The Salient Features of the Proposed Traffic (Amendment) Act, 2012

The Salient Features of the Proposed Traffic (Amendment) Act, 2012 

Please note that there is a proposal to amend the Traffic Act through the Traffic (Amendment) Act, 2012.   The amendment bill has already been proved by the Cabinet and is awaiting debate in Parliament.

Objects of the Amendment Bill  

The objects of the proposed new regulations are as follows:-

(i)      To amend the Traffic Act (Cap.403) to vest ownership of motor identification plates on the Kenya Revenue Authority and to require surrender of the plates to the Registrar of Motor Vehicles once a motor vehicle is transferred from one person to another.

(ii)      To enhance the penalties for various traffic offences in order to deter commission of those offences and consequently minimize loss of lives on Kenyan roads.

(iii)    To abolish the Traffic Police Department in order to vest enforcement of traffic laws and regulations on all police officers.

Key Highlights of the Traffic Rules 

(a)      The Administrative Unit of the Kenya Police Service known as the Traffic Department would be scrapped and all police officer will be mandated to enforce traffic rules and regulations. 

(b)        All motor registration number plates will be owned by the Kenya Revenue Authority (KRA).

(c)       In light of (b) above, if the ownership of a vehicles changes, the registration number plates must be surrendered to the registrar of motor vehicles.  Failure to comply with this rules will attract a fine not exceeding Kenya Shillings Thirty Thousand (KShs. 30,000/-) on conviction.

(d)       An identification number plate shall become invalid if the insurance cover of a motor vehicle to which it relates expires and is not renewed within thirty (30) days from its expiry date.  Owners of the offending vehicles shall be required to surrender the identification number plates to KRA in failure therefore be liable for criminal sanctions.

(e)       All licensed motor vehicle drivers shall be required to undergone mandatory eye tests every three (3) years, and a medical practitioner's report will need to be presented to KRA when one is applying for the renewal of the licence.   Anyone who fails to comply with this requirement will be disqualified from holding a driving licence for at a period not exceeding three (3) years.

(f)          Driving under the influence of any substance would attract a penalty of ten (10) years in jail or a minimum of Kenya Shillings Five Hundred Thousand (KShs.500,000/-) fine, or both.

(g)        Causing death through reckless or dangerous driving shall be a gross criminal offence and on conviction, the courts will be at liberty to convict offenders to life imprisonment.  

(h)         Unauthorised driving of a public service vehicle shall attract a penalty of ten (10) years in jail or a minimum of Kenya Shillings Five Hundred Thousand (KShs. 500 000/-)  in fine, or both.

(i)       Overlapping, driving on pavements and pedestrian walkways or using petrol stations to avoid traffic shall land an offender a jail term of at least three (3) months on conviction or a fine of at least Kenya Shillings Thirty Thousand (KShs. 30 000/-), or both such imprisonment term and fine.

(j)         In case of violation of the prescribed speed limits, on conviction, an offender shall be liable to have their licence cancelled for at least three years.

(k)        The yearly licences have been scrapped and all licences shall be issued for a term of three (3) years.

(l)       The Inspector General of Police shall be required to designate areas where police are allowed to erect roadblocks.

(m)      There will be road signs erected next to traffic signs showing the prescribed speed limits.

(n)      Passenger Service Vehicles’ (PSV) drivers and conductors would be required to wear badges and blue and maroon coloured uniforms respectively.  In addition, the PSV drivers would be required to do a compulsory competence test every two (2) years.

(o)      All Motorcycles riders shall be required to take out a third party insurance policy and must wear helmets and reflector jackets.  Riders shall not be allowed to allow ferry more than one (1) passenger at a time.

It is expected that when the new regulations are enacted in to law, they will help in streamlining the transport sector and reduce road carnage in Kenyan roads.

