coming within the definition of owner for the purposes of this Act, then it shall not be necessary for the officer effecting the seizure to give notice thereof to any other person coming within that definition;
(iii) a notice given to a person coming within the definition of owner shall be deemed to be notice to all other persons coming within that definition;
(iv) where no person coming within the definition of owner is known, then it shall not be necessary for the officer effecting the seizure to give notice thereof to any person.
(2) Where goods which are of a perishable nature or are animals are seized, the Commissioner may direct that the goods shall be sold forthwith, either by public auction or by Private treaty, and that the proceeds of sale shall be retained and dealt with as if they were the goods.
(3) Where anything liable to forfeiture under this Act has been seized, then—
(a) if a person is being prosecuted for the offence by reason of which the thing was seized, the thing shall be detained until the determination of such prosecution and dealt with in accordance with section 201;
(b) in any other case, the thing shall be detained until one month after the date of the seizure, or the date of a notice given under subsection (1), as the case may be; and if no claim is made therefore as provided in subsection (4) within the period of one month, the thing shall thereupon be deemed to be condemned.

(4) Where anything liable to forfeiture under this Act has been seized, then, subject to proviso (i) to subsection (1) and to subsection (3)(a), the owner thereof may, within one month of the date of the seizure or the date of a notice given under subsection (1), as the case may be, by notice in writing to the Commissioner claim the thing.
(5) Where a notice of claim has been given in accordance with subsection (4), then the thing seized shall be detained by the Commissioner to be dealt with in accordance with this Act:
Provided that the Commissioner may permit the thing to be delivered to the person making the claim (hereinafter in this Part referred to as the claimant) subject to the claimant giving security for the payment of the value thereof, as determined by the Commissioner, in the event of its condemnation.

201.
Effect of conviction, etc., on things liable to forfeiture
(1) Where a person is prosecuted for an offence under this Act and any thing is liable to forfeiture by reason of the commission of that offence, the conviction of that person of that offence shall, without further order, have effect as the condemnation of that thing.
(2) Where a person is prosecuted for an offence under this Act and anything is liable to forfeiture by reason of the commission of that offence, then, on the acquittal of that person, the court may order that thing either—
(a) to be released to the person from whom it was seized or to the owner thereof; or
(b) to be condemned.


202.
Procedure after notice of claim
(1) Subject to subsection (2), where the owner of any thing seized claims it by notice to the Commissioner pursuant to section 200(4), the owner may, within two months of the date of the notice, institute proceedings for the recovery of the thing seized:
Provided that where no proceedings are instituted under this subsection within the period specified, the thing seized shall be condemned.
(2) Where—
(a) the owner of any thing seized is charged with an offence by reason of which the thing is seized; and
(b) the charges preferred are subsequently withdrawn for any reason,
the period specified in subsection (1) shall begin to run on the date such charges are withdrawn.

(3) Where proceedings are instituted under subsection (1), any thing seized shall be condemned if—
(a) the court is satisfied that the thing—
(i) is liable to forfeiture under this Act; or
(ii) comprises prohibited or restricted goods which have been imported or carried coastwise or attempted to be exported in contravention of any law; or

(b) the court is not satisfied that the claimant is the owner of, or is entitled to possession of, the thing.

(4) If anything seized is not condemned under subsection (3), the court shall release it to the owner subject to the payment of any applicable duty.
[Act No. 10 of 1990, s. 6, Act No. 4 of 2004, s. 19.]

203.
Provisions relating to condemnation
(1) Where any thing has been seized under this Act provisions as being liable to forfeiture, then the condemnation of the thing shall in no way be affected by the fact that an owner of the thing was in no way concerned with the act which rendered it liable to forfeiture.
(2) Where any thing is condemned under this Act, then—
(a) subject to section 214, the thing shall be forfeited and may be sold, destroyed or otherwise disposed of as the Commissioner may think fit;
(b) condemnation of the thing shall have effect as from the date when the liability to forfeiture arose;
(c) condemnation shall, subject to any appeal in proceedings which resulted in condemnation, be final and, save as provided in section 204 no application or proceedings for restoration or in detinue by any person shall lie.

(3) Where goods have been condemned and are in the possession of some authority other than the customs they shall be returned to the customs for disposal under subsection (2).
[Act No. 6 of 1981, s. 2, Act No. 10 of 1988, s. 14.]

204.
Restoration of seizure
(1) Where anything has been seized under this Act, the Minister may, on application by the person from whom the thing was seized, whether or not such thing has been condemned, direct that it be released to the applicant upon such terms and conditions as the Minister may think fit.
(2) An application under subsection (1) shall be in writing and shall be forwarded to the Minister through the Commissioner.
[Act No. 8 of 1996, s. 7.]

PART XVI – LEGAL PROCEEDINGS
205.
Proceedings triable in subordinate court of first class
(1) Without prejudice to the powers of any other court of competent jurisdiction, a prosecution for an offence under this Act may be heard and determined before a subordinate court of the first class; and where any such court hears and determines the prosecution it shall have jurisdiction to impose any fine or any sentence of imprisonment which may be imposed under this Act on a person convicted of the offence.
(2) Without prejudice to the powers of any other court of competent jurisdiction, proceedings under Part XV relating to a claim to any thing which has been seized under this Act, and a claim to any duties, rents, charges, expenses or other sums payable under this Act, may be heard and determined, without limit of amount, in civil proceedings before a subordinate court of the first class.
(3) Save where otherwise expressly provided, a person brought before a court for an offence under this Act shall be dealt with in accordance with the Criminal Procedure Code (Cap. 75).

206.
Actions by or against the Commissioner
(1) Where under this Act proceedings may be brought by or against the Commissioner, then the Commissioner may sue or be sued in the name of the Commissioner of Customs and Excise and may for all purposes be described by that name; and, notwithstanding that an action may lie in tort, the Commissioner shall be responsible for the acts and defaults of an officer as if the officer were his servant or agent:
Provided that nothing herein contained shall confer a right of action against the Commissioner in his representative capacity, whether in contract or in tort, unless such right of action is specifically given in any other provision in this Act.
(2) Where under this Act proceedings are brought by or against the Commissioner in his representative capacity, costs may be awarded to or against the Commissioner.
(3) Where under this Act proceedings are brought by or against the Commissioner in his representative capacity and—
(a) any sums or costs are recovered by the Commissioner, then those sums or costs shall be credited to the customs and excise revenue:
(b) any damages or costs are ordered to be paid by the Commissioner, then those damages or costs shall be paid out of the monies appropriated for the administration of the customs and the Commissioner shall not be personally liable therefore.


207.
Limitation of proceedings
Proceedings for an offence under this Act may be commenced, and anything liable to forfeiture under this Act may be seized, within five years of the date of the offence.

208.
Provisions relating to proof, etc., in proceedings
In proceedings under this Act—
(a) it shall not, unless it is expressly so provided, be necessary to prove guilty knowledge;
(b) the onus of proving the place of origin of goods, or the payment of the proper duties, or the lawful importation, landing, removal, conveyance, exportation or carriage coastwise of goods, or the place of manufacture of excisable goods, or that spirits in respect of which duty has been remitted for a particular purpose have been used for that purpose, or the payment of the proper duties, or the lawful manufacture of excisable goods, or that any materials or plant have been unlawfully seized, shall be on the person prosecuted or claiming anything seized under this Act;
(c) the averment by the Commissioner—
(i) that a person is or was an officer or is or was employed in the prevention of smuggling, or that an act was performed by an officer in the execution of his duty;
(ii) that any goods were staved, broken, destroyed, rescued or thrown overboard, or were so staved, broken, destroyed, rescued or thrown overboard for the purpose of preventing the seizure thereof or the securing thereof after seizure;
(iii) that any act was done within the limits of a port or at, in or over any part of Kenya;
(iv) that the Commissioner, or an officer, is or is not satisfied as to any matter as to which he is required to be satisfied under this Act;
(v) that the Commissioner has directed or requested proceedings under this Act to be instituted,
shall be prima facie evidence of that fact;

(d) a certificate purporting to be signed by or on behalf of the Government Analyst or the Government Chemist shall be receivable in evidence and shall be prima facie evidence of the matters recorded therein;
(e) the production of a document purporting to be signed or issued by the Commissioner or any person in the service of the Government shall be prima facie evidence that the document was so signed or issued;
(f) a copy, certified under the hand of the Commissioner, of an entry in a book or document required to be kept for the purposes of this Act shall be receivable in evidence and shall be prima facie evidence of the entry and of the matters recorded therein;
(g) any information, communication, certificate, official report or other document purporting to originate from or to be certified under the hand and seal or stamp of office of a principal officer of customs and excise or of any other competent authority in a foreign country and produced by the Commissioner shall be receivable in evidence and shall be prima facie evidence of the matters communicated or recorded therein;
(h) a certificate or a copy of a document or publication purporting to be signed or issued by or under the authority of the Customs Co-operation Council (established by an international convention at Brussels on 15th December, 1950) and produced by the Commissioner shall be receivable in evidence and shall be prima facie evidence of the matters contained therein;
(i) any information, communication or certificate or a copy of a document purporting to be signed or issued by or under the authority of any institution, organization or firm recognized and authorized by the Government under any agreement and produced by the Commissioner shall be receivable in evidence and shall be prima facie evidence of the matters communicated or contained therein;
(j) an officer shall be a competent witness notwithstanding that he is entitled to a reward;
(k) the fact that security has been given by bond or otherwise for the payment of duty or for the compliance with any condition in respect of the non-payment of which or non-compliance with which the proceedings are brought shall not be a defence.
[Act No. 10 of 1987, s. 6, Act No. 8 of 1989, s. 5.]

209.
Provisions relating to penalties for offences
(1) Where any court imposes on a person a fine for an offence under this Act in relation to which an alternative of imprisonment is not specified, then the court may order that person, in default of payment of the fine, to be imprisoned for a term not exceeding—
(a) twelve months, where the fine imposed does not exceed ten thousand shillings;
(b) three years, where the fine imposed exceeds ten thousand shillings.

(2) Where a person is convicted of an offence under this Act involving intent to defraud, then the maximum fine which may be imposed on that person shall be double that otherwise provided under this Act.
(3) Where a person is convicted of an offence under this Act and is liable to a fine of twenty thousand shillings or more and that person has previously been convicted of an offence under this Act or has previously been ordered to pay a sum of money under Part XVII and that order has been enforced by a court, then the court before which the person is so convicted may order that person to be imprisoned for a term not exceeding three years, or to pay the fine to which he is so liable, or to be both so imprisoned and fined.
(4) Where an offence under this Act is committed by a body corporate and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, a director, manager, secretary or similar officer of the body corporate, or a person purporting to act in any such capacity, then he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(5) A person convicted of an offence under subsection (4) may be ordered by the court to make payment to the Commissioner of the whole or such part of the tax assessed by the Commissioner as remains unpaid, either in addition to, or in substitution for any other penalty.
[Act No. 10 of 1988, s. 16, Act No. 57 of 2012, s. 7.]

210.
Place of trial
A person charged with an offence under this Acts may be proceeded against, tried and punished in any place in which he may be in custody for that offence as if the offence had been committed in that place; and the offence shall for all purposes incidental to, or consequential upon, the prosecution, trial or punishment thereof be deemed to have been committed in that place:
Provided that nothing herein contained shall preclude the prosecution, trial and punishment of that person in a place in which, but for the provisions of this section, that person might have been prosecuted, tried and punished.

211.
Protection of witnesses
(1) No witness on behalf of the Government or of the Commissioner in proceedings under this Act shall be compelled to disclose the fact that he received information relating to a customs matter, or the nature of that information, or the name of the person who gave that information.

(2) No officer appearing as a witness in any proceedings shall be compelled to produce any confidential reports made or received by him in his official capacity or any confidential information received by him in that capacity.

212.
Reasonable grounds a defence in any action against officer
(1) Where any proceedings, whether by way of prosecution or otherwise, are taken under this Act, and—
(a) the proceedings result in a determination in favour of a person prosecuted, or in favour of an owner claiming anything which has been seized; and
(b) the proceedings arise out of an act done, whether by way of seizure or otherwise by an officer in the execution or intended execution of his duty under this Act; and
(c) the court before which the proceedings are determined finds that there were reasonable grounds for the act,
then the court shall, on request made by or on behalf of the officer, so certify on the record; and a certified copy of that finding shall, on the request of the officer, be delivered to him and shall be receivable in evidence in any proceedings in proof of that finding.

