Tourist Industry Licensing Act Cap 381 - as Plain Text by MWakili

LAWS OF KENYA The TourisT indusTry Licensing AcT Chapter 381 Revised Edition 2009 (1998) Published by the National Council for Law Reporting with the Authority of the Attorney General CAP.

381 Tourist Industry Licensing [Rev.

2009 2 CHAPTER 381 TOURIST INDUSTRY LICENSING ACT arraNGeMeNt OF SeCtIONS Section 1Short title.

2Interpretation.

3Licence required for certain tourist enterprises.

4Issue of licences.

5Powers of licensing ofcer.

6Provisions concerning licences.

7Appointment of licensing ofcer.

8Power to enter and inspect land or premises.

9Appeals.

10Power to amend First Schedule.

11Fees.

12Regulations.

13Provisions additional to those of Cap.

382.

SCHEDULES Rev.

2009] Tourist Industry Licensing CAP.

381 3 CHAPTER 381 THE TOURIST INDUSTRY LICENSING ACT 1 of 1968, th 10 of 1969, Commencement: 26 January, 1968 12 of 1984, 6 of 1989, An Act of Parliament to make provision for regulating the tourist L.N.

237/1989, industry with a view to promoting its well-being and 8 of 1991, development 6 of 1994, 6 of 1996, L.N.

80/1998, 2 of 2002, L.N.

164/2002, 17 of 2006, 5 of 2007.

1.

This Act may be cited as the Tourist Industry Licensing Act.

Short title.

2.

In this Act, except where the context otherwise requires Interpretation.

10 of 1969, Sch.

this Act includes any regulations made under this Act; appointed day means such day as the Minister may appoint, by notice in the Gazette, to be the appointed day* for the purposes of section 3 (1); hotel means any premises used for the reception of guests and travellers desirous of dwelling or sleeping therein, whether or not membership of any club or society is a condition of such reception, but does not include premises so used by a members club or a charity; licence means a licence to carry on a particular regulated tourist enterprise issued under section 4; licensee means the holder of a licence; licensing ofcer means the person appointed to be licensing ofcer under section 7; members club means a club whose members for the time being are jointly entitled to its property and funds; raw materials includes any trophy, or any portion thereof, within the meaning assigned thereto by the Wild Animals Protection Act and any such trophy shall be deemed to be indigenous until the Cap.

376.

contrary is proved; st * 1 March, 1968 (L.N.

27/1968).

CAP.

381 Tourist Industry Licensing [Rev.

2009 4 regulated tourist enterprise means any of the enterprises specied in the First Schedule; Cap.

403.

vehicle has the meaning assigned to it in the Trafc Act.

Licence required 3.

(1) No person shall on or after the appointed day carry on, or for certain tourist assist in carrying on, any regulated tourist enterprise otherwise than enterprises.

under and in accordance with the terms of a licence issued to him and for the time being in force: Provided that this subsection shall not apply (i) to a person employed by a licensee, other than a person whom the Minister has declared in writing to be a person whose employment in the tourist industry is undesirable; or (ii) where the licensee is a limited company, to a director of that company, in respect of any act done by him in the course of his employment or Cap.

63.

directorship, as the case may be, though without prejudice to section 23 of the Penal Code.

(2) Any person who contravenes subsection (1) of this section shall be guilty of an offence and liable to a ne not exceeding ten thousand shillings or to imprisonment for a term not exceeding one year, or to both such ne and such imprisonment.

(3) In subsection (1) of this section, carrying on an enterprise includes negotiating, soliciting, canvassing or accepting business for that enterprise and engaging in correspondence with a person who may become a customer of that enterprise, or with the agent of such a person, concerning business of that enterprise.

Issues of 4.

(1) Any person who desires to obtain a licence, or to obtain licences.

the variation of a licence already issued to him, shall make application to the licensing ofcer in the prescribed form, and shall furnish such information as the licensing ofcer may reasonably require.

