PART II – ESTABLISHMENT, POWERS AND FUNCTIONS OF THE AUTHORITY
3.Establishment of the Authority(1)There is hereby established an Authority to be known as the Anti-Counterfeit Authority.(2)The Authority is a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—(a)suing and being sued;(b)taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;(c)borrowing and lending money;(d)charging fees for services rendered by it;(e)entering into contracts; and(f)doing or performing all such other things or acts necessary for the proper performance of its functions under this Act, which may lawfully be done by a body corporate. 4.HeadquartersThe headquarters of the Authority shall be in Nairobi. 5.Functions of the AuthorityThe functions of the Authority shall be to—(a)enlighten and inform the public on matters relating to counterfeiting;(b)combat counterfeiting, trade and other dealings in counterfeit goods in Kenya in accordance with this Act;(c)devise and promote training programmes on combating counterfeiting;(d)co-ordinate with national, regional or international organizations involved in combating counterfeiting;(da)advise the government through the Cabinet Secretary on policies and measures concerning the necessary support, promotion and protection of intellectual property rights as well as the extent of counterfeiting;(db)to carry out inquiries, studies and research into matters relating to counterfeiting and the protection of intellectual property rights.(e)carry out any other functions prescribed for it under any of the provisions of this Act or under any other written law; and(f)perform any other duty that may directly or indirectly contribute to the attainment of the foregoing. 6.Board of the Authority(1)There shall be a Board of the Authority which shall consist of —(a)a Chairman appointed by the Cabinet Secretary from amongst the members appointed under paragraph (h);(b)the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or his or her representative;(c)the Principal Secretary in the ministry for the time being responsible for matters relating to finance or his or her representative;(cc)the Attorney-General or his representative;(d)deleted by Act No. 25 of 2015, Sch.;(e)the Commissioner-General of the Kenya Revenue Authority, who may be represented by the Commissioner of Customs;(f)the Managing Director of the Kenya Bureau of Standards;(g)the Chief Executive of the Kenya Association of Manufacturers or a representative, being a person who meets the qualifications set out in paragraph (h); and(h)two members appointed by the Cabinet Secretary, not being public officers, and who hold a degree from a university recognised in Kenya and have at least ten years’ experience in matters relating to—(i)intellectual property rights;(ii)consumer protection, or(iii)trade.(2)A person shall not qualify to be appointed as Chairman under subsection (1)(a) unless such person is a holder of a degree in law or science from a recognised institution, and has at least five years working experience in the field of trade, industry or intellectual property. 7.Powers of the BoardThe Board shall have all powers necessary for the proper performance of its functions under this Act and in particular, but without prejudice to the generality of the foregoing, the Board shall have power to—(a)formulate, with approval of the Minister, policies pertaining to the organisation, management and implementation of the objects of the Authority;(b)control, supervise and administer the assets of the Authority in such manner as best promotes the purposes for which the Authority is established;(c)determine the provisions to be made for capital and recurrent expenditure and for reserves of the Authority;(d)receive any grants, gifts, donations or endowments on behalf of the Authority and make legitimate disbursements therefrom;(e)enter into association with such other bodies or organizations within or outside Kenya as the Board may consider desirable or appropriate and in furtherance of the purposes for which the Authority is established;(f)open a banking account or banking accounts for the funds of the Authority; and(g)invest any funds of the Authority not immediately required for its purposes in the manner provided for in section 21. 8.Conduct of business and affairs of the Board(1)The conduct and regulation of the business and affairs of the Board shall be as provided for in the Schedule.(2)Except as provided for in the Schedule, the Board may regulate its own procedure. 9.Remuneration of Board membersThe members of the Board shall be paid such remuneration, fees, allowances and disbursements for expenses as may be approved by the Minister for the time being responsible for finance, on the recommendation of the Board. 10.Executive Director(1)There shall be an Executive Director of the Authority who shall be appointed by the Board, and whose terms and conditions of service shall be determined by the Board in the instrument of appointment or otherwise in writing from time to time.(2)A person shall not be appointed as an Executive Director under this section unless such person—(a)has a degree in law, science, information technology or business administration from a recognized institution and has at least three years working experience in the relevant field; or(b)has at least seven years working experience in matters relating to trade or industry.