(2) No officer shall be liable to any action or other proceedings on account of an act in respect of which a court has, under subsection (1), found that there were reasonable grounds for the act.
(3) Where proceedings are brought against an officer on account of an act done, whether by way of seizure or otherwise in the execution or intended execution of his duty under this Act and judgment is given against the officer, then, notwithstanding that in proceedings referred to in subsection (1), a court has not found that there were reasonable grounds for the act, if the court before which the proceedings are heard is satisfied that there were reasonable grounds for the act, the plaintiff shall be entitled to recover anything seized, or the value thereof, but shall not otherwise be entitled to damages and no costs shall be awarded to either party.

213.
Power of officer to prosecute
Any officer may appear and prosecute in a prosecution before a subordinate court for an offence under this Act.
PART XVII – SETTLEMENT OF CASES BY THE COMMISSIONER
214.
Power of Commissioner to compound offence by agreement
(1) The Commissioner may, where he is satisfied that a person has committed an offence under this Act in respect of which a penalty of a fine is provided, or in respect of which anything is liable to forfeiture, compound the offence and may order that person to pay such sum of money, not exceeding the amount of the fine to which he would have been liable if he had been prosecuted and convicted for the offence, as he may think fit; and he may order anything liable to forfeiture in connection therewith to be condemned:
Provided that the Commissioner shall not exercise his powers under this section unless the person in writing admits that he has committed the offence and requests the Commissioner to deal with the offence under this section.
(2) Where the Commissioner makes an order under this section—
(a) the order shall be put into writing and shall have attached to it the request of the person to the Commissioner to deal with the matter; and
(b) the order shall specify the offence which the person committed and the penalty imposed by the Commissioner; and
(c) a copy of the order shall be given to the person if he so requests; and
(d) the person shall not be liable to further prosecution in respect of the offence save with the express consent in writing thereto of the Attorney-General; and, unless that consent has been given, if a prosecution is brought it shall be a good defence for that person to prove that the offence with which he is charged has been compounded under this section; and
(e) subject to paragraph (d), the order shall be final and shall not be subject to appeal and may be enforced in the same manner as a decree or order of the High Court.
[Act No. 10 of 1980, s. 2.]


PART XVIII – MISCELLANEOUS
215.
Attendance of master before Commissioner
Where under the provisions of this Act the master or agent of an aircraft or vessel is required to answer questions put to him by the Commissioner or an officer, and the aircraft or vessel has not left its final position, anchorage or berth preparatory to leaving Kenya, then the Commissioner, or officer, may require the master to attend before him at the office of the Commissioner, or of the officer, as the case may be, for the purpose of answering the questions:
Provided that the master may, with the consent of the Commissioner or officer, depute a senior officer of the aircraft or vessel to attend at the office for that purpose; and in that case any reply made to a question put to the senior officer by the Commissioner or officer shall, for the purposes of this Act, be deemed to be a reply made by the master.

216.
Provisions related to prescribed forms
(1) Where the form of an entry, bond, return, account or other document required or authorised for the purposes of this Act has been prescribed, then all entries, bonds, returns, accounts or other documents shall be in the prescribed form and shall contain all the prescribed particulars.
(2) Where a prescribed form contains, by way of note or otherwise, a clear direction or indication of a requirement as to—
(a) the colour or size of the form;
(b) the number of copies of the form to be tendered (and the word “in duplicate” or similar words shall be sufficient indication of the number required);
(c) the nature or form of the information to be furnished;
(d) any action to be taken by the person concerned, or his agent, in the transaction in which the form is used;
(e) the receipts to be signed by any person in proof of the fact that the goods described in the form have been received for carriage or otherwise,
then the requirements so indicated shall be deemed to have been prescribed.

(3) The proper officer may require copies of a prescribed form in addition to the numbers indicated on that form.

217.
Provisions related to all documents
(1) Where a document required or authorized for the purposes of this Act contains any words not in the English language, then the person producing or using the document may be required to produce therewith a correct English translation of those words.
(2) Where a person is required to submit a form for the purposes of this Act, then the proper officer may require that person to submit as many copies thereof as he may think necessary.
(3) Where the proper officer requires an invoice to be produced for goods which have been imported, exported, carried coastwise or entered in transit or for transhipment, he may require the invoice to be submitted in original and duplicate and he may retain both.
(3A) Where a person is required under this Act to keep a document or record, the person shall retain the document or record for at least seven years after the document or record was created.
(3
B) Where, under the provisions of this Act, any account, books of account, or other records are required to be kept, such accounts, books or records may be kept in written form or in micro-film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism.
(4) A person who fails to comply with a requirement under this section shall be guilty of an offence.
[Act No. 4 of 2004, s. 20.]

218.
Production of documents
(1) The proper officer may, within five years of the date of importation or exportation, carriage coastwise, manufacture or delivery of any goods, require the owner thereof—
(a) to produce all books and documents relating in any way to those goods; and
(b) to answer any questions in relation thereto; and
(c) to make such declaration with respect to the weight, number, measure, strength, value, cost, selling price, origin, destination or place of transhipment of those goods,
as the proper officer may think fit.

(2) The proper officer may require any person who imports, exports or manufactures any goods similar to the goods to which subsection (1) applies but who is not the owner thereof—
(a) to produce all books and documents relating in any way to his goods; and
(b) to furnish any information or particulars in relation thereto; and
(c) to make such declaration with respect to the weight, number, measure, strength, value, cost, selling price, origin, destination or place of transhipment of his goods previously imported, or intended to be imported by him as the proper officer may think fit.

(3) The proper officer may require a person concerned in the exportation of goods to produce, within such time as the proper officer may consider reasonable, a certificate from the customs authorities at the port of discharge of the due discharge thereat of those goods according to the export entry.
(4) Where a person fails to comply with a requirement made by the proper officer under this section, then the proper officer may refuse entry or delivery, or prevent exportation of the goods, or may allow entry, delivery or exportation upon the deposit of such sum, pending the production of the books and documents, as he may think fit; and a deposit so made shall be forfeited and paid into the customs and excise revenue if the documents are not produced within three months, or such further time as the proper officer may permit of the date of the deposit.
(5) Where a requirement made by the proper officer under this section relates to goods which have already been delivered or exported and the owner fails to comply with that requirement, then the proper officer may refuse to allow the owner to deliver or export any other goods.
(6) The proper officer may retain any document produced by any owner under the provisions of this section but the owner shall be entitled to a copy thereof certified under the hand of the Commissioner; and the certified copy shall be receivable in evidence in all courts and shall have equal validity with the original.
(7) A person who fails to comply with any requirement made under this section shall be guilty of an offence.
[Act No. 8 of 1991, s. 30, Act No. 6 of 1994, s. 10.]

218A.
Determination of duty for failure to keep records, etc.
Where, in the opinion of the Commissioner, a person has failed to pay duty which is payable by him by reason of—
(a) his failure to keep proper books of account, records or documents, as required under this Act, or the incorrectness or inadequacy of those books of account, records or documents; or
(b) his failure to make any return required under this Act, or delay in making such return, or the inadequacy or incorrectness of any such return,
the Commissioner may, on such evidence as may be available to him, and according to the best of his own judgment, determine the amount of the duty, if any, which is payable.
[Act No. 4 of 2004, s. 21.]

219.
Power to require information from importers concerning dumping
(1) The Commissioner may require the importer of goods regarded as having been dumped to state such facts concerning the goods and their history as the Commissioner may think necessary to determine whether the goods are goods originating in a country specified in an order or are goods exported from any country, and to furnish him in such form as he may require with proof of any statements so made; and if proof is not furnished to his satisfaction or the required facts are not stated, the goods shall be deemed for the purposes of this Act to have originated in or, as the case may be, to have been exported from, such country as he may determine.
(2) Where the question whether any and if so what dumping duty is chargeable on the goods depends on other matters besides the country in which the goods originated or from which they were exported, the Commissioner may also require the importer to state such facts as the Commissioner may think necessary to determine that question, and with regard to those other matters to furnish him in such form as he may require with proof of any statements so made; and if proof is not furnished to his satisfaction or the required facts are not stated, those facts shall be deemed for the purposes of duty imposed by an order to be such as he may determine.

220.
Provisions relating to declaration and signatures
(1) Where under this Act a declaration is required or authorized to be made, then the declaration may be made before a magistrate, notary public or commissioner for oaths, or before an officer authorized by the Commissioner for that purpose.
(2) Where under this Act a document is required or authorized to be signed in the presence of the Commissioner or of a particular officer, then, if the document is signed in the presence of a witness who is approved by, and whose signature is known to, the Commissioner or the particular officer, the document shall be deemed for the purpose of this Act to have been signed in the presence of the Commissioner or the particular officer.

221.
Receipts for payment on entry
Where a person requires a receipt for money paid and brought to account in respect of an entry, then that person shall furnish the proper officer with an additional copy, marked as such, of the entry and the additional copy duly signed by the proper officer and acknowledging receipt of the money shall be given to that person and shall constitute the receipt for the payment.

222.
Service of notices, etc.
(1) Where under this Act a notice or other document is required or authorized to be served on, or given or delivered to, the Commissioner or any other officer, then the notice or other document may be so served, given or delivered—
(a) by delivering it personally to the Commissioner or other officer; or
(b) by leaving it at the office of the Commissioner or other officer; or
(c) by sending it by post to the Commissioner or other officer.

(2) Where under this Act a notice or other document is required or authorized to be served on, or given or delivered to a person by the Commissioner or any other officer, then such notice or other document may be so served, given or delivered—
(a) by delivering it personally to that person; or
(b) by leaving it at the usual or last known place of address of that person; or
(c) by sending it by post addressed to that person at his usual or last known place of address.


223.
Provisions relating to loading, etc., of goods
Where under this Act goods are required or authorized to be—
(a) loaded, unloaded or removed to any place for security, examination, weighing, sorting or any other purpose prior to delivery or, in the case of goods for export, to exportation, then all such operations shall be performed by or at the expense of the owner of the goods;
(b) unpacked, sorted, piled or otherwise prepared for examination, then all such operations shall be performed by and at the expense of the owner of the goods and in such manner as the proper officer may require so as to enable him to examine and take account of the goods.

224.
Proper officer may take or allow samples to be taken
(1) The proper officer may at any time take samples of goods subject to customs control for such purposes as the Commissioner may think necessary; and any such samples shall be disposed of and accounted for in such manner as the Commissioner may direct.
(2) The proper officer may, subject to such conditions as he may impose, permit the owner of any goods subject to customs control to take samples of those goods without payment of the duty thereon at the times the samples are taken.

225.
Recovery of excise duty by distress
(1) Where duty remains unpaid by a person after the time when, in accordance with the provisions of this Act, it is required to be paid, then the Commissioner may authorize distress to be levied—
(a) upon the goods, chattels and effects of the person who should have paid the duty wherever those goods, chattels and effects may be found; and
(b) upon the plant of any factory and upon any vats, vehicles, animals or other articles used in the manufacture, sale or distribution of excisable or other goods by that person and found on any premises in the use or possession of that person or of any person on his behalf or in trust for him.

(2) The warrant of distress shall be in the form set out in the Sixth Schedule and the warrant shall be authority to distrain for the amount of the duty specified herein; and for the purpose of levying distress the person authorized under the warrant may, if necessary, break open any building or place in the daytime and may call to his assistance a police officer and the police officer shall render assistance accordingly.
(3) Where any thing has been distrained upon under a warrant, then it shall be kept at the cost of the owner thereof for a period of fourteen days or until the amount due in respect of duty and of the costs and charges of, and incidental to the distress are paid, whichever is the sooner; and if at the end of the period of fourteen days the duty, costs and charges are not paid in full then the thing may be sold.
(4) Where any thing is sold in accordance with this section, then the proceeds of sale shall be applied in discharge of—
(a) the duties; and
(b) the costs and charges of, and incidental to, the levying of distress and the sale,
and the balance, if any, shall be paid to the owner of the thing if he makes application therefore within twelve months of the date of the sale.
[Act No. 8 of 1983, s. 5.]