(2) The licensing ofcer shall have power at his discretion to issue a licence or to refuse to issue a licence, or to vary or to refuse to vary a licence, and may in a licence impose such conditions as he thinks desirable in the interests of the tourist industry as a whole.

(3) In the exercise of his functions under this Act, the licensing ofcer shall be guided by the consideration of promoting the well-being and development of the tourist industry as a whole.

Rev.

2009] Tourist Industry Licensing CAP.

381 5 (4) Any person who makes or causes to be made, either orally or in writing, any declaration or representation which he knows or has reason to know to be false for the purpose of obtaining a licence or of obtaining the variation of a licence shall be guilty of an offence and liable to a ne not exceeding ve thousand shillings or to imprisonment for a term not exceeding six months, or to both such ne and such imprisonment.

5.

(1) A licensing ofcer shall have power Powers of (a) during the subsistence of a licence, to vary or cancel the licensing ofcer licence for good cause, on the application of the licensee or of his own accord: Provided that no licence shall be varied or cancelled without giving the licensee an opportunity to show cause why the licence should not be varied or cancelled; (b) to inquire into complaints against licensees.

(2) Where (a) a person who at the commencement of this Act was carrying on a regulated tourist enterprise is refused a licence; or (b) a person who is or has been a licensee is refused a licence or has his licence cancelled, the licensing ofcer may issue to that person a permit to carry on the regulated tourist enterprise in question for such period, not exceeding six months, as the licensing ofcer may consider necessary to enable the person to full his commitments which are outstanding at the time of refusal or cancellation, and such a permit shall be as effectual as a licence during the period of its currency.

6.

(1) A licence shall be valid for a period of one calendar year Provisions from the date of issue.

concerning licences.

2 of 2002, Sch.

(2) A licence shall not be capable of being transferred from the licensee to any other person, and any person who attempts or purports to transfer a licence shall be guilty of an offence.

(3) On cancelling a licence, the licensing ofcer shall forthwith notify the licensee thereof, and thereupon the licensee shall forthwith surrender his licence to the licensing ofcer, and if without reasonable excuse he fails to do so he shall be guilty of an offence.

(4) Any person who is guilty of an offence under this section CAP.

381 Tourist Industry Licensing [Rev.

2009 6 shall be liable to a ne not exceeding two thousand shillings or to imprisonment for a term not exceeding two months, or to both such ne and such imprisonment.

Appointment of 7.

(1) The Minister may, for the purposes of this Act, by notice in licensing ofcer.

the Gazette appoint one or more persons who are public ofcers to be licensing ofcers for the purposes of this Act, either for the whole of Kenya or for a specied area.

(2) The Minister may give to any licensing ofcer directions of a general or special character as to the exercise and performance of his powers and duties under this Act which he may consider reasonable in the interests of the proper regulation of the tourist industry (including the waiving of fees for any period where he is satised that it is in the interests of the well-being and development of the tourist industry) and the licensing ofcer shall give effect to any directions so given.

Power to enter and 8.

(1) It shall be lawful for a licensing ofcer, or any person so inspect land or authorized in writing by the Minister, or any police ofce of or above premises.

the rank of Assistant Inspector, to 6 of 1989, Sch.

(a) stop or seize any vehicle or vessel which he has reasonable grounds for suspecting to be or to contain evidence of an offence under this Act; (b) enter without warrant and inspect any premises on which he has reason to believe that a regulated tourist enterprise is being carried on, to see whether this Act is being complied with, and (i) examine and take copies of any books, accounts and documents found in those premises relating to or appearing to relate to any regulated tourist enterprise; (ii) seize any document or account found on those premises which he has reasonable grounds for suspecting to be or to contain evidence of an offence under this Act; (c) require any person who appears to be engaged in carrying on or employed in a regulated tourist enterprise on those premises to render such explanation and give such information relating to that enterprise as he may reasonably require in the performance of his duties; (d) require any person who appears to be engaged in carrying on a regulated tourist enterprise, by notice in writing to that person, to produce to him, at such time and place as he Rev.