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Copyrights Protection under Kenyan Laws

The Copyright Act, (Act No. 12 of 2001), is the main legislation dealing with administrative and enforcement structures and mechanisms for copyright protection and related rights in Kenya.  It came into force on 1st February, 2003.
The main features of the Copyright Act, inter alia, include:-

1.  The Establishment of the Kenya Copyright Board (Kecobo), which is the body mandated with the overall administration and enforcements of copyright as well as the related rights.  Kecobo has copyright inspectors and special prosecutor who are mandated to investigate and prosecute copyright infringement cases.
2.  Moreover, Kecobo has introduced the anti piracy security device which are used to identify the legitimate products especially in the audio and audio-visual works. This provision is intended to help in the identification of works.  Trading in works without the anti piracy security device amounts to an offence.  Kecobo is also mandated to licence and supervise the activities of the collective management societies (also known as the Reprographic Rights Organisation) provided for in the Act. These include, the Music copyright Society of Kenya (MCSK) which is a body mandated to collect royalties in public performance and broadcasting on behalf of its members and distribute the same to members.  These also include Kenya Reprographic Rights Organization (KOPIKEN), which seeks to protect and promote authors and publishers of literary works. Kecobo works with other related government agencies like the Kenya Revenue Authority and the Anti- Counterfeit Agency to ensure proper systems are put in place for copyright and related rights protection.  
3.  The Act grants the owner of copyrighted work exclusive economic and moral rights over the works. These include exclusive rights of the reproduction or distribution of copyrights rights for any economic gain, exclusive rights of communication or broadcasting of the work to the public, and exclusive rights to import and export the copyrighted work.
4.  The Act has both civil and criminal remedies and sanctions for the enforcement of copyright and related rights. Thus, the owner of copyrighted work is mandated by the Act to institute civil suit for a claim of compensatory damages against the offender for illegal reproduction or use of the work. Under the criminal sanctions, copyright is infringed where one is found in possession of at least two counterfeit copies of the copyrighted work.    The word “copy” in the Act is defined to mean a reproduction of a work in any manner or form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium, by computer technology or any other electronic means.   
5. There are specific provisions for Anton Piller (search and seizure) orders in order to ensure protection of evidence and where the offender is likely to abscond.
6. The Act outlaws activities that are likely to encourage counterfeiting and piracy such as circumvention of technological devices used to protect copyright rights or the removal of rights management systems.

The maximum fine payable under the Act is Kenya Shillings 800 000/= (about US$ 10 000) and a maximum jail term of 10 years.

The Act provides for the following exemptions- also known as “fair dealing’:
Utilization of copyrighted works for purposes of scientific research, private use, review or reporting of current events subject to acknowledgement of the source;The inclusion of a collection of literary or musical works of not more that two passages from the work in question for use in registered school or university;
Reproduction or a work by or under the direction or control of the government or by public libraries, non-commercial documentation centres and scientific institutions for public use;
Computer programmes can be reproduced for purposes of correction or error, for back-up and for customisation or for purpose that is not prohibited under any licence or agreement whereby the person is permitted to use the programme or software.

Categories of copyright works to be registered by Kecobo include:

•     Musical;
•     Audio Visual;
•     Literary like charts tables and computer programmes;
•     Artistic;  
•     Sound recording ;and
•     Broadcasts.

Please note that literary, musical or artistic works is eligible for copyright protection if it meets the following conditions:-

(a) The work must be original;
(b) The work must be in written, recorded or in material form (that is, it      should neither be oral nor verbal in nature).

The Procedure for the Copyright Registration in Kenya
Only original literary, artistic, musical, audio visual works, sound recordings and broadcasts are eligible for copyright protection.

For any of the above works to be eligible for registration:

1. The work must of original authorship that is, not copied from somebody else.  
2. Application for registration must be in the prescribed form which can be obtained from Kecobo. The  applicant will be required to fill in  his name, physical and postal addresses and the category of the works- either literally, artistic, musical or audio visual.;
3. The applicable must attach two copies of the works, where applicable, to the application;
4. The work must be in tangible form including digital form e.g., books, cassettes, CD, flash disc, VCD,CD or DVCD; and
5. The duly completed application form must be witnessed by a commissioner for oaths and accompanied by the required fees of about KShs. 600/-.

A agent employed to register work  will be require to produce identification documents as well as letter of authority to act as agent from the original owner of the work.

On receipt of the application, Kecobo may, after making such inquiry as it may deem fit, enter the particulars of the work in a Copyright Register.The Certificate of Registration will then be issued to the author after registration.
The whole process takes about one month to two months.
Copyright protects work for duration of fifty (50) years after the death of the author. After this period, anybody is free to reproduce it without permission from the author or publisher. In case of joint authorship, fifty (50) years aforesaid counts from the date of death of the last author. 
The sound recordings and broadcasts are protected for 50 years after the end of the year in which the recording was made, or the broadcast took place, respectively.
Kenya also a signatory to the following treaties on copyright rights protection:

•     The Berne Convention, 1886;
•     The Rome Convention, 1961;
•     WIPO Performances and Phonogrammes Treaty, 1996;
•     WIPO Copyright Treaty, 2001; and
•     The Trade Related Aspect of Intellectual Property (TRIPS), 1994.

Controlled Tenancies under the Kenyan Law

Controlled tenancies are tenancy defined under the Landlord and Tenant Act (Shops, Hotels and Catering Establishments Act), (Cap 301) of the Laws of Kenya (The “Act”).  

The preamble to this Act states that it is “an Act of Parliament intended to protect the tenants from the exploitation and eviction from business premises by the landlords”.  The supremacy of the Act when compared  with other statutes applicable on tenancies  stems from section 2(3) thereof which provides as follows:

Notwithstanding anything contained in any other written law requiring registration of tenancies, evidence of the tenancy may, for the purposes of this Act, be given in any proceedings, whether such tenancy is registered or not.

This section means and implies that, where there is a controlled tenancy, all other statutes relating to the matter, and in conflict with the Act, should be disregarded.

Under subsection (2) of the Act, where there tenancy agreement is not in the prescribed form, the terms and conditions set forth in the Schedule to Act will be deemed to be incorporated in the Act.

A “shop”, under the Act is defined to means: premises occupied wholly or mainly for purposes of retail or wholesale trade or business or for purposes of rendering services for money or money’s worth.

Under section 2 a “tenancy” is defined as:

a tenancy created by a lease or underlease, by an agreement of lease or underlease, by a tenancy agreement or by operation of the law, and includes a sub-tenancy but does not include a relationship between a mortgagor and mortgagee as such.

A “controlled tenancy”  is defined as:

2(1) a tenancy for a shop, hotel or catering establishment

(a) Which has not been reduced into writing; or

(b) Which has been reduced into writing and which –

(i)   is for a period not exceeding five years

(ii)  contain provision for termination, otherwise than for breach of covenant, within five years from commencement thereof; or

(iii) relates to premises specified by the Minister in a Gazette Notice to be a controlled tenancy….

Despite the above provision, a controlled tenancy cannot arise where one of the parties is government department or agency or a local authority.

Under section 4 of the Act, a controlled tenancy cannot be terminated except as provided for in the Act and for grounds specified in section 7 thereof.  Subsection (1) of this section states clearly that section 4 will take precedence over all other written laws, and even overrides the agreement of the parties.  Subsection (2) of section 4 goes on to provide that termination of a controlled tenancy or alteration of the agreed terms and conditions. 

This subsection must be read together within section 7 of the Act, which provided for the grounds which may be invoked by the landlord to terminate a controlled tenancy. 

It is important to note that the Act does not provide for grounds on which a tenant can terminate a controlled tenancy, and accordingly if the tenancy wishes to terminate a controlled tenancy he must be do in accordance with the mandatory provisions of the Act, and specifically sections 4 and 5 thereof.