225A.
Penalty for late payment
(1) Subject to sections 20(2) and 158 where an amount of duty or other sum of money which is due under this Act remains unpaid after the date upon which it is payable, a penalty of two per cent per month or part thereof, of the unpaid amount shall forthwith be due and payable:
Provided that the penalty chargeable under this subsection shall not exceed one hundred per cent of the duty originally due.
(2) Subject to subsection (3), a penalty imposed under this section shall be recoverable as though it were duty.
(3) A penalty imposed under this section in respect of non-payment of a sum of money payable pursuant to an order made under section 214, shall be recoverable as though it were part of that order.
(4) Notwithstanding any other provision of this section, a person from whom a penalty under subsection (1) is due may apply in writing to the Commissioner for remission of the penalty.
(5) Upon receipt of an application under subsection (4), the Commissioner shall, where the applicant has paid the principal duty in full, suspend the charging of the penalty pending the determination of the application.
(6) The Commissioner may, after consideration of an application under subsection (4), remit the whole or part of the penalty due if satisfied that such remission is justified, and shall make quarterly reports of all remissions granted under this subsection to the Minister:
Provided that where the amount of the penalty exceeds one million five hundred thousand shillings, the remission shall be subject to the approval of the Minister.
(7) Where remission under subsection (6) is not granted, or is granted in respect of only part of the penalty, the balance of the penalty shall become due and payable within ninety days of the determination of the application.
(8) If the balance of a penalty payable under subsection (7) remains unpaid after the expiry of the specified period, a surcharge of two per cent per month or part thereof, of the unpaid amount shall forthwith be due and payable.
[Act No. 14 of 1982, s. 8, Act No. 8 of 1991, s. 32, Act No. 13 of 1995, s. 49, Act No. 6 of 2001, s. 21, Act No. 8 of 2008, s. 10.]

225B.
Security on property of unpaid duty, etc.
(1) Where any person, being the owner of land or buildings situated in Kenya, fails to pay any duty or other sum of money due and payable under this Act, the Commissioner may by notice in writing inform that person of his intention to apply to the Registrar of Lands for the land or buildings to be the subject of security for the duty or other sum of an amount specified in the notice.
(2) If a person on whom a notice has been served under this section fails to pay the whole of the amount specified in the notice within thirty days of the date of service thereof, the Commissioner may by notice in writing direct the Registrar of Lands that the land or buildings, to the extent of the interest of that person therein, be the subject of security for duty or other sum of a specified amount, and the Registrar shall, without fee, register the direction as if it were a mortgage over or charge on the land or buildings and thereupon the registration shall, subject to any prior mortgage or charge operate while it subsists in all respects as a legal mortgage or charge to secure the amount payable.
(3) The Commissioner shall, upon the payment of the whole of the amount secured under subsection (2), by notice in writing to the Registrar of Lands cancel the direction made under that subsection and the Registrar shall, without fee, record the cancellation.
[Act No. 14 of 1982, s. 8.]

226.
Rewards
The Commissioner may award to any person—
(a) who has arrested or has assisted in the arrest of any other person under this Act such reward, not exceeding twenty thousand shillings, as he may think fit on the conviction of that other person;
(b) who has seized goods or by whose aid goods are seized under this Act such reward, not exceeding the value of the goods seized or twenty thousand shillings, whichever is the less, as he may think fit;
(c) by whose aid a conviction is obtained in any prosecution under this Act such reward not exceeding twenty thousand shillings as he may think fit;
(d) by whose aid an offence is compounded in accordance with Part XVII such reward not exceeding twenty thousand shillings as he may think fit.
[Act No. 13 of 1979, s. 2, Act No. 8 of 1997, s. 11.]

227.
Auctioneers legislation not to apply to sales
Where goods are sold under this Act, then the provisions of any other legislation relating to auctioneers shall not apply to the sale.

227A.
Officers, etc., not to take part in auction
(1) No officer or any other employee of the Kenya Revenue Authority may, by himself or through an agent, purchase any goods offered for sale in an auction held under this Act.
(2) Any person who contravenes subsection (1) shall be guilty of an offence.
[Act No. 4 of 2004, s. 22.]

228.
Licensing of aircraft, vessels and vehicles conveying goods
subject to customs control
(1) The Commissioner may require an aircraft, vessel or vehicle intended to be used for the conveyance of goods subject to customs control to be licensed by him and in that case application for a licence shall be made in such manner, and upon payment of such fees, as may be prescribed.
(2) A person who uses an unlicensed aircraft, vessel or vehicle for the conveyance of goods subject to the provisions of subsection (1) without the written permission of the Commissioner, shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings.
[Act No. 6 of 1994, s. 11.]

229.
Application of Act to importation, etc., overland
The provisions of this Act in relation to the importation or exportation of goods, or to the arrival or departure of persons, by aircraft or vessels arriving from or proceeding to a foreign port or place shall apply, subject to any necessary adaptations or modifications, in the same manner to the importation or exportation of goods or to the arrival or departure of persons, overland or by inland water-ways.

230.
Provisions relating to commissioned vessels and aircraft
Where an aircraft or vessel under commission from a foreign state arrives in Kenya having on board goods other than stores for use in that aircraft or vessel—
(a) the aircraft or vessel may be boarded and searched by the proper officer in the same manner as any other aircraft or vessel and the proper officer may cause any such goods to be taken ashore and placed in a customs warehouse;
(b) the master of the aircraft or vessel shall—
(i) deliver an account in writing of the goods and of the quantity, marks and names of the shippers and consignees thereof;
(ii) answer all questions put to him by the proper officer in relation to the goods.


231.
Excise licence to furnish annual audit certificate
The Commissioner may require an excise licensee to submit annually an audit certificate, signed by a qualified accountant not in the employment of the licensee, in relation to the books and records required to be kept by the licensee under the provisions of this Act.

232.
Application of air legislation
Where any legislation relating to air navigation in Kenya contains a provision contrary to the provisions of this Act, then the provision contained in that legislation shall have effect to the exclusion of the corresponding provision contained in this Act.

233.
Power of Commissioner in special cases
Notwithstanding anything contained in this Act, the Commissioner may, in order to meet the exigencies of any special case—
(a) permit goods to be loaded on to, or unloaded and removed from an aircraft, vessel or vehicle on such days, at such times, at such places, and under such conditions, as he may either generally or in any particular case direct;
(b) permit the entry of goods, and the report or clearance of an aircraft, vessel or vehicle, in such form and manner, and by such person, as he may either generally or in particular cases direct;
(c) dispense, wholly or in part, with any requirement imposed on an excise licensee under this Act.

234.
Regulations
(1) The Minister may make regulations generally for giving effect to the provisions of this Act and for the conduct of any business relating to the customs and, without prejudice to the generality of the foregoing, with respect to—
(a) the application of this Act to postal articles and the powers of officers in the service of the Post Office in relation to goods imported or exported by post;
(b) the conditions upon which goods may pass in transit;
(c) the fee to be paid for any licence issued under this Act;
(d) the rents and other charges to be paid in respect of goods warehoused or deposited in a customs warehouse, Government warehouse, transit shed or customs area;
(e) the total or partial exemption from import duty for a limited period of a vehicle, or article of an everyday kind in actual use, brought into Kenya by a person making only a temporary stay therein;
(f) the transmission by post without prepayment of postage of any return or declaration required or authorized under the provisions of this Act;
(g) the information to be supplied by the importer or any other person concerned with the importation of goods for the purpose of the proper valuation thereof, and the production of books of accounts or other documents relating to the purchase, importation, or sale of the goods;
(h) the regulation and control of the conduct of business and operations of refineries;
(i) the weights, quantities and sizes in which excisable goods may be made up or packed for sale;
(j) the returns to be made by a licensee for the purposes of this Act;
(k) for securing and collecting duty;
(l) regulating the manufacture of spirits;
(m) prescribing the maximum and minimum strengths of any wort, wash or spirits;
(n) regulating the receipt, storage, warehousing, removal and delivery of spirits prior to the payment of duty thereon, or in respect of which duty has been remitted;
(o) regulating operations in a distiller’s or rectifier’s warehouse;
(p) regulating the denaturing of spirits;
(q) the dumping of goods and subsidization of goods exported in Kenya;
(r) the implementation of Kenya’s obligation under any international treaty or agreement relating to the provisions of this Act.

(2) Regulations made under subsection (1) may provide that any person contravening any of the provisions thereof shall be guilty of an offence and liable to a fine not exceeding one million five hundred thousand shillings or three times the value of the goods involved, whichever is the higher, or to imprisonment for a term not exceeding three years, or to both.
[Act No. 8 of 1991, s. 27, Act No. 8 of 1997, s. 12, Act No. 9 of 2000, s. 15, Act No. 6 of 2001, s. 22.]

235.
Saving
(1) Where security was given for the doing of any act or for the protection of revenue or an obligation to pay duty, whether by bond or otherwise, in Kenya under the East African Customs and Transfer Tax Management Act (E.A. Cap. 28) or the East African Excise Management Act (E.A. Cap. 27), it shall have effect as if it had been given, undertaken or incurred under this Act, and may be enforced with respect to a default occurring at any time after the date it was given, notwithstanding that that date was prior to the commencement of this Act.
(2) Where duty was due to be paid or refunded in Kenya under the East African Customs and Transfer Tax Management Act, the East African Excise Management Act (E.A. Cap. 27) or any of the Acts repealed by this Act whether before or after the commencement of this Act, and was not so paid or refunded, it shall be paid or refunded as though it were a sum due under this Act.
(3) Where goods in Kenya were seized or were liable to seizure, or where proceedings were instituted in Kenya by or against the Commissioner-General of Customs and Excise under the East African Customs and Transfer Tax Management Act (E.A. Cap. 28) or the East African Excise Management Act for the release or forfeiture of seized goods or for the payment or refund of duty or any other sum, then the seizure or liability to seizure, or the proceedings, shall be deemed to have taken place, arisen or been commenced, as the case may be, under the corresponding provisions of this Act.
[Act No. 14 of 1982, s. 9.]

236.
Transitional
Notwithstanding section 28 of the Interpretation and General Provisions Act (Cap. 2), the Minister may, within a period of thirty months from the commencement of this Act, make orders granting remission or refund of duty under section 138(1) or 145(1), as the case may be, with retrospective effect to a date earlier than such commencement.
[Act No. 13 of 1978, Sch., Act No. 6 of 1979, Sch.]





































































































































































































SECOND SCHEDULE
[Section 17, Act No. 10 of 1988, Act No. 8 of 1989,
L.N. 349/1994, Act No. 6 of 1994, s. 13, L.N. 383/1994, Act
No. 8 of 1995, s. 3, L.N. 117/1996, Act No. 8 of 1997, s. 14, L.N.
159/1997, L.N. 347/1997, Act No. 5 of 1998, s. 13, L.N. 12/1998,
L.N. 58/1998, L.N. 119/1998, L.N. 12/1999,L.N. 33/1999, L.N.
48/1999, L.N. 109/1999, L.N. 136/1999, L.N. 184/1999, Act No. 4 of
1999, s. 14, L.N. 65/2000, Act No. 9 of 2000, s. 17, Act No.
4 of 2004, s. 24.]
SUSPENDED DUTIES
THIRD SCHEDULE
[Act No. 10 of 1980, s. 2, Act No. 1 of 1982, s.
2, Act No. 14 of 1982, s. 11, Act No. 8 of 1983, s. 7, Act No. 13
of 1984, s. 8, Act No. 19 of 1984, Sch, Act No. 8 of 1985, s. 6, Act
No. 10 of 1986, s 10, Act No. 10 of 1987, s. 8, Act No. 8 of 1989,
s. 8, Act No. 10 of 1990, s. 10, Act No. 8 of 1991, s. 34, Act No.
3 of 1992, s. 3, Act No. 9 of 1992, s. 15, Act No. 4 of 1993, s. 19,
Act No. 6 of 1994, s. 14, Act No. 13 of 1995, s. 51, Act No.
8 of 1996, s. 9, Act No. 8 of 1997, s. 15, Act No. 5 of 1998, s. 14,
Act No. 4 of 1999, s. 15, Act No. 9 of 2000, s. 18, Act No. 6 of 2001,
s. 24, Act No. 7 of 2002, s. 18, Act No. 15 of 2003, s. 15, No. 4
of 2004, s. 25, Act No. 57 of 2012, s. 8.]
EXEMPTIONS FROM DUTY
PART A - SPECIAL EXEMPTIONS
1.
The President
Deleted by Act No. 57 of 2012, s. 8.