2009] Tourist Industry Licensing CAP.

381 7 species, all or any of the books, accounts and documents relating or appearing to relate to the enterprise.

(2) Premises shall not be entered forcibly under subsection (1) (b) except by or under the direction of a police ofcer of or above the rank of Assistant Inspector, unless the licensing ofcer or the person authorized in writing by the Minister has reasonable cause to believe that the delay occasioned in summoning such police ofcer would, or would tend to, defeat the purposes of this section.

(3) Any person who (a) resists, hinders or obstructs any person acting in pursuance of subsection (1); or (b) fails to comply fully and truthfully with a requirement made of him under subsection (1), shall be guilty of an offence and liable to a ne not exceeding ve thousand shillings or to imprisonment for a term not exceeding six months or to both such ne and such imprisonment.

(4) At the time when anything is seized under subsection (1) of this section, the person in whose custody or possession it then is shall be given a written receipt for it.

(5) Anything seized under this section shall be brought before a court and section 121 of the Criminal Procedure Code shall apply as Cap.

75 if it had been seized and brought before a court under that Act, but if no prosecution is brought in respect of an offence to which the seizure relates such thing shall be returned to the person from whom it was taken.

9.

(1) There is hereby established an appeal board, which shall Appeals.

consist of (a) the Permanent Secretary of the Ministry, who shall be chairman; and (b) one person appointed by the Minister who has knowledge of the tourist industry; and (c) one other person appointed by the Minister.

(2) Any person whose application for a licence is refused, or whose licence is cancelled or (otherwise than at his request) varied, by a licensing ofcer may, within fourteen days after such refusal, cancellation or variation appeal in writing to the appeal board, whose CAP.

381 Tourist Industry Licensing [Rev.

2009 8 decision shall be nal.

(3) Where a person holding a current licence appeals under this section against refusal to issue a new licence or against cancellation or variation of the current licence, the current licence shall continue in force according to its terms until the appeal is dismissed or (where an appeal against refusal to issue a licence is allowed) the licence is issued.

(4) Any person who knowingly gives orally or in writing any false information to the appeals board or to any member or ofcer of the board in connexion with an appeal under this section shall be guilty of an offence and liable to a ne not exceeding one thousand shillings or to imprisonment for a term not exceeding one month, or to both such ne and such imprisonment.

(5) A member of the appeal board, and a person taking part in an appeal, shall not be liable in damages in respect of anything done by him in the course of or in connexion with the appeal.

(6) In this section, a reference to a licence being refused includes a reference to a licence being issued or offered on conditions (other than conditions specied in the prescribed form of licence and conditions prescribed by regulations made under the Act) which are unacceptable to the applicant.

10.

The Minister may, by order published in the Gazette, amend Power to amend First the First Schedule.

Schedule.

12 of 1984, Sch.

Fees.

11.

(1) The fees specied in the Second Schedule shall be payable 12 of 1984, Sch.

for the acts and matters specied in relation thereto in that Schedule.

(2) The Minister may, by order published in the Gazette, amend the Second Schedule.

Regulations.

12.

(1) The Minister may make regulations generally for the better carrying out of the provisions and purposes of this Act.

(2) Without prejudice to the generality of subsection (1); regulations under that subsection may make provision for (a) the forms of licences; (b) the conditions subject to which licences shall be issued, which may include the employment as pilots or drivers of only such persons as hold the prescribed qualications; Rev.

2009] Tourist Industry Licensing CAP.

381 9 (c) the manner of cancellation of licences; (d) the procedure for appeals and of the appeal board; and (e) requiring persons to supply information.

13.

The provisions of this Act are in addition to and not in Provisions derogation of those of the Kenya Tourist Development Corporation Act.

additional to those of Cap.

382.

FirsT scheduLe 8 of 1991,s.

79, 6 of 1994, s.

77, reGulated tOurISt eNterprISeS L.N.