Where the landlord intends to terminate a controlled tenant, he must give him a termination notice in the prescribed form (that is, FORM A in the Schedule to the Act), and come within the ambit of the specified grounds in section 7 aforesaid.   Under section 4(4) of the Act, the minimum prescribed notice period that should be given to a tenant by the landlord should not be less than two (2) months from the date of receipt thereof.

The termination notice must, inter alia, inform the tenant of his right within one (1) months from the date of the notice to communicate to the landlord of whether or not he intends to comply with the notice or oppose it. If after receiving the termination notice, the tenant does not notify the landlord of its/his willingness to comply with the notice or to refer the matter to the Tribunal in accordance with section 6, then the notice will have the effect stated in section 10 of the Act. That is, ‘from the date therein specified to terminate the tenancy....’

As stated above, the landlord must rely on one or more grounds stated under section 7 of the Act. However, a landlord should not seek to terminate the tenancy and at the same time alter terms and conditions of the tenancy.

The reason for this is that; section 4 uses a disjunctive “or” implying that a notice should not have double-barreled effect.  For instance, the landlord cannot seek to terminate the tenancy as well as increase the rent.  It must be one or the other but not both.If the tenant does not wish to vacate, it/he must submit the matter to the Tribunal within the prescribed time in accordance with section 6 of the Act.  Where the matter is referred to the Tribunal, then the tenancy will not be terminated until after a decision of the Tribunal to that effect.

However, despite such an action by the tenant, where the objection to the notice is unmeritorious, the Tribunal may make an order for possession in favour of the Landlord and order the tenant to pay rent arrears or mesne profits.

Where the tenant does not refer the matter to the Tribunal and the tenancy is terminated in accordance with section 10 discussed above, the tenant will automatically lose his ‘protected’ status at the expiry of the notice period.

Moreover, in case of such a termination, the Tribunal is debarred by law from having any legal jurisdiction in the matter. Thus, the landlord can take the possession of the premises from the tenant, if this can be done peacefully. But if the tenancy refuses to give him possession of the leased premises, the landlord will be obliged to seek eviction orders from the court.

Moreover, where the landlord permits the tenant to continue hold over after the termination of the original protected tenancy and continue to accept rent, the tenancy between the parties will resume being a protected tenancy.

Under section 4(3), where a tenant intends to give a notice to terminate or to alter terms and conditions of a controlled tenancy, the legal effect of such a notice is different from that of landlord’s notice.   Nevertheless, like the landlord’s notice, a tenant’s notice should comply with the requirements of the law.  Therefore, where a valid notice is not given, the tenancy will continue to run, even if the premises is vacated, until the giving of such notice or until the landlord re-enters the vacated premises.

Moreover, where the tenant gives the notice to terminate, he must vacate the premises at the expiry of the notice period. Failure to vacate as such would make such a tenant liable to pay double rent for the period of holding over as provided for in section 14 of the Distress of Rent Act (Cap. 293). However, it should be noted that unlike section 17 of the Distress for Rent Act of 1737 (of UK),  the Kenyan Act does not  does not provides for payment of double rent if a tenant  were to fail to vacate the premises at the determination of the lease. Double rent will therefore only apply where a tenant after giving the termination notice, refuses or fails to vacate the premises at the expiry of the notice period.

With regard a notice to alter the terms and conditions of a controlled tenancy, is important to note that such a tenant’s notice does not have a reciprocal effect similar to a landlord’s notice as under section 10 of the Act; of altering the terms and conditions or increasing the rent by operation of the law at the expiry of the notice period, if the landlord does not refer the matter to the Tribunal.  Indeed, courts have held that with regard to alteration of terms and conditions of the tenancy or increase of rent, section of the Act 10 applies only in the event of a landlord’s notice and never in the case of a tenant’s notice.

In order to avoid coming within the ambit of the Act, most landlords insist on granting written tenancies for a term more that 5 years, e.g. 5 years and 3 months.