2.
The Kenya Defence Forces
All goods, including materials, supplies, equipment, machinery and motor vehicles for the official use of the Kenya Defence Forces.

3 to 5.
Deleted by Act No. 8 of 1991, s. 34.

6.
Commonwealth and other Governments
(1) Goods consigned to officers or men on board a naval vessel belonging to another Commonwealth Government for their personal use or for consumption on board such vessel.
(2) Goods for the use of any of the armed forces of any allied power.

7.
Diplomatic Privileges
(1) Household and personal effects of any kind imported by entitled personnel or their dependants including one motor vehicle imported or purchased by them prior to clearance through customs within ninety days of their first arrival in Kenya, or such longer period, not exceeding three hundred and sixty days from the date of his arrival, as may be approved by the Treasury in specific cases, where the entitled personnel have not been granted an exemption under item 7(3) of Part A, on item 8(3) of Part B of this Schedule:
Provided that this exemption shall apply to entitled personnel who may have arrived for a new contract notwithstanding their previous residential status in Kenya while in execution of another aid project, and provided that each contract is for a term of not less than two years.
(2) One motor vehicle which the Commissioner is satisfied is imported as a replacement for a motor vehicle originally imported under paragraph (1) which has been written off due to accident, fire or theft, subject to the Minister’s written approval of such importation:
Provided that customs duty shall be payable at the appropriate rate if the written-off motor vehicle is disposed of locally.
THIRD SCHEDULE -continued

(3) Goods for the official use of the United Nations or its specialized agencies or any Commonwealth high commission or of any foreign embassy, consulate or diplomatic mission.
(4) Goods for the use of a high official of the United Nations or its specialized agencies or a member of the diplomatic staff of any Commonwealth or foreign country, where specific provision for such exemption is made by the Minister responsible for foreign affairs.
(5) On first arrival in Kenya or within three months of that date, the household and personal effects, including one motor vehicle, of an employee of the United Nations or of its specialized agencies, a Commonwealth high commission, or a foreign embassy, consulate or diplomatic mission where the employee—
(a) is not engaged in any other business or profession in Kenya; and
(b) has not been granted an exemption under item 8(1) and (2) of Part A or item 8(3) of Part B of this Schedule.


8.
Aid Agencies
(1) Household and personal effects of any kind imported by entitled personnel or their dependants, including one motor vehicle imported and purchased by them prior to clearance through Customs, within ninety days of their first arrival in Kenya or such longer period, not exceeding three hundred and sixty days from the date of arrival, as may be approved by the Treasury in specific cases, where entitled personnel have not been granted an exemption under item 7(3) of Part A, or item 8(3) of Part B of this Schedule:
Provided that the exemption under this paragraph shall apply—
(i) to entitled personnel who may have arrived for a new contract for a term of not less than two years notwithstanding their previous residential status in Kenya while in execution of another aid project;
(ii) only once in every four years in respect of a motor vehicle where there is an ongoing project;
(iii) to an additional motor vehicle where there is a bilateral agreement between the Government and an aid agency entered into prior to the 10th June, 1999.

(2) One motor vehicle which the Commissioner is satisfied is imported as a replacement of a motor vehicle originally imported under paragraph (1) which has been written off due to accident, fire or theft, subject to the Minister’s written approval of such importation:
Provided that customs duty shall be payable at the appropriate rate if the written-off motor vehicle is disposed of locally.
(3) Household and personal effects of any kind imported into Kenya by entitled personnel or their dependants within three months of their first arrival in Kenya or such longer period, not exceeding twelve months from arrival, as may be approved by the Treasury in specific cases, where the entitled personnel or their dependants have not been granted an exemption under item 7(3) of Part A, or item 8(3) of Part B, of this Schedule.
THIRD SCHEDULE -continued

(4) One motor vehicle imported or purchased prior to clearance through customs by the entitled personnel within three months of their first arrival in Kenya, or such longer period, not exceeding twelve months from arrival, as may be approved by the Treasury in specific cases, where the entitled personnel have not been granted an exemption under item 7 (3) of Part A, or item 8 (3) of Part B, of this Schedule.
(5) One motor vehicle which the Commissioner is satisfied is imported as a replacement for another motor vehicle originally imported under paragraph (4) and which has been written off due to accident, fire or theft, where the Minister’s written approval of importation is obtained:
Provided that customs duty at the appropriate rate will be payable if any of the goods referred to in paragraphs 1 to 5 of this item are disposed of locally unless they are sold to persons or a body entitled to purchase such goods without the payment of duty.

9.
The East African Development Bank
Goods and equipment imported by the East African Development Bank for its official use.

10.
The War Graves Commission
Goods, including official vehicles but not including office supplies and equipment and the property of the Commission's staff, for the establishment and maintenance of war cemeteries by the Commonwealth War Graves Commission.

11.
The British Council
Goods for use by the British Council which are or will be a charge against the funds of the Council, not including goods for resale or for the personal use of the staff of the Council.

12.
Charitable Institutions
(1) Goods, being bona fide gifts (excluding office equipment, stationery and office furniture)”
(a) which the Commissioner is satisfied are imported by or consigned to charitable organisations registered as such, or which are exempted from registration, by the Registrar of Societies under section 10 of the Societies Act (Cap. 108) or by the Non-Governmental Organizations Co-ordination Board under section 10 of the Non-Governmental Organizations Co-ordination Act, 1990 (No. 19 of 1990) and whose income is exempt from tax under paragraph 10 of the First Schedule to the Income Tax Act and approved by the Commissioner of Social Service for free distribution to poor and needy persons or for use in medical treatment or rehabilitation work in their institutions provided that the Treasury has given its approval in writing where the duty exceeds KSh. 500,000;
(b) consigned to or imported by any organisation if the Commissioner is satisfied that they are for free donation to charitable organizations registered as such, or which are exempted from registration, by the Registrar of Societies under section 10 of the Societies Act or by the
THIRD SCHEDULE—continued
Non-Governmental Organizations Co-ordination Board under section 10 of the Non-Governmental Organizations Co-ordination Act, 1990 and whose income is exempt from tax under paragraph 10 of the First Schedule to the Income Tax Act, and approved by the Commissioner of Social Services for free distribution to poor and needy persons or for use in medical treatment or rehabilitation work in their institutions provided that the Treasury has given its approval in writing where the duty exceeds KSh. 500,000;
(c) including equipment, passenger motor vehicles, vessels and aircraft (excluding motor vehicles of a seating capacity of up to twenty-six persons), consigned to or imported by any organization, if the Commissioner is satisfied that they are for free donation to charitable organizations-
(i) registered by the Registrar of Societies under section 10 of the Societies Act (Cap. 108) or by the Non-Governmental Organizations Co-ordination Board under section 10 of the Non-Governmental Organizations Co-ordination Act, 1990; and
(ii) whose income is exempt from tax under paragraph 10 of the first Schedule to the Income Tax Act (Cap. 470), and are approved by the Commissioner of Social Services for use by the charitable organizations in medical treatment, educational, religious or rehabilitation work, subject to the written approval of the Treasury where the duty exceeds 500,000 shillings; and the Commissioner shall make quarterly returns of all exemptions granted under this paragraph.

(2) Goods consigned to the St. John Ambulance for use in its activities and for first aid training.
(3) (a) Goods consigned to the Kenya Red Cross for free distribution in relief work, subject to such limitations and conditions as the Commissioner may impose; and
(b) equipment, motor vehicle and aircraft donated or purchased for alleviation of hardship or disaster, subject to such limitations and conditions as the Commissioner may impose, provided the Treasury has given its approval in writing where the duty exceeds KSh. 500,000.

(4) Articles of equipment not intended for resale and not including consumable stores or provisions, for use by the Mission to Seamen or other similar organizations approved for the purpose of this paragraph by the Minister, subject to such limitations and conditions as the Commissioner may impose.
(5) Foodstuffs, vehicles, equipment and other commodities imported for the National Freedom from Hunger Committee in Kenya exclusively for use in connexion with the official activities of the National Freedom from Hunger Campaign of Kenya.
(6) Deleted by Act No. 6 of 2001, s. 24
.

13.
Religious Bodies
Altar bread, communion wafers and sacramental wine, imported or purchased by, or for presentation to, any religious body for use in the conduct of religious services.
THIRD SCHEDULE—continued

14.
Deleted by Act No. 6 of 2001, s. 24.

15.
Disabled, Blind and Physical Handicapped Persons
Materials, articles and equipment, including motor vehicles, which-
(a) are imported by and specially designed for sole use by disabled and physically handicapped persons; or
(b) are intended for the educational, scientific or cultural advancement of blind persons for the use of an organization approved by the Government for the purpose of this exemption.
Provided that-
(i) the exemption in paragraph (a) shall only apply-
(ii) paragraph (b) does not apply to motor vehicles.

16.
Deleted by Act No. 6 of 2001, s. 24.

17.
The President’s Award Scheme
Badges and record books for use exclusively in the President’s Award Scheme.

18.
The Desert Locust Control Organisation and International Red Locust Control
(1) Goods, including motor vehicles, scientific equipment, apparatus, chemicals, petroleum fuels and other materials imported by the Desert Locust Control Organisation for East Africa for its official use or for the personal use of such members of that Organisation as may be declared to be entitled officers by the Ministry of Foreign Affairs.
(2) One motor vehicle imported or purchased prior to clearance through customs within three months of first arrival in Kenya by an entitled officer of the Desert Locust Control Organisation for his personal use.
(3) Goods imported for the official use of the International Red Locust Central and Southern Africa.

19.
The Navy, Army and Air Force Institute and the Armed Forces Canteen Organisation
Goods for the Navy, Army and Air Force Institute and the Armed Forces Canteen Organisation, subject to such conditions as the Commissioner may specify, provided that-
(i) such goods shall be marked with the inscription “NAAFI” or “AFCO” as the case may be, or where it is unsuitable to mark goods, the containers, bags or packets thereof shall be so marked; THIRD SCHEDULE—continued
(ii) goods for the Armed Forces Canteen Organisation shall be cleared through Customs by the Armed Forces Canteen Organisation only.

20.
Deleted by Act No. 6 of 2001, s. 24.

21.
The Wellcome Trust
(1) All equipment and drugs imported by the Wellcome Trust with the prior approval of the Ministry of Health, for use in connexion with medical research.
(2) Motor vehicles imported by the Wellcome Trust, with the prior approval of the Ministry of Health and paid for by the Trust for use by personnel of the science laboratories operated by the Trust:
Provided that customs duty at the appropriate rate shall be payable when the vehicle is sold to a person or body not entitled to buy a vehicle without the payment of duty.

22.
The African Medical and Research Foundation
Bona fide gifts, or materials and equipment, consigned to the African Medical and Research Foundation including-
(1) high frequency single side band radio transceivers, spares and accessories, antenna materials and fittings, radio alert alarm transmitter receivers and accessories;
(2) filming materials, strip slide projectors and surgical instruments;
(3) drugs;
(4) aircraft, aircraft equipment and spares, but not including (either as gifts or otherwise) motor vehicles:
Provided that materials and equipment specified in subparagraphs (1), (2) and (3) shall be for the sole use of the above Foundation or for loan to hospitals and clinics but not for the purpose of distribution to any person or any person or institution by way of gift.

23 to 25.
(Deleted by No. 8 of 1991, s. 34.)
26.
Kenya military and police officers returning from United Nations peace-keeping missions outside Kenya
One personal passenger motor vehicle (excluding buses and mini-buses of a seating capacity of more than 8 passengers and load-carrying vehicles of a load-carrying capacity exceeding 1.5 tonnes) imported by a military or police officer returning from a United Nations peace-keeping mission outside Kenya:
Provided that-
(a) the motor vehicle was purchased prior to the return of the officer into the country; and
THIRD SCHEDULE—continued

(b) the exemption from tax liability shall not exceed the limits specified in the table hereunder—

27.
Returning Kenya Government’s Foreign Missions Personnel
One personal motor vehicle (excluding buses and minibuses of seating capacity of more than thirteen passengers and load carrying vehicles of a load carrying capacity exceeding two tonnes) imported by an officer returning from a posting in Kenya’s missions abroad or by his spouse and which is not exempted from duty under item 8(4) of Part B of this Schedule:
Provided that the exemption under this item shall not apply-
(a) unless the officer is recalled by the Government before he completes his normal tour of duty;
(b) unless, in the case of an officer’s spouse, the spouse accompanied the officer in the foreign mission and is returning with the officer;
(c) to an officer who has been recalled for reposting to another mission outside Kenya;
(d) unless the motor vehicle was purchased prior to such recall;
(e) Deleted by Act No. 6 of 2001, s. 24.
(f) if the officer or the spouse has either enjoyed a similar privilege within the previous four years from the date of importation or has imported a motor vehicle free of duty under item 8(4) of Part B of this Schedule within the two years immediately before his arrival;
(g) unless the vehicle is imported within ninety days of the date of arrival of the officer or spouse or such longer period, not exceeding three hundred and sixty days from such arrival as the Commissioner may allow.

28.
Safari Rally Drivers
(1) One motor vehicle for each rally driver and spare parts specified in paragraph (2) which-
(a) are imported or purchased prior to clearance through customs for use in the Safari Rally;
THIRD SCHEDULE—continued

(b) having been temporarily imported under section 143 of the Act for use in the Safari Rally, are purchased during the period of temporary importation by a rally driver resident in Kenya for use in the Safari Rally;
(c) having been imported under conditions whereby exemption from payment of duty is granted under this Schedule, or whereby remission or refund of duty has been granted by the Minister, are purchased by a rally driver resident in Kenya for use in the Safari Rally; and
(d) in the case of vehicles only, are assembled in Kenya and purchased by a rally driver for use in the Safari Rally.

(2) Paragraph (1) shall apply to the following spare parts imported by a rally driver for use in the Safari Rally-
(a) one engine assembly complete, or such individual parts making up one engine as the rally driver requires, including, in either case, a starter motor, alternator and clutch;
(b) one gear box assembly complete;
(c) one differential assembly and one front and rear axle assembly, or such individual parts making up one front and rear axle assembly as the rally driver requires;
(d) not more than four front suspension assemblies, or such individual parts making up those assemblies as the rally driver requires;
(e) not more than two sets of rear shock absorbers;
(f) not more than twelve rally type rims; and
(g) not more than thirty rally tyres.

(3) Exemption of duty under paragraph (1) is made on the conditions that-
(a) it applies only to motor vehicles and parts imported or purchased for use by bona fide rally drivers resident in Kenya who have been approved and recommended to the Commissioner, or a person authorised by him in writing, by the Safari Rally Limited and accepted as such by him; and
(b) the Minister, or person authorized by him in writing, shall issue to the Commissioner his written approval for the exemption in each case; and
(c) where the motor vehicle or parts cease to be used, or, in the case of parts, to be assigned for use, for Safari Rally purposes or are disposed of in Kenya to persons not entitled to exemption from, or remission of duty, duty shall immediately become payable at the appropriate rate.

(4) Nothing in paragraph (3)(a) or (c) shall prevent a motor vehicle or spare parts from being used in other rallies in Kenya.
(5) Where a person to whom exemption from or remission of duty has been granted under this item fails to take part in the rally, duty shall become payable at the rate applicable on the date the rally ends.
THIRD SCHEDULE-continued

29.
Kenya Police, National Security Intelligence Service, Administration Police, Kenya Wildlife Service and Kenya Prisons
Equipment, machinery, uniforms, uniform materials and motor vehicles, including aircraft and vessels imported for the official use of the Kenya Police, National Security Intelligence Service, Administration Police, Kenya Wildlife Service and Kenya Prisons with the approval of the Treasury.

30.
Deleted by Act No. 6 of 2001, s. 24.

31.
Sports Goods and Equipment
Goods imported by, or on behalf of, or donated to, the Ministry responsible for sports with the prior written approval of the Permanent Secretary to the Treasury, given on the recommendation of the Permanent Secretary of the Ministry responsible for sports, for sole use in the promotion of sports in Kenya.

32.
Deleted by Act 7 of 2002, s. 18.

33.
Deleted by Act 9 of 2000, s. 18.

34.
Rewards earned by Kenyan Sportsmen
Goods, including one motor vehicle (excluding buses and minibuses of seating capacity of more than 13 passengers and load carrying vehicles of load carrying capacity exceeding two tonnes) imported under written authority of the Permanent Secretary to the Treasury on the recommendation of the Commissioner responsible for sports and games by a returning Kenyan Sportsman (excluding rally drivers), and upon the production of a certificate issued by a national or internationally recognised Sports Organisation that the goods have been received as his or a part of his award.

35.
Deleted by Act No. 6 of 2001, s. 24.

36.
The Aga Khan Development Network
Materials and equipment, including motor vehicles imported pursuant to the accord of co-operation for development, between the Government and the Aga Khan Development Network, subject to the written authority of the Permanent Secretary to the Treasury.

37.
Deleted by Act No. 6 of 2001, s. 24.

38.
Entrants in Motor Cycle Rallies
(1) One motor cycle specially designed for rallying imported by an entrant in a motor cycle rally and the spare parts thereof specified in paragraph (2), which-
(a) are imported or purchased prior to clearance through Customs for use in a motor cycle rally;
(b) having been imported under section 143 of the Act for use in a motor cycle rally, are purchased during the period of temporary importation by an entrant in a motor cycle rally resident in Kenya for use in the rally;
THIRD SCHEDULE—continued

(c) in the case of motor cycles only, are assembled in Kenya and purchased by an entrant in a motor cycle rally for use in the rally.

(2) Paragraph (1) shall apply to the following spare parts imported by an entrant in a motor cycle rally for use in the rally-
(a) one engine assembly;
(b) four sets of front shock absorbers;
(c) four sets of rear shock absorbers;
(d) twelve pairs of tyres.

(3) Exemption of duty under paragraph (1) shall be granted on condition that-
(a) it applies only to motor cycles and parts imported or purchased for use by bona fide entrants in a motor cycle rally resident in Kenya who have been approved and recommended to the Commissioner or a person authorised by him, in writing, by the Automobile Association of Kenya and accepted by the Commissioner as such; and
(b) Deleted by No. 6 of 2001, s. 24.
(c) where the motor cycle or spare parts cease to be assigned for use in rallying, or are disposed of in Kenya to persons not entitled to exemption from, or remission of, duty, duty shall become immediately payable at the appropriate rate; and
(d) where a motor cycle imported or purchased pursuant to this item is not used in a rally, tax thereon shall immediately become payable at the rate applicable on the date the rally ends.


39.
Equipment for Rehabilitation of Electrical Power Generation Equipment
Equipment and parts for the rehabilitation of electrical power generators and related equipment imported prior to the 30th June, 2001, on the recommendation of the Minister responsible for energy, in such quantities and on such conditions as the Commissioner may specify.
PART B - GENERAL EXEMPTIONS
1.
Aircraft Operations
Any of the following goods which are imported for use by the national carrier or any airline designated under an air services agreement between the Government and a foreign government:
(1) Aircraft; parts and accessories thereof, including engines; air navigational instruments; lighting, radio and radar apparatus and equipment; equipment of a specialized nature for the repair, maintenance and servicing of an aircraft; specialized aircraft loading and unloading equipment; ground signs, stairways for boarding and loading aircraft; catering stores.
THIRD SCHEDULE—continued

(2) Kerosene and aviation spirit solely for use in aircraft engines.

1A.
Any of the following goods which are imported for use by an approved groundhandler or caterer-
(1) equipment of a specialised nature for repairs, maintenance and servicing of an aircraft;
(2) specialised aircraft loading and unloading equipment; and
(3) stairways for boarding and loading aircraft.

1B.
Aircraft spare parts imported by aircraft operators or persons engaged in the business of aircraft maintenance:
Provided that such spare parts shall be imported on the recommendation of the Director of Civil Aviation, in such quantities and on such conditions as the Commissioner may specify.

1C.
Jet fuel and aviation spirit purchased by an aircraft owner or operator for use in an aircraft engine.

2.
Containers and Pallets
(1) Containers, including boxes, tins, bottles, jars and other packages in which any goods not liable to an ad valorem duty are packed and imported, being ordinary trade packages for the goods contained therein.
(2) Pallets and pre-packing slings.
(3) Containers specially designed and equipped for carriage by one or more modes of transport.
(4) Containers specially designed for repetitive use, on which the name of a foreign buyer of Kenyan produce is printed or inscribed.
(5) Imported containers which the Commissioner, on the recommendation of the Director of Veterinary Services, is satisfied are specially designed for storing semen for artificial insemination.

3.
Deceased Persons’ Effects
Used personal effects, subject to such limitations as the Commissioner may impose, which are not for resale and have been the property of a deceased person and have been inherited or bequeathed to the person to whom they are consigned.

4.
Deleted by Act No. 7 of 2002, s. 18.

5.
Deleted by Act No. 9 of 2000, s.18.

6.
Fish, Crustaceans and Molluscs
Fish, crustaceans and molluscs, fresh (live or dead), chilled or frozen caught and landed by canoes or vessels based in Kenya.
THIRD SCHEDULE—continued

7.
Life Saving Apparatus
Life-belts, lifebuoys and other life saving equipment.

8.
Passenger’s baggage
Goods imported by passengers arriving from places outside Kenya subject to the limitations and conditions specified in the following paragraphs.
(1) The goods shall be-
(a) the property of and accompanying the passenger, except as provided in paragraph (9);
(b) for the personal or household use of the passenger in Kenya;
(c) of such kinds and in such quantities as the proper officer may allow.

(2) Notwithstanding paragraph (1)(c), the following goods shall not be exempted under this item-
(a) alcoholic beverages of all kinds, perfumed spirits and tobacco and manufacturers thereof except as provided in paragraph (8);
(b) fabrics in the piece;
(c) motor vehicles except as provided in paragraphs (3) and (4);
(d) any trade goods, or goods for sale or disposal to other persons;
(e) aircraft and vessels of all kinds;
(f) motor vehicles imported for a temporary use or purpose under section 143 and those imported in transit or transhipment under section 141.

(3) Subject to paragraphs (1) and (2), the following goods may be exempted under this item when imported as baggage by a person on first arrival in Kenya whom the proper officer is satisfied is bona fide changing residence from a place outside Kenya to a place within Kenya, where that person has neither been granted an exemption under this paragraph not resided in Kenya before his arrival other than on temporary non-resident visits-
(a) wearing apparel;
(b) personal or household effects of any kind which were for his personal or household use in his former place of residence;
(c) one motor vehicle “(excluding buses and minibuses of seating capacity of more than 13 passengers and load carrying vehicles of load carrying capacity exceeding two tonnes)” owned by the person and registered either in his name or in the name of his spouse or in both names and used by him outside Kenya for at least ninety days (excluding the period of voyage in the case of shipment):
Provided that-
(i) the person has attained the age of eighteen years; and
(ii) notwithstanding the definition of “owner” in section 2 of the Act, only the registered owner of a motor vehicle, or a person who satisfies the Commissioner either that the motor vehicle is registered in the THIRD SCHEDULE—continued name of his spouse or in both his name and that of his spouse or, where the motor vehicle is purchased on hire purchase terms, the first instalment in respect thereof was paid and delivery taken at least ninety days prior to importation, shall qualify for exemption under this item; and
(iii) the person is granted a work permit or a dependant’s pass for a period not less than two years

(4) Subject to paragraphs (1), (2) and (5), the following goods may be exempted under this item when imported as baggage by a person whom the proper officer is satisfied is bona fide changing his residence from a place outside Kenya to a place within Kenya where that person has been residing outside Kenya for a period of at least two years and has not resided in Kenya for a period or periods amounting in aggregate to ninety days or more within the two years immediately before his arrival or return to Kenya-
(a) wearing apparel;
(b) personal or household effects of any kind which were for his personal or household use in his former place of residence;
(c) one motor vehicle (excluding buses and minibuses of a seating capacity of more than 13 passengers and load carrying vehicles of load carrying capacity exceeding two tonnes) owned by the person and registered in his name or in the name of his spouse or in both names and used by him outside Kenya for at least three hundred and sixty days (excluding the period of the voyage in case of shipment):
Provided that-
(i) the person has attained the age of eighteen years;
(ii) notwithstanding the definition of “owner” in section 2 of the Act, only the registered owner of a motor vehicle, or a person who satisfies the Commissioner either, that the motor vehicle was registered in the name of his spouse or in both his name and that of his spouse or, where the motor vehicle is purchased on hire purchase terms the first instalment in respect thereof was paid and delivery taken at least three hundred and sixty days prior to importation, shall qualify for exemption under this item;
(iii) where the person has previously been granted an exemption under this paragraph, the exemption shall not apply unless such person has used the goods so imported, in Kenya, for a period of not less than four years.

(5) The Commissioner may waive the ninety days condition referred to in paragraph (4) in respect of any period not exceeding three hundred and sixty days spent in Kenya, if he is satisfied-
(a) that he goods are imported by sportsmen who are recalled to participate or to represent Kenya in national or international sports competitions subject to confirmation to that effect by the Permanent Secretary in the Ministry for the time being responsible for sports; or
THIRD SCHEDULE—continued

(b) that the goods are imported by students who in the course of study in recognised educational institutions return to Kenya to carry out research, subject to confirmation by the sponsor and the educational institution, and on production of written approval by the Permanent Secretary in the Office of the President that the research is authorised;
(c) that the goods are imported by a returning resident being an employee of an international organisation the headquarters of which are in Kenya and who has been recalled for consultations at the organisation’s headquarters;
(d) that the goods are imported by a returning resident who has proved to the satisfaction of the Commissioner that the circumstances occasioning his stay beyond ha period were beyond his control.

(6) Subject to the provisions of paragraphs (1) and (2), the following goods may be exempted under this item when imported as baggage by a person whom the proper officer is satisfied is making a temporary visit not exceeding three months to Kenya-
(a) non-consumable goods imported for his personal use during his visit which he intends to take out with him when he leaves Kenya at the end of his visit;
(b) consumable provisions and non-alcoholic beverages in such quantities and of such kinds as are in the opinion of the proper officer consistent with his visit.

(7) Subject to paragraphs (1) and (2), the following goods may be exempted under this item when imported as baggage by a person whom the proper officer is satisfied is a resident of Kenya returning from a visit to any place outside Kenya and who is not changing residence in accordance with paragraphs (3) and (4)-
(a) wearing apparel;
(b) personal and household effects which have been for his personal use or household use but not including bicycles, cine or still projectors, record players, amplifiers, loud-speakers, gramophones, gramophone records, refrigerators, refrigeration equipment, cookers, typewriters, cassettes, tapes, sound recording machines, tuners, radio and television receiving sets, radio grams, telephones, fax machines, photocopiers, video recording or reproducing apparatus, computer, computer diskettes, office machines, stationery, or consumable provisions;
(c) instruments and tools for his personal use in his profession or trade.

(8) (a) Subject to paragraph (1) and to subparagraph (b) of this paragraph, duty shall not be levied on the following goods imported by, and in the possession of a passenger-

(i) spirit (including liqueurs) not exceeding one litre or wine, not exceeding two litres; THIRD SCHEDULE—continued
(ii) perfume and toilet water not exceeding in all one half litre, of which not more than a quarter may be perfume;
(iii) cigarette, cigars, cheroots, cigarillos, tobacco and snuff not exceeding in all 250 grams in weight;
(b) these duty free allowance shall be granted only to passengers who have attained the age of eighteen years;
(9) Subject to paragraphs (1) and (2), the exemption granted in accordance with paragraphs (3), (4) and (5) may be allowed in respect of baggage imported within ninety days of the date of arrival of the passenger or such longer period, not exceeding three hundred and sixty days from such arrival, as the Commissioner may allow, and the duty free allowance granted in accordance with paragraph (8) shall not be allowed in respect of goods specified in that paragraph imported in unaccompanied baggage.
(10) Where any person who has been granted an exemption under paragraph (3) or (4), changes his residence to a place outside Kenya within ninety days from the date of his arrival, he shall export his personal or household effects within thirty days, or such further period not exceeding sixty days from the date he changes his residence to a place outside Kenya, as the Commissioner may allow, otherwise duty becomes payable from the date of importation.

9.
Deleted by Act No. 7 of 2002, s. 18.

10.
Protective Apparel, Clothing Accessories and Equipment
Articles of apparel, clothing accessories and equipment, specially designed for safety or protective purposes for use in registered hospitals and clinics or by local authorities in fire fighting.

11.
Samples and Miscellaneous Articles
Samples and miscellaneous articles not imported as merchandise, which in the opinion of the Commissioner have no commercial value.

12.
Ships and Other Vessels
(1) Passenger and cargo vessels of all kinds of twenty-five net register tonnage or more, cable ships, ice breakers, floating factories, whale-catching vessels, trawlers and other commercial fishing vessels (other than sport-fishing vessels), weather ships, hopper barges; lighters, pontoons (being flat decked vessels used for the transportation of persons or goods) and ferry boats; parts and accessories, but not including batteries and sparking plugs.
(2) Lighthouses, buoys and other non-portable accessories imported for installation to guide vessels.

13.
Deleted by Act No. 9 of 1992, s. 15.

14.
Deleted by Act No. 8 of 1991, s. 34.

15.
Goods Imported by Air
Where any goods liable to duty ad valorem are imported by air cargo, the duty leviable on that part of the value of the goods which is represented by air freight charged.
THIRD SCHEDULE—continued

16.
Deleted Act by No. 6 of 2001, s. 24.

17.
Museums, Exhibits and Equipment
(1) Museum and natural history exhibits and specimens, and scientific equipment for public museums; and
(2) Chemicals, reagents, films, film strips and visual aids equipment, the importation of which is approved in writing by the Treasury, imported or purchased prior to clearance through customs by the National Museums.

18.
Deleted by Act No. 9 of 1992, s. 15.

19.
Seeds for Sowing
All seeds, spores and cut plants, imported specially treated, which the Director of Agriculture has approved as fit for sowing only.

20.
Deleted by Act No. 6 of 2001, s. 24.

21 and 22.
Deleted by Act No. 8 of 1991, s. 34.

23.
Deleted by Act No. 6 of 2001, s. 24.

24.
Deleted by Act No. 9 of 1992, s. 15.

25.
Breeding Animals, Semen and Fish Ova
Live animals, semen for artificial insemination and fish ova, imported for breeding purposes subject to approval by the Director of Veterinary Services or the Director of Fisheries.

26.
Raw Materials for use in the manufacture of Medicaments
Raw materials which the Commissioner is satisfied are for the sole use in the manufacture of medicaments by a manufacturer approved and listed in the Gazette by the Commissioner in consultation with the Director of Medical Services or Director of Veterinary Services.

27.
Deleted by Act No. 7 of 2002, s. 18.

28.
Plastic sheetings for Agricultural, Horticultural or Floricultural Use
Upon recommendation by the Director of Agriculture and in such quantities as the Commissioner may allow-
(a) shade netting of materials of plastic;
(b) reinforced sheeting of polymers of vinyl chloride (PVC) or of polyethylene;
(c) high density polyethylene (HDPE) sheetings in rolls for use in lining dams in a farm;
(d) polyvinyl chloride (PVC) or polyethylene for use in covering greenhouses.
THIRD SCHEDULE—continued
Shade netting for materials of plastics recommended by the Director of Agriculture to the Commissioner as being solely for use as shading for plants or agricultural and horticultural produce and in such quantities as the Commissioner may allow.

29.
Reinforced Polyvinyl Chloride (P. V. C.) or Reinforced Polyethylene for Agricultural or Horticultural Use
Reinforced sheeting of polymers of vinyl chloride (P. V. C.) or of polyethylene which the Commissioner is satisfied upon recommendation by the Director of Agriculture that they are for agricultural or horticultural use and in such quantities as the Commissioner may allow.

30.
Deleted by Act No. 6 of 2001, s. 24.

31.
Deleted by Act No. 9 of 2000, s. 18.

32
and 33. Deleted by Act No. 6 of 2001, s. 24.

34.
Hatching Eggs
Hatchings eggs for breeding purposes imported by hatcheries approved by the Commissioner by notice in the Gazette upon recommendation by the Director of Veterinary Services.

35.
High Density Polyethylene (H. D. P. E.) Sheetings.
High Density polyethylene (H. D. P. E.) sheetings imported in rolls, which the Commissioner is satisfied, upon recommendation by the Director of Agriculture, that they are for use in lining dams in a farm and in such quantities as the Commissioner may allow.

36.
Equipment for Electric Power Generation
Capital equipment, excluding motor vehicles, spare parts and office equipment, for privately financed electric power generation projects with the capacity to sell electricity into the national grid, subject to the written approval of the Permanent Secretary to the Treasury:
Provided that an exemption granted under this item shall, unless earlier revoked, expire on the 31st December, 2003.

37.
Chemically Defined Compounds used as Fertilizers
Calcium Nitrate, Magnesium Sulphate, Magnesium Nitrate, Potassium Nitrate, Plant Nutrient Chelates (Iron, Zinc, Sulphur, Calcium, Molybdenium, Manganese and Boron) or such other compounds which are used as fertilizers and which the Commissioner is satisfied, upon the recommendation of the Director of Agriculture, are for agricultural use, in such quantities and on such conditions as the Commissioner may specify.

38.
Urine bags, Diapers for adults and Hygienic bags
Urine bags, diapers for adults and hygienic bags for medical or hygienic use, in such quantities as the Commissioner may allow.
THIRD SCHEDULE—continued

39.
Polyvinyl Chloride (P.V.C.) or Polyethylene for Greenhouse covering
Polyvinyl Chloride (P.V.C.) or polyethylene which the Commissioner is satisfied, upon the recommendation of the Director of Agriculture, are for use in covering greenhouses, in such quantities and on such conditions as the Commissioner may specify.

40.
Deleted by Act No. 9 of 2000, s. 18.

41.
Specialized Ship Loading and Unloading Equipment
Specialized equipment for ship loading and unloading, imported by Gazetted Port Operators and Inland Container Depot Operators, in such quantities as the Commissioner may allow.

PART C – SPECIAL DUTY RATE
1.
Capital goods, Plant and Machinery for Investment
Capital goods, plant and machinery (excluding motor vehicles, office furniture, typewriters, copying equipment, stationery, kitchenware, crockery, liners, draperies, carpets, safes, refrigerators and raw materials) pursuant to such conditions and limitations as may be prescribed in regulations, subject to written approval by the Permanent Secretary to the Treasury.

2.
Cold storage equipment and Refrigerated Goods Transport Vehicles
Cold storage equipment and refrigerated goods transport vehicles, imported or purchased before clearance through the Customs by farmers, upon the written recommendation of the Director of Agriculture in such quantities as the Commissioner may allow, subject to written approval of the Permanent Secretary to the Treasury.
FOURTH SCHEDULE
[Section 12, Act No. 14 of 1982, Act No. 13 of
1984, Act No. 10 of 1986, Act No. 10 of 1987, Act No. 8 of 1989,
Act No. 10 of 1990, Act No. 6 of 1994, s. 15, Act No. 7 of 2002, s.
19, Act No. 15 of 2003, s. 16, Act No. 4 of 2004, s. 26, Act
No. 9 of 2007, s. 6, Act No. 8 of 2009, s. 5, Act No. 57 of 2012,
s. 9.]
EXPORT DUTIES
PART I
PART II
Part I shall not apply to exports to Export Processing Zones
FIFTH SCHEDULE
[Section 2, Act No.13 of 1979, Act No.9 of 1982,
Act No.17 of 1982, Act No.13 of 1984, Act No.8 of 1985, Act No.10
of 1986, Act No.10 of 1987, Act No.10 of 1988, Act No.2 of 1989, Act
No.8 of 1989, Act No.10 of 1990, L.N. 433/1990, Act No.8 of 1991,
Act No.3 of 1992, s. 4, Act No.9 of 1992, s. 16, L.N. 7/1993, L.N.
105/1993, Act No.4 of 1993, s. 20, L.N. 64/1994, Act No.6 of 1994,
s. 16, L.N. 377/1994, Act No.8 of 1995, s. 4, Act No.13 of 1995, s.
52, L.N. 333/1995, Act No.8 of 1996, s. 10, L.N. 3/1996, Act
No.8 of 1997, s. 16, L.N. 115/1997, L.N. 144/1997, L.N. 160/1997, Act No.5 of 1998, s. 15, L.N. 27/1998, Act No.4 of 1999, s. 16,
Act No.9 of 2000, s. 19, L.N. 136/2001, Act No.6 of 2001, s.
25, L.N. 137/2001, L.N. 12/2002, L.N. 112/2002, Act No.7 of 2002,
s. 20, Act No.15 of 2003, s. 17, Act No.4 of 2004, s. 27, Act No.6
of 2005, s. 3, Act No.10 of 2006, s. 4, Act No.9 of 2007, s. 7, Act
No.8 of 2008, s. 11, Act No.8 of 2009, s. 6, Act No.10 of 2010, s.
11, L.N. 38/2011, Act No. 4 of 2012, s. 6, Act No. 57 of 2012, Act
No. 38 of 2013, s. 7.]
PART I – EXCISE DUTY
PART II
Excise duty in respect of cigarettes shall be as shown hereunder:
PART III
1.
Deleted by of Act No. 10 of 2010, Sch.

2.
Mobile cellular phone services shall be charged excise duty at the rate of 10% of their excisable value.

3.
Other wireless telephone services shall be charged excise duty at the rate of 10% of their excisable value.

4.
All imported used computers of more than three years from the date of manufacture shall attract excise duty at the rate of 25%.

5.
Plastic shopping bags shall be charged excise duty at the rate of 50% of their excisable value.

6.
Excise duty on pre-mixed alcoholic beverages of tariff No. 2208.90.90 (e.g. Ready to drink) of strength not exceeding 10 per cent by volume of alcohol shall be Sh.70 per litre or 50% whichever is higher of the retail selling price.

7.
Excise duty on fees charged for money transfer services by cellular phone service providers, banks, money transfer agencies and other financial institutions shall be ten per cent.

8.
Excise duty on other fees charged by financial institutions shall be ten per cent.

9.
For the purposes of items 7 and 8—
“financial institutions” means—
(a) a person licensed under—
(i) the Banking Act (Cap. 488);
(ii) the Insurance Act (Cap. 487);
(iii) the Central Bank of Kenya Act (Cap. 491); or
(iv) the Microfinance Act, 2006 (Cap. 493D);

(b) a Sacco Society registered under the Sacco Societies Act, 2008 (No. 14 of 2008); or
(c) the Kenya Post Office Savings Bank established under the Kenya Post Office Savings Bank Act (Cap. 493B).
“other fees”includes any fees, charges or commissions charged by financial institutions, but does not include interest.
SIXTH SCHEDULE
[Section 225, Act No.8 of 1983.]

SEVENTH SCHEDULE
PART I - VALUE OF IMPORTED GOODS [Section 127B, Act No.4 of 1999, s. 17, Act No.9 of 2000, s. 20,
Act No.7 of 2002, s. 21.]
The customs value of imported goods shall be determined through application of the following articles in the sequence indicated except where otherwise stated.
VALUE OF THE GOODS
The customs value of imported goods shall be the price actually paid or payable for the goods when sold for export to Kenya, adjusted in accordance with the provisions of Appendix B, provided-
(1) (a) that there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which-
(i) are imposed or required by law;
(ii) limit the geographical area in which the goods may be resold; or
(iii) do not substantially affect the value of the goods; and

(b) that the price is not subject to some condition or consideration for which a value cannot be determined with respect to the value of the goods being valued;
(c) that no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Appendix B; and
(d) that the buyer and seller are not related, or where the buyer and seller are related, that the transaction value is accepted for customs purposes under the provisions of paragraph (2).

(2) (a) (i) (ii) Where the customs has grounds for considering that the relationship influenced the price of the goods, it shall communicate the grounds in writing to the importer and shall afford reasonable time for the importer to respond thereto.

(b) The customs shall accept the transaction value in a sale between related persons where the importer demonstrates that such value closely approximates to one of the following occurring at or about the same time:
(i) (ii) The customs value of identical or similar goods as determined under the provisions of Article 5.
(iii) The customs value of identical or similar goods as determined under the provisions of Article 6.

(c) In applying the foregoing tests, due account shall be taken of demonstrated differences in commercial levels, quantity levels, the elements enumerated in Appendix B and costs incurred by the seller in sales in which the seller and the buyer are not related that are not incurred by the seller in sales in which the seller and the buyer are related.
(d) The tests set forth in paragraph (2)(b) shall be applied at the initiative of the importer and only for comparison purposes.


TRANSACTION VALUE OF IDENTICAL GOODS
(1) (a) If the customs value of imported goods cannot be determined under the provisions of Article 1, the customs value shall be the transaction value of identical goods sold by other sellers for export to Kenya at or about the same as the goods being valued.

(b) Under this article, the transaction value of goods shall be-
(i) (ii) where no such sale is found, the transaction value of identical goods sold at a different commercial level or in different quantities adjusted to take account of differences attributable to commercial level or to quantity;
Provided that such adjustments are made on the basis of demonstrated evidence which establishes the reasonableness and accuracy of adjustment, whether the adjustment leads to an increase or a decrease in the value.

(2) Where the cost and charges referred to in paragraph (2) of Appendix B are included in the transaction value, an adjustment shall be made to take account of significant differences in such cost and charges between the imported goods and the identical goods in question arising from differences in distances and mode of transport.
(3) If, in applying this article, more than one transaction value of identical goods is found, the lowest such value shall be used to determine the customs value of the imported goods being valued.

TRANSACTION VALUE OF SIMILAR GOODS
(1) (a) If the customs value of the imported goods cannot be determined under the provisions of Article 1 or 2, the customs value shall be the transaction value of similar goods sold for export to Kenya and exported at or about the same time as the goods being valued.

(b) Under this article, the transaction value shall be determined using-
(i) the transaction value of similar goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued; or
(ii) the transaction value of similar goods sold at a different commercial level or in different quantities, adjusted to take account of differences attributable to commercial level or quantity:
Provided that such adjustments are on basis of demonstrated evidence which establishes the reasonableness and accuracy of the adjustment, whether the adjustment leads to an increase or a decrease on value.

(2) Where the cost and charges referred to in paragraph (2) of Appendix B are included in the transaction value, an adjustment shall be made to take account of significant differences in such costs and charges between the imported goods and the similar goods in question arising from differences in distances and modes of transport.
(3) If, in applying this article, more than one transaction value of similar goods is found, the lowest such value shall be used to determine the customs value of the imported goods being valued.
Where the Customs value of imported goods cannot be determined under the provisions of Article 1, 2, or 3, Articles 5 and 6 may be applied, and the sequence of application shall be reversed at the request of the importer.

DEDUCTIVE VALUE
(1) (a) If the imported goods or identical or similar goods are sold in Kenya in the same condition as they were imported the customs value of the imported goods under the provisions of this article shall be based on the unit price at which the imported goods or identical or similar goods are sold in the greatest aggregate quantity, at or about the time of importation of the goods being appraised, to persons who are not related to the persons from whom they buy such goods, subject to deductions for the following:
(i) (ii) the usual costs of transport and insurance and associated costs within Kenya territory;
(iii) where appropriate, the costs and charges referred to in paragraph (2) of Appendix B; and
(iv) the customs duties and other national taxes (Value Added Tax, excise etc.) payable in Kenya by reason of importation or the sales of the goods.

(b) If neither the imported goods nor identical nor similar imported goods are sold at or about the same time of importation as the goods being appraised, the customs value shall, subject to the provision of paragraph (1)(a) be based on the unit price at which the imported goods or identical or similar imported goods are sold in Kenya in the same condition as imported at the earliest date after importation of the goods being appraised but before the expiration of ninety days after such importation.

(2) If neither the imported goods nor identical nor similar imported goods are sold in Kenya in the same conditions as imported, then, if the importer so requests, the customs value shall be based on the unit price at which the imported goods, after further processing are sold in the greatest aggregate quantity to persons in Kenya who are not related to the persons from whom they buy such processing and the deductions provided for in paragraph 1(a).
(3) The term "unit price at which goods are sold in the greatest aggregate quantity" means the price at which the greatest number of units is sold in sales to persons who are not related to the persons from whom they buy such goods at the first commercial level after importation at which such sales to take place.

COMPUTED VALUE AS VALUE FOR DUTY
(1) Subject to provisions under this article, the value for customs purposes shall be based on the computed value. The computed value of goods being appraised is the aggregate of amounts equal to:
(a) Subject to paragraph (2), the cost, charges and expenses incurred in respect of, or the value of-
(i) (ii) the production or other processing of the goods being appraised and determined in the manner prescribed; and

(b) The amount, determined in the manner prescribed, for proft and general expenses considered together as a whole, that is generally reflected in sales for export into Kenya of goods of the same class or kind as the goods being appraised made by the producer in the country of export.

(2) Without limiting the generality of paragraph (1)(a) the cost, charges, expenses, and value referred to in that paragraph include-
(i) (ii) an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being appraised which are made by producers in the country of exportation for export to Kenya;
(iii) the cost or value of all other expenses necessary to reflect the adjustment in paragraph (2) of appendix B;

(3) To allow access to any account or other record for the purposes of determining a computed value the importer shall maintain proper books of account, (including sales contract, purchase orders, invoices or agreements) and shall be responsible for the information supplied by the seller of the goods being appraised. However the Commissioner as provided under section 8 of this Act shall verify information supplied by the producer of the goods through the importer in the country of export.
(Appendix A) (1) If the customs value of the imported goods cannot be determined under the provisions of Article 1 through 6, the customs value shall be determined using reasonable means consistent with the principles and general provisions of the World Trade Organization (WTO) Agreement on Customs Valuation and of Article VII of GATT 1994 and on the basis of available date collected by customs or supplied by the importer.
(2) However, no customs value shall be determined under the provisions of this Act on the basis of-
(a) the selling price of identical or similar goods produced in Kenya;

(b) a system which provides for the acceptance for customs purposes the higher of two alternative values;
(c) the price of goods on the domestic market of the country of exportation;
(d) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of Article 6;
(e) the price of goods for export to another country other than Kenya from the country of export;
(f) minimum customs values; or
(g) arbitrary or fictitious values.

(3) If the importer so requests, the importer shall be informed in writing of the Customs value determined under the provisions of this Act and the article used to determine such value.
(Appendix B) (1) In determining the customs value under the provisions of Article 1 of this Schedule there shall be added to the price paid or payable for imported goods;
(a) the following, to the extent they are incurred by the buyer but are not included in the transaction price-
(i) (ii) the cost of containers which are treated as being one for customs purposes with the goods in question;
(iii) the cost of packing whether for labour or materials.

(b) the value apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods to the extent that such value has not been included in the transaction value:
(i) (ii) tools, dies, moulds and similar items used in the production of the imported goods;
(iii) materials consumed in the production of the imported goods, engineering, development, artwork, design work, and plans and sketches undertaken elsewhere than in Kenya and necessary for the production of the imported goods;

(c) royalties and licence fees related to the goods being valued payable by the buyer, to the extent that such royalties and fees are not included in the transaction value;
(d) the value or any part of the proceeds of any subsequent sale, resale, disposal or use of the imported goods that accrues directly or indirectly to the seller;
(e) the freight cost or the cost of transport of the imported goods to the port of discharge (point of entry);
(f) the handling charges associated with the transport of the goods to the port or place of importation;
(g) the cost of insurance to either marine or aviation or overland risk;
(h) other costs associated to the transport of the imported goods.