80/1998, 17 of 2006, s.

107, A licence granted under classes AB or C shall entitle the 5 of 2007, s.

23.

holder to carry out all the enterprises set out in the respective class.

ClaSS a eNterprISeS Enterprises (whether carried on alone or in conjunction with some other enterprise) connected with the tourist industry in Kenya (other than the excepted enterprises), and falling within one or more of the following classes: A.1.

Tour/Safari Operators.

A.2.

Motor Vehicles Hire.

A.3.

Local Air Charter Companies.

A.4.

Travel Agency (I.A.T.A.

appointed agents).

A.5.

Water Sports.

A.6.

Balloon Operators.

A.7.

Boat Excursions.

A.8.

Game Ranches.

ClaSS B eNterprISeS Enterprises (whether carried on alone or in conjunction with some other enterprise) connected with the tourist industry in Kenya (other CAP.

381 Tourist Industry Licensing [Rev.

2009 10 than the excepted enterprises), and falling within one or more of the following classes: B.1.

(Deleted by 17 of 2006, s.

107.) B.2.

(Deleted by 17 of 2006, s.

107.) B.3.

Game Fishing Outtters.

B.4.

Proprietors of enterprises offering camps and camping equipment for hire.

B.5.

(Deleted by 17 of 2006, s.

107.) B.6.

Nature Parks.

B.7.

Amusement Parks.

B.8.

Non-citizen tour leaders/guides.

ClaSS C eNterprISeS Enterprises (whether carried on alone or in conjunction with some other enterprise) connected with the tourist industry in Kenya (other than the excepted enterprises), and falling within one or more of the following classes: C.1.

(Deleted by 17 of 2006, s.

107.) C.2.

Local traditional boat operators.

C.3.

Professional safari photographers.

C.4.

(Deleted by 17 of 2006, s.

107.) C.5.

(Deleted by 17 of 2006, s.

107.) C.6.

Private zoos.

C.7.

(Deleted by 17 of 2006, s.

107.) C.8.

Citizen tour leaders/guides.

exCepted eNterprISeS Enterprise being either: Rev.

2009] Tourist Industry Licensing CAP.

381 11 (a) An undertaking operated by the Government or the Community; or (b) an undertaking consisting of a taxi-cab within the meaning of the Trafc Act, plying for hire within the area of jurisdiction Cap.

403.

of the Local Authority under whose by-laws it is registered.

second scheduLe 8 of 1991, s.

79, 6 of 1994, s.

77, L.N.

80/1998, FeeS L.N.

164/2002.

KSh.

1.

On the grant of a licence in respect of a class A regulated tourist enterprise the licensee shall pay a fee of 8,000 2.

On the grant of a licence in respect of a class B regulated tourist enterprise the licensee shall pay a fee of 6,000 3.

On the grant of a licence in respect of a class C regulated tourist enterprise the licensee shall pay a fee of 2,000 4.

On the grant of a licence in respect of a class A (1, 2, 3, 7) and B (1, 3, 5) regulated tourist enterprises the licensee shall pay for a tourist vehicle sticker a fee of 200 5.

On the grant of a temporary licence in respect of overland vehicles with foreign registration numbers the licensee shall pay a fee of US$ 300.

In this Schedule references to class A regulated tourist enterprises, class B regulated tourist enterprises and class C regulated tourist enterprises are to the classes of these names described in the First Schedule.

CAP12.

381 Tourist Industry Licensing [Rev.

2009 [Subsidiary] SUBSIDIARY LEGISLATION L.N.

28/1968, Regulations under section 12 L.N.

236/1989, L.N.

79/1998, L.N.

163/2002.

THE TOURIST INDUSTRY LICENSING REGULATIONS Citation.

1.

These Regulations may be cited as the Tourist Industry Licensing Regulations.

Application for 2.

An application for a licence or for the variation of a licence shall be licence.

in Form 1 in the Schedule.

Form of licence.

3.

A licence shall be in Form 2 in the Schedule.

