Laws of Kenya Active 1977Trade Descriptions Act
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LAWS OF KENYA THE TRADE DESCRIPTIONS ACT CAP. 505 Revised and published by the National Council for Law Reporting with the authority of the Attorney-General as gazetted by the Government Printer www.kenyalaw.org Kenya Trade Descriptions Act Cap. 505 Legislation as at 31 December 2022 By Kenya Law and Laws.Africa. Share widely and freely. www.kenyalaw.org | [email protected] FRBR URI: /akn/ke/act/1977/9/eng@2022-12-31 There is no copyright on the legislative content of this document. This PDF copy is licensed under a Creative Commons Attribution NonCommercial ShareAlike 4.0 License (CC BY-NC- SA 4.0). This license enables reusers to distribute, remix, adapt, and build upon the material in any medium or format for noncommercial purposes only, and only so long as attribution is given to the creator. If you remix, adapt, or build upon the material, you must license the modified material under identical terms. CC BY-NC-SA includes the following elements: • BY: credit must be given to the creator. • NC: Only noncommercial uses of the work are permitted. • SA: Adaptations must be shared under the same terms. Share widely and freely. the creator. • NC: Only noncommercial uses of the work are permitted. • SA: Adaptations must be shared under the same terms. Share widely and freely. Trade Descriptions Act (Cap. 505) Contents Part I – PRELIMINARY ....................................................................................................................................................................................... 1 1. Short title .................................................................................................................................................................................................... 1 2. Interpretation ............................................................................................................................................................................................. 1 Part II – FALSE TRADE DESCRIPTIONS AND OTHER MISSTATEMENTS .......................................................................................... 2 3. Prohibition of false trade descriptions ............................................................................................................................................ 2 4. False or misleading indications as to price ................................................................................................................................... 2 5. s as to price ................................................................................................................................... 2 5. False representation as to the supply of goods or services .................................................................................................... 3 6. False or misleading statements as to services, etc. .................................................................................................................... 3 7. Prohibition of importation of goods bearing false indication of origin ............................................................................... 3 Part III – DEFINITION AND EXPANSION OF TERMS .............................................................................................................................. 4 8. "Trade description" defined .................................................................................................................................................................. 4 9. "False trade description" defined ....................................................................................................................................................... 4 10. ................................................................................................................................................ 4 10. Applying a trade description to goods .......................................................................................................................................... 5 11. Trade descriptions used in advertisements ................................................................................................................................. 5 12. Definition orders .................................................................................................................................................................................... 6 13. Marking orders ........................................................................................................................................................................................ 6 14. Provisions supplemental to sections 11 and 13 ........................................................................................................................ 7 Part IV – GENERAL PROVISIONS AS TO OFFENCES ............................................................................................................................... 7 15. S AS TO OFFENCES ............................................................................................................................... 7 15. General penalty ...................................................................................................................................................................................... 7 16. Offences by corporations .................................................................................................................................................................... 7 17. Accessories to offences committed abroad .................................................................................................................................. 7 18. Offences due to fault of other person .......................................................................................................................................... 