(2) Additions to the price paid or payable shall be made under this Act only on the basis of objective and quantifiable data.
(3) No additions shall be made to the price paid or payable in determining the customs value except as provided under this Schedule.
(Appendix C) RELATED PERSONS
(1) For the purposes of this Act, persons shall be deemed to be related if-
(a) They are officers or directors of one another’s businesses;
(b) they are legally recognized partners in business;
(c) one is an employee of the other;
(d) one person directly or indirectly owns, controls or holds five per cent or more of the outstanding voting stock or shares of both of them;
(e) one of them directly or indirectly controls the other;
(f) both of them are directly or indirectly controlled by a third person;
(g) together they directly or indirectly control a third person;
(h) they are members of the same family;
(i) one is sole distributor or sole concessionaire, however described, of the other.
PART II -VALUE OF SERVICES AND LOCALLY MANUFACTURED EXCISEABLE GOODS
The excise value of locally manufactured goods shall be determined through application of the following provisions in the sequence indicated except where otherwise stated.
1.
The excise value of locally manufactured goods shall be the price actually paid or payable for the goods when sold for home use, adjusted in accordance with the provisions of section 127C(3):
Provided that-
(1) there shall be no restrictions as to the disposal or use of the goods by the buyer other than restrictions which-
(i) (ii) limit the geographical area in which the goods may be resold; or
(iii) do not substantially affect the value of the goods;
(b) the price shall not be subject to any condition or consideration for which a value cannot be determined with respect to the value of the goods being valued;
(c) no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer shall accrue directly or indirectly to the manufacturer; and
(d) the buyer and manufacturer are not related, or where the buyer and manufacturer are related within the meaning of Appendix A, the transaction value is accepted for customs purposes under the provisions of paragraph 2.


2.
In cases where the buyer and the manufacturer are related, the transaction value shall be adjusted under the provisions of paragraph 3 except where the Commissioner is satisfied that the relationship did not influence the price.

3.
Where the excise value of locally manufacture goods cannot be determined under paragraph 1 above, then the excise value shall be determined in the following manner-
(a) Where excisable goods are sold in Kenya in the same condition as they were manufacture and received in the excise stock room, the value shall be the price paid or payable by the retailer;

(b) Where excisable goods are sold to an excise manufacturer for further processing, the excisable value shall include the increase in price where the goods are sold by the subsequent manufacturer; and
(c) Where the first manufacturer had paid excise duty in respect tof the goods then the latter manufacturer shall deduct the amount so paid from the amount of duty payable on the goods.

4.
Where the provisions of paragraph (3) do not apply the value for excise purposes shall be based on the computed value. The computed value of goods being appraised is the aggregate of amounts equal to-
(a) Subject to the provisions of section 127C(3), the cost, charges and expenses incurred in respect of, or the value of-
(i) (ii) the production or other processing of the goods being appraised and determined in the manner prescribed; and

(b) the amount, determined in the manner prescribed, for profit and general expenses considered together as a whole.

5.
(1) The value for excisable services shall be the price paid or payable by the consumer for that service:
Provided that-
(a) the price is not subject to any condition or consideration for which value cannot be determined in respect of the service being valued.

(b) the buyer and seller are not related.
(c) no proceeds of the sale or use of the service shall accrue to the seller.

(2) Where the provisions of this paragraph do not apply, the Commissioner shall adjust the value to reflect the price paid or payable for an identical or similar service sold in a sale between buyer and seller independent of each other.

6.
In order to allow excess to any account or other records for the purposes of determining an excise value the manufacturer shall maintain proper books of account, (including sales contracts, purchase orders, invoices or agreements).
(APPENDIX A) RELATED PERSONS
(1) For the purposes of levying excise duty, persons shall be deemed to be related if-
(a) they are officers or directors of one another? businesses;
(b) they are legally recognized partners in business;
(c) one is an employee of the other;
(d) one person directly or indirectly owns, controls or holds five per cent or more of the outstanding voting stock or shares of both of them;
(e) one of them directly or indirectly controls the other;
(f) both of them are directly or indirectly controlled by a third; person; or
(g) together they directly or indirectly control a third; or
(h) they are members of the same family; or
(i) one is sole distributor or sole concessionaire, however described, of the other.
EIGHTH SCHEDULE
[Act No.10 of 1980, s. 2, Act No.12 of 1980, s. 2, L.N. 18 of 1981, Act No.6 of 1981, Act No.10 of 1986, s.
14, Act No.9 of 1992, s. 17, No. 5 of 1998, s. 16, Act No.4 of 1999,
s. 18, Act No.9 of 2000, s. 21, Act No.7 of 2002, s. 22, Act No.15
of 2003, s. 18, Act No.4 of 2004, s. 28, ss. 14, 15, 16, 59,
60, 61.]
PROHIBITED AND RESTRICTED GOODS
PART A -PROHIBITED IMPORTS
1.
All goods the importation of which is prohibited under this Act or of any law for the time being in force in Kenya.

2.
False money or counterfeit currency notes or coin, and any money not being of the established standard in weight or fineness.

3.
Indecent or obscene prints, paintings, books, cards, lithographs, or other engravings, and any indecent or obscene articles

4.
Matches in the manufacture of which white phosphorus has been employed.

4A.
Denatured spirits, unless in respect of each consignment there is produced a certificate issued in the country of exportation or shipment by such official authority as may be acceptable to the Commissioner, that the spirits have been denatured in accordance with the provisions of this Act.

5.
Any article marked, without proper authority, with the Armorial Ensigns or Coat of Arms of Kenya, or having ensigns or arms so closely resembling them as to be calculated to deceive.

6.
(1) Any advertisement or statement intended to promote the sale of any medicine, appliance or article for the alleviation or cure of tuberculosis, or of cancer, or of any venereal disease affecting the generative organs or functions, or of sexual impotence, or of any Complaint or infirmity arising from or relating to sexual intercourse, in or of humans:
Provided that nothing herein shall apply to a book, document or paper published for the advancement of medical science and intended for the use of a Government department or registered medical practitioner.
(2) Any medicine, appliance or article to which is affixed any such advertisement or statement referred to in paragraph (1) or to which such advertisement or statement relates.

7.
Distilled beverages containing essential oils or chemical products which are injurious to health, including thujone, star anise, benzonic aldehyde, salicylic esters, hyssop and absinthe:
Provided that nothing herein contained shall apply to “Anise” and “Anisette” liqueurs containing not more than 0.1 per centum of oil of anise and distilled from either Pimpinella anisum or the star anise Allicium verum.

8
and 9. Deleted by Act No. 9 of 1992, s. 17.

10.
Manufactured articles bearing the name, address, or trade mark of any manufacturer or dealer, or the name of any place in Kenya, calculated to impart to such articles a special character of Kenya manufacture and which are not of that manufacture.

11.
Firearms and ammunition of all types and other articles having the appearance of lethal weapons imported by post.

12.
Any goods certified by the Kenya Bureau of Standards as not meeting the standards set by that Bureau or declare by a medical officer of health appointed under the Public Health Act (Cap. 242), to be hazardous to health:
Provided that such goods shall be re-exported or destroyed within thirty days of the date the goods are declared prohibited imports.

13.
Used tyres, except those imported as raw materials by approved tyre retreaders.

14.
Waste and sludge deposits:
Provided that sweepings, waste, bilge and sludge generated by aircrafts or ships during a voyage to Kenya shall not be prohibited.

15.
Any goods the importation of which is prohibited under any international convention to which Kenya is a signatory.

16.
Potable spirits imported in containers the capacity of which is 200 mililitres or less.
PART B -RESTRICTED IMPORTS
1.
All goods the importation of which is for the tome being regulated under this Act or of any law for the time being in force in Kenya.

2.
Deleted by Act No. 9 of 1992, s. 17.

3.
Tear gas and any other similar lachrymatory substance(whether in liquid or gaseous form) whatsoever, and any device or instrument specifically designed to expel tear gas or any such other similar lachrymatory substance (whether in liquid or gaseous form), except under and in accordance with the terms of a written permit granted by the Minister responsible for matters relating to the Police Force.

4.
Potable spirits, unless in respect of each consignment of spirits there is produced a certificate of age, issued in the country of production or shipment by such official authority as may be acceptable to the Commissioner showing that the spirits have been stored in wood for a period of not less than three years:
Provided
that-
(a) the Commissioner may, in his discretion, accept in place of such certificate of age a sworn declaration to the like effect from the blender or exporter of any such spirits in respect of all shipments made within a period of twelve months from the date of such declaration;
(b) no such certificate of age or declaration shall be necessary in respect of any potable spirits which the Commissioner is satisfied area-

(i) alcholic bitters, liqueurs, cordials and similar alcoholic mixtures;
(ii) gin, geneva, hollands, schnapps, rum or any other similar potable spirits;
(iii) spirits imported for medical, industrial or scientific purposes.

5.
Postal franking in accordance with the terms of written permit granted by the Managing Director of the Kenya posts and Telecommunications corporation.

6.
Traps capable of killing or capturing any game animal, except under and in accordance with the terms of a written permit granted by the Chief Game Warden.

7.
Articles bearing Boy Scout or Girl Guide badges, tokens or emblems, except under and in accordance with the terms of a written permit granted by the Boy Scout or Girl Guide Commissioner.

8.
Sound moderators or silencers capable of being fitted to a firearm as defined in the Firearms Act, except under and in accordance with the terms of a written permit granted by the Chief Game Warden.

9.
Unwrought precious metals, and precious metals which are not manufactured or made up into any article of commerce, from Zaire, Rwanda or Burundi whether to be imported in transit or for transhipment or otherwise except under and in accordance with a written permit granted by the Minister of Finance.

10.
Used motor vehicles, unless there is, in respect of each such vehicle, a certificate of roadworthiness from an officially recognised Government agent of the country of export.

11.
Any other goods the importation of which is restricted under any international convention to which Kenya is a signatory.
PART C - PROHIBITED EXPORTS
1.
All goods the exportation of which is prohibited under this Act or any law for the time being in force in Kenya.

2.
Deleted by Act No. 9 of 1992, s. 17.

3.
Firearms and ammunition of all types and other articles having the appearance of lethal weapons exported by post.
PART D - RESTRICTED EXPORTS
1.
All goods the exportation of which is regulated under this Act or of any law for the time being in force in Kenya.

2.
The following goods shall not be exported in vessels of less than two hundred and fifty tons register-
(a) warehoused goods;
(b) goods under drawback;
(c) goods for transhipment.

3.
Deleted by Act No. 5 of 1998, s. 16.
NINTH SCHEDULE
[Section 145.]
PRIVILEGED INTERNATIONAL ORGANISATIONS AND PERSONNEL
United Nations Organization (of which the United Nation Children? Emergency Fund and the united nations Fund are integral parts) or any of the following-
(1) The International Labour organization;
(2) The Food and Agricultural Organization of the United Nations;
(3) The United Nations Educational, Scientific and Cultural Organization;
(4) The International Civil Aviation Organization;
(5) The World Health Organization;
(6) The World Meteorological Organization;
(7) The Universal Postal Union;
(8) The International Telecommunications Union;
(9) The International Atomic Energy Agency;
(10) The United Nations Development Programme;
(11) The United Nations High Commission for Refugees;
(12) The United Nations Environment Programme;
(13) The International Bank for Reconstruction and Development;
(14) The European Economic Community;
(15) The Arab League;
(16) The Organization of African unity;
(17) The United States Agency for International Development;
(18) The Regional Centre for Services in Mapping and Surveying;
(19) The Economic Commission for Africa;
(20) The Desert Locust Control Organization of Eastern Africa;
(21) The International Red Locust Control Organization for Central and Southern Africa;
(22) The United Nations Information Centre;
(23) United Nations Industrial Development Organization;
(24) The United Nations Organization on Human Settlement.
TENTH SCHEDULE
[Section 3.]
DECLARATION BY OFFICER
ELEVENTH SCHEDULE
[Section 5, Act No.9 of 1992, Sect 18, L.N. 334/1994,
Act No.6 of 1994, s. 17, L.N. 386 of 1994, Act No.8 of 1995, s. 5,
Act No.13 of 1995, s. 53 (cannot be effected), L.N. 315/1996 (cannot
be effected), s. 117.]
VARIABLE IMPORT DUTIES
The goods specified in the Schedule to this Order shall be liable to variable import duty at a rate of any element of subsidy as determined by the Minister arising in the importation of the goods into Kenya, where it appears to the Minister that the goods have been dumped in accordance with sections 125 and 126 of the Act.
SCHEDULE