Conditions.

4.

Licences shall be issued for carrying on any operation, in designated L.N.

79/1998.

areas only and shall be subject to the conditions set our in Form 2 in the Schedule.

Provided that no licence shall be issued to class A, class B and class C enterprises for carrying on any operation, activity or enterprise in the areas reserved as beaches, except to persons letting out vessels whether manned or not.

L.N.

163/2002.

5.

(1) Every vehicle involved in any regulated tourist enterprise shall have a tourist vehicle sticker.

(2) Notwithstanding the provisions of paragraph (1), every overland vehicle with foreign registration that enters the country for purposes of tourism, shall be issued with a temporary licence.

(3) A temporary licence shall be valid for a period of six months from the date of issue.

Secretary of appeal 6.

The Minister shall, by notice in the Gazette, appoint a public ofcer board.

to be the secretary of the appeal board.

Mode of appeal.

7.

(1) A person appealing under section 9 of the Act shall, not later than seven days after the end of the period allowed for appealing deliver (a) to the secretary of the appeal board, a written statement of the grounds of the appeal, and of all the facts and representations with which he wishes to support his appeal; and (b) to the licensing ofcer against whose decision he is appealing, a copy of that statement.

(2) The licensing ofcer shall, within fourteen days after receiving the copy of the written statement delivered to him under paragraph (1) of this regulation, deliver (a) to the secretary of the appeal board, a written answer to the written statement; Rev.

2009] Tourist Industry Licensing CAP.

381 13 [Subsidiary] (b) to the appellant or his agent, a copy of the answer.

(3) The appellant may, within ten days after receiving the copy of the answer, deliver to the secretary of the appeal board a reply to the answer (delivering a copy to the licensing ofcer), and where he does so the licensing ofcer may, within ten days after receiving the copy, deliver to the secretary of the appeal board a rejoinder to the reply (delivering a copy to the appellant or his agent).

8.

(1) The appeal board shall proceed with the hearing of an appeal as Hearing of appeal.

soon as possible after the delivery of documents provided for by regulation 7 has been completed.

(2) On the hearing of the appeal, the appeal board shall consider the documents delivered to the secretary under regulation 7, but neither the appellant nor the licensing ofcer nor any person on their behalf shall be heard at the hearing: Provided that the appeal board may call either the appellant or the licensing ofcer, to speak or to call witnesses at the hearing if it considers it necessary for the determination of the appeal, but where it does so call one party it shall also invite the other party to attend and to speak and to cross-examine any witness called.

(3) In recording its decision, the appeal board shall if possible, include a recommendation to the licensing ofcer as to the length of the period for which a permit should be issued under section 5 (2) of the Act.

9.

The secretary of the appeal board shall notify the appellant and the Notication of result of appeal.

licensing ofcer of the decision of the board within fourteen days after the date of the decision.

CAP14.

381 Tourist Industry Licensing [Rev.

2009 [Subsidiary] SCHEDULE FOrM 1 applICatION FOr lICeNCe,Or FOr VarIatION OF lICeNCe, tO Carry ON a reGulated tOurISt eNterprISe tO: the lICeNSING OFFICer, 1.

Name of regulated tourist enterprise (if a limited company please stale country and year of registration).

.

.

2.

Address of principal premises Postal Address.

Geographical Address.

3.

Exact location of any other premises (state whether owned or rented, and the nature, e.g.

ofce, garage, stores).

.

.

.

.

.

4.

Full name(s) of proprietor or proprietors, or managing director if a limited company.

.

.

.

.

5.

Postal and residential address(es) of person(s) named at 4 above.

.

.

.

6.

Age, country of birth and present nationality of persons named at 4 above.

.

.

.

.

.

7.

If a hunting safari enterprise, the names of all permanently employed professional hunters.

.

.

.

.

.

Rev.

2009] Tourist Industry Licensing CAP.

381 15 [Subsidiary] SCHEDULE (Contd) 8.

The exact kinds of regulated tourist enterprise in respect of which this application is made.

.

.

.

.

.

9.

Does, or will, the enterprise receive tourists direct from outside Kenya?.

10.

If the answer to 9 above is Yes, please state the approximate number of tourists expected to be so received during the 12 months following the date of this application.

.

11.

Name(s) and address(es) of all banks with which the enterprise deposits money.

.

.

.

12.

If this application is for the variation of an existing licence, the details of the variation required, and the reasons.

.

.

.

.

13.

If a licence has been held previously, the reasons for any material difference between the particulars given in the two applications.

.

.

.

I hereby apply for a Licence/the Variation of Licence to carry on the regulated tourist enterprise named at 1 above at the premises described at 2 and 3 above.

I declare that the information given in this application is true and complete in all respects.

I have read and understand section 4 (4) of the Act, which is printed below.

.

(Signature of person named at 4 above) Date.

CAP16.

381 Tourist Industry Licensing [Rev.

2009 [Subsidiary] SCHEDULE (Contd) Section 4 (4) of the Tourist Industry Licensing Act Any person who makes or causes to be made, either orally or in writing, any declaration or representation which he knows or has reason to know to be false for the purpose of obtaining a licence or of obtaining the variation of a licence shall be guilty of an offence and liable to a ne not exceeding ve thousand shillings or to imprisonment for a term not exceeding six months, or to both such ne and such imprisonment.

FOrM 2 lICeNCe tO Carry ON a reGulated tOurISt eNterprISe L.N.

79/1998.

ClaSS eNterprISe LICENCE is hereby granted to:.

.

to carry on the following regulated tourist enterprise Name of regulated tourist enterprise.

.

designated area of trade.

.

Class of regulated tourist enterprise.

.

on condition that (a) the licensee shall report in writing to the licensing ofcer without delay (i) any occurrence which brings death or injury to a tourist; (ii) any major disruption of the itinerary of a tourist, being a tourist taking part in a tour with which the licensee is concerned; (b) the licensee shall not directly or indirectly increase any price which at the date of coming into operation of these Regulations he charges or holds himself out as charging, unless he has given to the licensing ofcer, by letter sent to him by registered post, at least twenty-eight days previous notice of his intention to increase the price; (c) the licensee shall maintain insurance for an amount not less than 20,000, valid for the whole period of every hunting safari with which he is concerned, against Rev.

2009] Tourist Industry Licensing CAP.

381 17 SCHEDULE (Contd) [Subsidiary] (i) any liability which he may incur towards a client of his; and (ii) any liabilities which a client of his may incur towards any person, in the course of the safari; (d) the licensee shall carry on the said regulated tourist enterprise the designated area of trade.

(e) the licensee shall comply at all times and in all respects with regulation 5 of the Tourist Industry Licensing Regulations, so far as it is applicable to his regulated tourist enterprise.

.

.

.

.

.

This Licence is valid for a period of one year from the date of issue, unless it is previously cancelled.

.

Date.

Licensing Ofcer The reguLATed TourisT enTerPrises (chArTer L.N.

119/1969.

PiLoTs) reguLATions 1.

These Regulations may be cited as the Regulated Tourist Enterprises (Charter Pilots) Regulations.

2.

No licence to carry on, or assist in carrying on, the enterprise of an airline based in Kenya accepting tourists as aircraft passengers other than an airline which operates exclusively on scheduled international air routes and does not carry on any tourist activities in Kenya shall be issued otherwise than in accordance with the conditions following (a) at all times not less than 75 per cent of the pilots employed by or operating on behalf of such enterprise shall be holders of a commercial pilots licence with an instrument rating appropriate to the aircraft operated and shall have a minimum of 1,000 hours ying time as pilot in command with a degree of experience of local conditions satisfactory to the licensing ofcer; and (b) all other pilots employed by or operating on behalf of such enterprise shall be holders of a commercial pilots licence and shall have a minimum of 350 hours ying time as pilot in command.

.