8 Part V – DEFENCES ............................................................................................................................................................................................. 8 19. Defence of mistake, accident, etc. .................................................................................................................................................. 8 20. ................................................................................................................................................ 8 20. Innocent publication of advertisement ......................................................................................................................................... 8 Part VI – ENFORCEMENT .................................................................................................................................................................................. 8 21. Powers of inspectors ............................................................................................................................................................................ 8 22. Obstruction of inspector ................................................................................................................................................................... 10 23. Notice of tests ...................................................................................................................................................................................... 10 24. Evidence by certificate ...................................................................................................................................................................... ...................................................................................................................................................... 10 Part VII – MISCELLANEOUS .......................................................................................................................................................................... 10 25. Trade marks containing trade descriptions ............................................................................................................................... 10 26. Saving for civil rights ........................................................................................................................................................................ 11 27. Country of origin .................................................................................................................................................................................. 11 ................................................................................................................................................... 11 28. Market research experiments ......................................................................................................................................................... 11 29. Exemption of goods for export ..................................................................................................................................................... 11 30. General provisions relating to orders .......................................................................................................................................... 12 31. Disposal of goods seized ................................................................................................................................................................. 12 32. [Spent] ..................................................................................................................................................................................................... 12 ................................................................................................................................................... 12 Trade Descriptions Act (Cap. 505) Kenya TRADE DESCRIPTIONS ACT CAP. 505 Published in Kenya Gazette Vol. LXXIX—No. 29 on 15 July 1977 Assented to on 13 July 1977 Commenced on 1 April 1979 by Trade Descriptions Act Commencement [Amended by Laws of Kenya (Rectification) (No. 3) Order, 1977 (Legal Notice 298 of 1977) on 2 December 1977] [Amended by Finance Act, 2001 (Act No. 6 of 2001) on 14 June 2001] [Amended by Statute Law (Miscellaneous Amendments) Act, 2002 (Act No. 2 of 2002) on 7 June 2002] [Amended by Finance Act, 2003 (Act No. 15 of 2003) on 1 July 2003] [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022] An Act of Parliament to prohibit misdescriptions of goods, services, accommodation and facilities provided in the course of trade; to prohibit false or misleading indications as to the price of goods; to confer powers to require information or instructions relating to goods to be marked on or to accompany the goods or to be included in advertisements; and for purposes incidental to and connected with the foregoing Part I – PRELIMINARY 1. Short title This Act may be cited as the Trade Descriptions Act. 2. or purposes incidental to and connected with the foregoing Part I – PRELIMINARY 1. Short title This Act may be cited as the Trade Descriptions Act. 2. Interpretation (1) In this Act, unless the context otherwise requires— "advertisement" includes a catalogue, a circular and a price list; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to commerce; "goods" includes ships and aircraft, things attached to land and growing crops; "inspector" means an inspector of weights and measures appointed under section 54 of the Weights and Measures Act (Cap. 513); "premises" includes any place and any stall, vehicle, ship, or aircraft; "ship" includes any boat and any other description of vessel used in navigation; "trade" includes business and profession. (2) For the purposes of this Act— (a) a person exposing goods for supply, or having goods in his possession for supply, shall be deemed to offer to supply them; (b) a trade description or statement published in any newspaper, book or periodical, or in any film or sound or television broadcast, shall not be deemed to be a trade description applied or statement made in the course of a trade unless it is or forms part of an advertisement; (c) a description of goods in any customs entry shall be deemed to be a trade description. [Act No. de unless it is or forms part of an advertisement; (c) a description of goods in any customs entry shall be deemed to be a trade description. [Act No. 2 of 2002, Sch.] 1 2 of 2002, Sch.] 1 Trade Descriptions Act (Cap. 505) Kenya Part II – FALSE TRADE DESCRIPTIONS AND OTHER MISSTATEMENTS 3. Prohibition of false trade descriptions Any person who, in the course of any trade— (a) applies a false trade description to any goods; or (b) supplies or offers to supply or has in his possession for supply, any goods to which a false trade description is applied, shall be guilty of an offence. [Act No. 2 of 2002, Sch.] 4. False or misleading indications as to price (1) If any person offering to supply goods of any description gives, by whatever means, any false indication to the effect that the price at which the goods are offered is equal to or less than— (a) a recommended price; or (b) the price at which the goods, or goods of the same description, were previously offered by him, or is less than such a price by a specified amount, he shall be guilty of an offence. (2) If any person offering to supply any goods gives, by whatever means, any indication likely to be taken as an indication that the goods are being offered at a price less than that at which they are in fact offered, he shall be guilty of an offence. taken as an indication that the goods are being offered at a price less than that at which they are in fact offered, he shall be guilty of an offence. (3) For the purpose of this section— (a) an indication that goods were previously offered at a higher price or at a particular price— (i) shall be treated as an indication that they were so offered by the person giving the indication, unless it is expressly stated that they were so offered by others and it is not expressed or implied that they were, or might have been, so offered also by that person; and (ii) shall be treated, unless the contrary is expressed, as an indication that they were so offered within the preceding six months for a continuous period of not less than twenty-eight days and where, under this subparagraph, an indication is so treated, the burden of proving that the indication so treated was not false shall lie upon the person by whom the indication was given; (b) an indication as to a recommended price— (i) shall be treated, unless the contrary is expressed, as an indication that it is a price recommended by the manufacturer or producer; and (ii) shall be treated, unless the contrary is expressed, as an indication that it is a price recommended generally for supply by retail in the area where the goods are offered; (c) anything likely to be taken as an indication as to a recommended price or as to the price at which goods were previously offered shall be treated as such an indication; (d) a person advertising goods as available for supply shall be taken as offering to supply them. usly offered shall be treated as such an indication; (d) a person advertising goods as available for supply shall be taken as offering to supply them. 2 2 Trade Descriptions Act (Cap. 505) Kenya 5. False representation as to the supply of goods or services If any person, in the course of any trade, gives, by whatever means, any false indication, direct or indirect, that any goods or services supplied by him are of a kind supplied to any person he shall be guilty of an offence. 6. False or misleading statements as to services, etc. (1) It shall be an offence for any person, in the course of any trade— (a) to make a statement which he knows to be false; or (b) recklessly to make a statement which is false, as to any of the following matters— (i) the provision in the course of any trade of any services, accommodation or facilities; (ii) the nature of any services, accommodation or facilities provided in the course of any trade; (iii) the time at which, manner in which, or persons by whom, any services, accommodation, or facilities are so provided; (iv) the examination, approval or evaluation, by any person of any services, accommodation or facilities so provided; (v) the location or amenities of any accommodation so provided. or evaluation, by any person of any services, accommodation or facilities so provided; (v) the location or amenities of any accommodation so provided. (2) For the purposes of this section— (a) anything (whether or not a statement as to any of the matters specified in subsection (1) likely to be taken for such a statement as to any of those matters as would be false shall be deemed to be a false statement as to that matter; and (b) a statement made regardless of whether it is true or false shall be deemed to be made recklessly, whether or not the person making it had reasons for believing that it might be false. (3) In relation to any services consisting of or including the application of any treatment or process or the carrying out of any repair, the matters specified in subsection (1) shall be taken to include the effect of the treatment, process or repair. s or the carrying out of any repair, the matters specified in subsection (1) shall be taken to include the effect of the treatment, process or repair. (4) Where it appears to the Cabinet Secretary that it would be in the interest of persons for whom any services, accommodation or facilities are provided in the course of any trade that any expressions used with respect thereto should be understood as having any definite meanings, the Cabinet Secretary may by order in the Gazette assign such meanings to those expressions when used as, or as part of, such statements as are mentioned in this section with respect to those services, accommodation or facilities; and where such a meaning is so assigned to an expression it shall be deemed for the purposes of this Act to have that meaning when so used. (5) In this section "false" means false to a material degree and "services" does not include anything done under a contract of service. 7. Prohibition of importation of goods bearing false indication of origin (1) Subject to section 27 of this Act, no person shall import into Kenya— (a) any goods to which there is applied a trade description which contains a direct or indirect reference to any country, town or place other than the country, town or place in which the goods were manufactured or produced; or 3 irect or indirect reference to any country, town or place other than the country, town or place in which the goods were manufactured or produced; or 3 Trade Descriptions Act (Cap. 505) Kenya (b) any goods which bear the name of any manufacturer, dealer or trader in Kenya, unless there is added to that name in a conspicuous manner, the name of the country in which such goods were made or produced and the name of the manufacturer of the goods in that country. (2) Any person who imports goods in contravention of this section and any person or persons handling or dealing in such goods shall be guilty of an offence. [Act No. 2 of 2002, Sch.] Part III – DEFINITION AND EXPANSION OF TERMS 8. or persons handling or dealing in such goods shall be guilty of an offence. [Act No. 2 of 2002, Sch.] Part III – DEFINITION AND EXPANSION OF TERMS 8. "Trade description" defined (1) For the purposes of this Act, "trade description" means any indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods— (a) identity, quantity, size or gauge; (b) method of manufacture, production, processing or reconditioning; (c) composition; (d) fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical characteristics not included in the preceding paragraphs; (f) testing by any person and results thereof; (g) approval by any person or conformity with a type approved by any person; (h) place or date of manufacture, production, processing or reconditioning; (i) person by whom manufactured, produced, processed or reconditioned; (j) their being subject to an existing patent, trade mark licence or copyright licence; (k) other history including previous ownership or use. (2) The matters specified in subsection (1) shall be taken— (a) in relation to any animal, to include sex, breed or cross, fertility and soundness; (b) in relation to any semen, to include the identity and characteristics of the animal from which it was taken and measure of dilution. nd soundness; (b) in relation to any semen, to include the identity and characteristics of the animal from which it was taken and measure of dilution. (3) In this section "quantity" includes length, width, height, area, volume, capacity, weight and number. (4) Notwithstanding the previous provisions of this section, any description or mark applied in pursuance of the Seeds and Plant Varieties Act (Cap. 326), shall be deemed not to be a trade description for the purposes of this Act. [Act No. 2 of 2002, Sch.] 9. "False trade description" defined (1) For the purposes of this Act, "false trade description" includes— (a) any trade description which is false or misleading in a material respect as regards the goods to which it is applied; (b) any trade description which, though not false, is misleading, that is to say, is likely to be taken for such an indication of any of the matters specified in section 8 as would be false to a material degree; 4 g, that is to say, is likely to be taken for such an indication of any of the matters specified in section 8 as would be false to a material degree; 4 Trade Descriptions Act (Cap. 505) Kenya (c) anything which, though not a trade description, is likely to be taken for an indication of any of those matters and, as such an indication, would be false to a material degree; (d) any false indication, or anything which would be false which is likely to be taken as an indication, that any goods comply with a standard specified or recognized by, or implied by the approval of, any person, where there is no such person or no standard so specified, recognized or implied; (e) any mark made to so nearly resemble a registered trade mark or monogram as to be likely to deceive. (2) The provisions of this Act in respect of the application of a false trade description to goods shall extend to the application to goods of any such figures, words, marks or colours or arrangement or combination thereof, whether including a trade mark or not, or any name or initials as are likely to lead a person to believe that the goods are the manufacture or merchandise of some person other than the person whose manufacture or merchandise they really are, and provisions relating to goods to which a false trade description is applied shall be construed accordingly. facture or merchandise they really are, and provisions relating to goods to which a false trade description is applied shall be construed accordingly. [Act No. 2 of 2002, Sch.] 10. Applying a trade description to goods (1) For the purposes of this Act, a person shall be taken to apply a trade description to goods if he— (a) affixes or annexes it to, or in any manner makes it on, or incorporates it with— (i) the goods themselves; or (ii) anything in, on, or with which the goods are supplied; or (b) places the goods in, on, or with anything which the trade description has been affixed or annexed to, marked on, or incorporated with, or places any such thing with the goods; or (c) uses the trade description in any manner likely to be taken as referring to the goods. (2) An oral statement may amount to the use of a trade description. (3) Where goods are supplied in pursuance of a request made by reference to a trade description appearing in any sign, advertisement, invoice, business letter, business paper or other commercial communication, such goods shall for the purposes of this Act be deemed to be goods to which the trade description is applied. [Act No. 2 of 2002, Sch.] 11. nication, such goods shall for the purposes of this Act be deemed to be goods to which the trade description is applied. [Act No. 2 of 2002, Sch.] 11. Trade descriptions used in advertisements (1) Where in any advertisement a trade description is used in relation to any class of goods the trade description shall be taken as referring to all goods of the class, whether or not in existence at the time the advertisement is published— (a) for the purpose of determining whether an offence has been committed under paragraph (a) of section 3; and (b) where goods of the class are supplied or offered to be supplied by a person publishing or displaying the advertisement, also for the purpose of determining whether an offence has been committed under paragraph (b) of section 3. (2) In determining for the purposes of this section whether any goods are of a class to which a trade description used in an advertisement relates, regard shall be had not only to the form and content of the advertisement but also to the time, place, manner and frequency of its publication and all other matters making it likely or unlikely that a person to whom the goods are supplied would think of the goods as belonging to the class to which the trade description is used in the advertisement. 5 erson to whom the goods are supplied would think of the goods as belonging to the class to which the trade description is used in the advertisement. 5 Trade Descriptions Act (Cap. 505) Kenya (3) Where it appears to the Cabinet Secretary necessary or expedient in the interest of persons to whom any goods are to be supplied that any description of advertisements of the goods should contain or refer to any information (whether or not amounting to or including a trade description) relating to the goods, the Cabinet Secretary may, by order in the Gazette, impose requirements as to the inclusion of that information, or of an indication of the means by which it may be obtained, in such description of advertisements of the goods as may be specified in the order. (4) An order under subsection (3) of may specify the form and manner in which any information or indication is to be included in advertisements of any description and may make different provisions for different circumstances. (5) Where an advertisement of any goods to be supplied in the course of any trade fails to comply with any requirement imposed under subsection (3), any person who publishes the advertisement shall be guilty of an offence. 12. trade fails to comply with any requirement imposed under subsection (3), any person who publishes the advertisement shall be guilty of an offence. 12. Definition orders Where it appears to the Cabinet Secretary— (a) that it would be in the interest of persons to whom any goods are supplied; or (b) that it would be in the interest of persons by whom any goods are exported and would not be contrary to the interest of persons to whom such goods are supplied in Kenya, that any expressions used in relation to the goods should be understood as having definite meanings, the Cabinet Secretary may, by order in the Gazette, assign such meaning either— (i) to those expressions when used in the course of a trade as, or as part of, a trade description applied to the goods; or (ii) to those expressions when so used in such circumstances as may be specified in the order, and where a meaning is so assigned to an expression it shall be deemed for the purposes of this Act to have that meaning when used as mentioned in paragraph 13. a meaning is so assigned to an expression it shall be deemed for the purposes of this Act to have that meaning when used as mentioned in paragraph 13. Marking orders (1) Where it appears to the Cabinet Secretary necessary or expedient in the interest of persons to whom any goods are supplied that the goods should be marked with or accompanied by any information (whether or not amounting to or including a trade description) or instruction relating to the goods, the Cabinet Secretary may, by order in the Gazette, impose requirements for securing that the goods are so marked or accompanied, and regulate or prohibit the supply of goods with respect to which the requirements are not complied with; and the requirements may extend to the form and manner in which the information or instruction is to be given. (2) Where an order under this section is in force with respect to goods of any description, any person who, in the course of any trade, supplies or offers to supply goods of that description in contravention of the order shall be guilty of an offence. n who, in the course of any trade, supplies or offers to supply goods of that description in contravention of the order shall be guilty of an offence. (3) An order under this section may make different provisions for different circumstances and may, in the case of goods supplied in circumstances where the information or instruction required by the order would not be conveyed until after delivery, require the whole or part thereof to be also displayed near the goods. 6 instruction required by the order would not be conveyed until after delivery, require the whole or part thereof to be also displayed near the goods. 6 Trade Descriptions Act (Cap. 505) Kenya 14. Provisions supplemental to sections 11 and 13 (1) A requirement imposed by an order under section 11 or 13 in relation to any goods shall not be confined to goods manufactured or produced in any one country, or any one of a number of countries, or to goods manufactured or produced outside any one or more countries, unless— (a) it is imposed with respect to a description of goods in the case of which the Cabinet Secretary is satisfied that the interest of persons in Kenya to whom goods of that description are supplied will be sufficiently protected if the requirement is so confined; and (b) the Cabinet Secretary is satisfied that the order is compatible with the international obligations of Kenya. f the requirement is so confined; and (b) the Cabinet Secretary is satisfied that the order is compatible with the international obligations of Kenya. (2) Where any requirements with respect to any goods are for the time being imposed by an order under section 11 or 13 and the Cabinet Secretary is satisfied, on the representation of persons appearing to the Cabinet Secretary to have a substantial interest in the matter, that greater hardship would be caused to such persons if the requirements continued to apply than is justified by the interest of persons to whom the goods concerned are supplied, the power of the Cabinet Secretary to relax or discontinue the requirements by a further order may be exercised without the consultation and notice required by subsection (2) of section 30. Part IV – GENERAL PROVISIONS AS TO OFFENCES 15. General penalty A person guilty of an offence under this Act shall be liable to a fine not exceeding two million shillings or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment. [Act No. 6 of 2001, s. 64, Act No. 15 of 2003, s. 57.] 16. to imprisonment for a term not exceeding five years, or to both such fine and imprisonment. [Act No. 6 of 2001, s. 64, Act No. 15 of 2003, s. 57.] 16. Offences by corporations Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent and connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 17. h capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 17. Accessories to offences committed abroad Any person who, in Kenya, assists in or induces the commission in any other country of an act in respect of goods which, if the act were committed in Kenya, would be an offence under section 3 of this Act, shall be guilty of an offence, but only if— (a) the false trade description concerned is an indication (or anything likely to be taken as an indication) that the goods or any part thereof were manufactured, produced, processed or reconditioned in Kenya; or (b) the false description concerned— (i) consists of or comprises an expression (or anything likely to be taken as an expression) to which a meaning is assigned by an order made under paragraph (b) of section 12 of this Act; and (ii) where that meaning is so assigned only in circumstances specified in the order, the trade description is used in those circumstances. 7 Act; and (ii) where that meaning is so assigned only in circumstances specified in the order, the trade description is used in those circumstances. 7 Trade Descriptions Act (Cap. 505) Kenya 18. Offences due to fault of other person Where the commission by any person of an offence under this Act is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceeding are taken against the first-mentioned person. Part V – DEFENCES 19. Defence of mistake, accident, etc. (1) In any proceedings for an offence under this Act it shall, save as hereinafter provided, be a defence for the person charged to prove— (a) that the commission of the offence was due to a mistake, or to reliance on information supplied to him, or to the act or default of another person, or to an accident or other cause beyond his control; and (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or any person under his control. he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or any person under his control. (2) Where a defence under subsection (1) involves the allegation that the commission of the offence was due to the act or default of another person or to information supplied by another person, the person charged shall not, without the leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession. (3) In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied, it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods. 20. th reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods. 20. Innocent publication of advertisement In proceedings for an offence under this Act committed by the publication of an advertisement, it shall be a defence for the person charged to prove that he is a person whose business it is to publish, or to arrange for the publication of, advertisements and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence under this Act. Part VI – ENFORCEMENT 21. Powers of inspectors (1) An inspector, at all reasonable hours and on production, if required, of his credentials, may— (a) for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only as a dwelling; (b) if he has reasonable cause to suspect that an offence under this Act has been committed and for the purpose of ascertaining whether it has been committed, require any person carrying on a trade, or employed in connexion with a trade, to produce any books or documents relating to the trade and may take copies of, or of any entry in, any such book or document; 8 nnexion with a trade, to produce any books or documents relating to the trade and may take copies of, or of any entry in, any such book or document; 8 Trade Descriptions Act (Cap. 505) Kenya (c) if he has reasonable cause to believe that an offence under this Act has been committed, seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed; (d) seize and detain any goods or documents which he has reason to believe may be required as evidence in proceedings for an offence under this Act; (e) for the purpose of exercising his powers under this subsection, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made thereunder are duly observed, require any person having authority to do so to break open any container or open any vending machine and, if that person does not comply with the requirement, the inspector may do so himself. so to break open any container or open any vending machine and, if that person does not comply with the requirement, the inspector may do so himself. (2) An inspector seizing any goods or documents under this section shall so inform the person from whom they are seized and, in the case of goods seized from a vending machine, the person whose name and address are stated on the machine as being those of the proprietor or, if no name and address are so stated, the occupier of the premises on which the machine stands or to which it is affixed. those of the proprietor or, if no name and address are so stated, the occupier of the premises on which the machine stands or to which it is affixed. (3) If a magistrate, on sworn information in writing— (a) is satisfied that there is reasonable ground to believe either— (i) that any goods, books or documents which an inspector has power under this section to inspect are on any premises and that their inspection is likely to disclose evidence of the commission of an offence under this Act; or (ii) that any offence under this Act has been, is being, or is about to be committed on any premises; and (b) is also satisfied either— (i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this section has been given to the occupier; or (ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the premises are unoccupied, or that the occupier is temporarily absent and it might defeat the object of the entry to await his return, the Magistrate may by warrant under his hand, which shall continue in force for a period of one month, authorize an inspector to enter the premises, if need be by force. by warrant under his hand, which shall continue in force for a period of one month, authorize an inspector to enter the premises, if need be by force. (4) An inspector entering any premises by virtue of this section may take with him such other persons and such equipment as may appear to him to be necessary; and on leaving any premises which he has so entered by virtue of a warrant he shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them. (5) If any person discloses to any other person— (a) any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of this section; or (b) any information obtained by him in pursuance of this Act, he shall be guilty of an offence unless the disclosure was made in or for the purposes of the performance by him or any other person of functions under this Act. (6) If any person who is not an inspector purports to act as such under this section he shall be guilty of a cognizable offence. (7) Nothing in this section shall be taken to compel the production by an advocate of a document containing a privileged communication made by or to him in that capacity or to authorize the taking possession of any such document which is in his possession. g a privileged communication made by or to him in that capacity or to authorize the taking possession of any such document which is in his possession. 9 9 Trade Descriptions Act (Cap. 505) Kenya 22. Obstruction of inspector (1) Any person who— (a) wilfully obstructs an inspector acting in pursuance of this Act; or (b) wilfully fails to comply with any requirement properly made to him by an inspector under section 21; or (c) without reasonable cause fails to give an inspector so acting any other assistance or information which the inspector may reasonably require of him for the purposes of this Act, shall be guilty of an offence. (2) Any person who, in giving any such information as is mentioned in subsection (1), makes any statement which he knows to be false shall be guilty of an offence. (3) Nothing in this section shall be construed as requiring a person to answer any question or give any information if to do so might incriminate him. 23. Nothing in this section shall be construed as requiring a person to answer any question or give any information if to do so might incriminate him. 23. Notice of tests Where any goods seized by an inspector under this Act are submitted to any test, the inspector shall inform the person mentioned in subsection (2) of section 21 of the result of such test, and shall, where as a result of the test proceedings for an offence under this Act are instituted against any person, allow that person to have the goods tested on his own behalf if it is reasonably practicable to do so. 24. Evidence by certificate (1) The Cabinet Secretary may by regulations provide that certificates issued by such persons as may be specified in the regulations in relation to such matters as may be so specified shall, subject to this section, be received in evidence of those matters in any proceedings under this Act. (2) A certificate under regulations made in pursuance of this section shall not be received in evidence— (a) unless the party against whom it is to be given in evidence has been served with a copy of the certificate not less than seven days before the hearing; or (b) if that party has, not less than three days before the hearing, served on the other party a notice requiring the attendance of the person issuing the certificate. y has, not less than three days before the hearing, served on the other party a notice requiring the attendance of the person issuing the certificate. (3) For the purposes of this section, any document purporting to be a certificate shall be deemed to be such unless the contrary is shown. Part VII – MISCELLANEOUS 25. Trade marks containing trade descriptions (1) The fact that a trade description is, or is part of, a trade mark within the meaning of the Trade Marks Act (Cap. 506) does not prevent it from being a false trade description when applied to any goods, except where the following conditions are satisfied— (a) that it could have been lawfully applied to the goods if this Act had not been passed; and (b) that at the relevant date the trade mark either is registered under the Trade Marks Act (Cap. 506) or is in use to indicate a connexion in the course of trade between such goods and the proprietor of the trade mark; and 10 Trade Marks Act (Cap. 506) or is in use to indicate a connexion in the course of trade between such goods and the proprietor of the trade mark; and 10 Trade Descriptions Act (Cap. 505) Kenya (c) that the trade mark as applied is used to indicate such a connexion between the goods and the proprietor of the trade mark or a person registered under section 31 of the Trade Marks Act (Cap. 506) as a registered user of the trade mark; and (d) that the person who is the proprietor of the trade mark is the same person as, or a successor in title of, the proprietor at the relevant date. (2) In this section, "relevant date" means the date on which this Act is published in the Gazette. 26. Saving for civil rights A contract for the supply of goods shall not be void or unenforceable by reason only of a contravention of any provision of this Act. 27. Country of origin (1) For the purposes of this Act, goods shall be deemed to have been manufactured or produced in the country in which they last underwent a treatment or process resulting in a substantial change. be deemed to have been manufactured or produced in the country in which they last underwent a treatment or process resulting in a substantial change. (2) The Cabinet Secretary may, by order in the Gazette, specify— (a) in relation to any description of goods, what treatment or process is to be regarded for the purposes of this section as resulting or not resulting in a substantial change; (b) in relation to any description of goods of which different parts were manufactured or produced in different countries, or of goods assembled in a country different from that in which their parts were manufactured or produced, in which of those countries the goods are to be regarded for the purposes of this Act as having been manufactured or produced. 28. Market research experiments (1) In this section, "market research experiment" means any activities conducted for the purpose of ascertaining the opinion of persons (in this section referred to as "participants") of— (a) any goods; or (b) anything in, on, or with which, the goods are supplied; or (c) the appearance or any other characteristic of the goods or of any such thing; or (d) the name or description under which the goods are supplied. r (c) the appearance or any other characteristic of the goods or of any such thing; or (d) the name or description under which the goods are supplied. (2) This section applies to any market research experiment with respect to which the following conditions are satisfied— (a) that any participant to whom any goods are supplied in the course of the experiment is informed, at or before the time at which they are supplied to him, that they are supplied for such a purpose as is mentioned in subsection (1); and (b) that no consideration in money or money’s worth is given by a participant for the goods or any goods supplied to him for comparison. (3) Neither section 3 nor section 13 shall apply in relation to goods supplied or offered to be supplied, whether to a participant or any other person, in the course of a market research experiment to which this section applies. 29. Exemption of goods for export The Cabinet Secretary may, by order in the Gazette, exempt any goods which are intended for despatch to a destination outside Kenya from any or all of the provisions of this Act. 11 rder in the Gazette, exempt any goods which are intended for despatch to a destination outside Kenya from any or all of the provisions of this Act. 11 Trade Descriptions Act (Cap. 505) Kenya 30. General provisions relating to orders (1) The Cabinet Secretary shall not make any order under this Act which relates to agricultural or horticultural produce, whether processed or not, or to animal feeding stuffs or ingredients thereof, or to fertilizers, or to anything used as a pesticide or for similar purposes, without the concurrence of the Cabinet Secretary for the time being responsible for matters relating to agriculture. esticide or for similar purposes, without the concurrence of the Cabinet Secretary for the time being responsible for matters relating to agriculture. (2) The following provisions shall, save as otherwise expressly provided, apply to the making by the Cabinet Secretary of any order under this Act— (a) before making the order the Cabinet Secretary shall consult with such organisations as appear to him to be representative of interests substantially affected by it, and shall publish, in such manner as the Cabinet Secretary thinks appropriate, notice of his intention to make the order; and (b) the order shall not be made until the expiration of a period of twenty- eight days from the publication of the notice and may be then made with such modifications (if any) as the Cabinet Secretary may think appropriate having regard to any representations received by him; (c) notwithstanding any other written law, no order shall be made with retrospective application. [L.N. 298/1977, Sch.] 31. entations received by him; (c) notwithstanding any other written law, no order shall be made with retrospective application. [L.N. 298/1977, Sch.] 31. Disposal of goods seized (1) Where any goods are seized and detained under section 21, they shall be returned, less any portion thereof which has been reasonably utilized for the purpose of any test, to the person from whom they were seized within a period of three months after the date of seizure unless within such period some person is charged with an offence under this Act and it is alleged that such offence was committed in relation to or in connexion with such goods. (2) Where a prosecution for an offence under this Act is commenced within the period mentioned in subsection (1) and any person is convicted of that offence, the Court may order that any goods seized and detained under section 21 in relation to or in connection with which such offence was committed shall be forfeited to the Government, but in the absence of any such order such goods shall be returned at the conclusion of the proceedings to the person from whom they were seized. 32. [Spent] 12
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