(3)The Executive Director shall —(a)be an ex officio member of the Board but shall have no right to vote at any meeting of the Board;(b)be the secretary to the Board;(c)subject to the directions of the Board, be responsible for the day to day management of the affairs of the Authority;(d)be responsible to the Board generally for supervision of inspectors; and(e)be responsible to the Board generally for the implementation of this Act. 11.Staff of the AuthorityThe Board may appoint such officers, agents and other staff of the Authority as are necessary for the proper discharge of its functions under this Act or any other written law, upon such terms and conditions of service as the Board may determine. 12.The common seal(1)The common seal of the Authority shall be kept in the custody of the Executive Director or of such other person as the Board may direct, and shall not be used except upon the order of the Board.(2)The common seal of the Authority, when affixed to a document and duly authenticated, shall be judicially and officially noticed, and unless and until the contrary is proved, any necessary order or authorization by the Board under this section shall be presumed to have been duly given.(3)The affixing of the common seal of the Authority shall be authenticated by the signature of the Chairman of the Board and the Executive Director:Provided that the Board shall, in the absence of either the Chairman or the Executive Director, in any particular matter, nominate one member of the Board to authenticate the seal of the Authority on behalf of either the Chairman or the Executive Director. 13.Delegation by the BoardThe Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Board, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law. 14.Protection from personal liability(1)No matter or thing done by a member of the Board or by any officer, member of staff or agent of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the member, officer, employee or agent or any person acting on his directions personally liable to any action, claim or demand whatsoever.(2)Any expenses incurred by any person in any suit or prosecution brought against him in any court in respect of any act which is done or purported to be done by him under the direction of the Authority, shall, if the court holds that such act was done bona fide, be paid out of the general funds of the Authority, unless such expenses are recovered by him in such suit or prosecution. 15.Liability of the Board for damagesThe provisions of section 14 shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or by any other written law or by the failure, whether wholly or partially, of any works. 16.Liability for damage or loss on application of Act(1)Any person who suffers damage or loss caused by wrongful seizure, removal or detention of goods alleged to be counterfeit goods pursuant to a complaint laid with the Executive Director in accordance with the provisions of this Act, shall be entitled to claim compensation for the damage or loss suffered by him against the complainant:Provided that compensation shall only be paid where the complaint was false, negligent or laid in bad faith.(2)The Authority, inspector or person in charge of the relevant counterfeit goods depot shall be liable in respect of a claim mentioned in subsection (1) only if—(a)in the seizure or removal of the alleged counterfeit goods, the inspector, or, in the detention and storage of those goods, the person so in charge, depending on the circumstances, has been grossly negligent; or(b)the inspector or the person so in charge, as the case may be, in the seizure, removal, detention or storage of those goods, acted in bad faith.(3)Reference in subsection (2) (a) and (b) to an inspector or to a person in charge of a counterfeit goods depot shall be construed to include any person acting on the instruction or under the supervision of the inspector or the person so in charge, as the case may be.(3A)Notwithstanding the provisions of any other written law for the time being in force, no claim under this Act shall be brought against the Authority for any alleged damage to or loss of any goods after the expiry of a period of twelve months from the date of the seizure, removal or detention of the goods, as the case may be.(3B)The provisions of Part IV of the Government Proceedings Act shall apply mutatis mutandis to the Agency in relation to any execution of any judgment, decree or order against the Authority issued by any Court or tribunal or any other competent authority.(4)There shall be established an Intellectual Property Enforcement and Co-ordination Advisory Committee whose membership shall consist of—(a)the Principal Secretary in the Ministry for the time being responsible for matters relating to trade or a representative who shall be the chairperson; and(b)fourteen other members drawn from various agencies involved in the protection and enforcement of intellectual property rights. PART III – FINANCIAL PROVISIONS
PART IV – INSPECTION
PART V – COUNTERFEIT GOODS
PART VI – MISCELLANEOUS
SCHEDULE
PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD
