Fisheries Management and Development Act

(1) The Director-General shall by notice in the Gazette give notice of any international conservation and management measures recognized by Kenya for the purposes of this Act.

(1) Where the Director-General has reason to suspect that a foreign fishing vessel is, or has been, involved in the contravention of an international conservation or management measure in areas beyond the national jurisdiction of Kenya, the Director-General may, and in cases where such measure has been notified pursuant to section 31(1) — (a) provide to the appropriate authorities of the flag State, relevant coastal States, relevant regional fisheries management organization and others as appropriate, relevant information, including any available evidence, relating to such contravention; (b) request immediate investigations by the flag State; (c) when such foreign fishing vessel is in a port in Kenya, promptly notify the appropriate authorities of the flag State of the vessel accordingly; and (d) take additional measures in conformity with international law, including such measures as the flag State of the vessel has expressly requested or to which it has consented and any measures agreed through the relevant regional fisheries management organization.

(1) In approving or renewing licences and authorizations pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134, the Director-General shall take into account the extent to which the relevant fishing vessel, including its operator or other relevant person, as appropriate, has — (f) in the case of an operator or person, complied with applicable laws of other States and international conservation and management measures;

(1) No person shall use, permit to be used or attempt to use or carry on board a vessel- (b) any fish aggregating device unless an authorization has been issued in accordance with this Act;

(1) No person shall use, permit to be used or attempt to use or carry on board a vessel- (a) fishing gear that has not been authorized by a valid and applicable licence issued pursuant to this Act for the purpose of fishing unless otherwise provided in this Act; (l) firearms or other electrical shock devices for the purpose of fishing including stunning, disabling or killing fish or in any way rendering fish to be caught easily; (5) No person shall — (a) permit to be used, use or attempt to use any explosive, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or in any way rendering fish more easily caught; or (b) carry or have in possession or control any explosive, electric shock device, poison or other noxious substance in circumstances indicating an intention of using such substance for any of the purposes referred to in subparagraph (a). (6) Any explosive, electric shock device, poison or other noxious substance found on board any fishing vessel shall be presumed, unless the contrary is proved, to be intended for the purposes referred to in paragraph (1) (a) of subsection (42).

(1) No person who has clear cause to believe that a fish, fish product or other fisheries resources have been obtained in contravention of this Act shall buy, sell, possess or otherwise trade in such fish, fish products, or other fisheries resources.

(1) Any person who sells or exports fish or fish products intended for human consumption shall comply with all applicable food quality, health and sanitation requirements and shall not sell or export such fish or fish products which — (a) are adulterated; (b) are contaminated with or contains a poisonous or harmful substance or pathogenic micro-organisms; (c) have not met applicable inspection standards; or (d) are otherwise injurious to human health.

(11) Unless the contrary is proved, any person who is found in possession of any illegal fishing gear, including explosives, poison or any device capable of producing an electric shock on or near the fishery waters shall be presumed to be undertaking an unlawful activity contrary to this Act.

(1) No person shall dump gear, moorings or other objects in the sea or leave unnecessarily or abandon such objects in the sea or on the seabed if they may adversely affect fish or other marine organisms including by continuing to enmesh, trap or otherwise catch fish, impede harvesting operations, damage harvesting gear or endanger vessels.

(1) Subject to subsection (3) no person shall engage in fishing for marine mammals in the Kenya fishery waters or use any port in Kenya for equipping or supplying a vessel intended to be used for fishing for marine mammals. (2) Any marine mammal caught either intentionally or unintentionally shall be released immediately and returned to the waters from which it was taken with the least possible injury.

(1) Where commercial employment is foreseen in Preference for relation to the activity for which the licence or employment of authorization is sought, it shall be a condition of the citizens of Kenya licence or authorization that citizens of Kenya possessing the necessary qualifications and experience shall be givenpreference for employment, and such employment shall be in accordance with the Employment Act, 2007.

98. (1) Fishing licences issued for industrial or semi-industrial fishing vessels for fishing or fishing related activities shall include the following conditions — (h) unless otherwise authorized by the Director-General, the operator shall ensure that at least forty five percent of the crew members on board each fishing vessel are citizens of Kenya.

(1) There shall be established an observer programme Board for the purpose of collecting, recording and reporting reliable and accurate information for scientific, management, and compliance purposes including, among other things — (a) the species, quantity, size, age, and condition of fish taken; (b) the methods by which, the areas in which, and the depths at which, fish are taken; (c) the effects of fishing methods on fish, and the environment; (d) all aspects of the operation of any vessel; (e) processing, transportation, transhipment, storage, or disposal of any fish; (f) monitoring the implementation of management measures and applicable international conservation and management measures; and

(g) any other matter that may assist the Director- General to obtain, analyse, or verify information

for fisheries scientific, management, and compliance purposes. (2) Observers may be deployed as may be directed by the Director-General in accordance with this Act, or any applicable international agreement or arrangements, including an agreement or arrangement with the objective of carrying out fisheries monitoring, control and surveillance operations jointly or in co-operation with the Government of Kenya, or any international conservation and management measures on any vessel used for fishing, transhipment, transportation or landing of fish within and beyond the Kenyan fishery waters and such other uses as may fall within the scope of this Act.

(1)The Director-General may, in writing, appoint — (a) inspectors for purposes of monitoring compliance and management and auditing, including inspections of vessels, premises and facilities and aquaculture establishments to gather information, and report on the fulfilment of pre-licensing requirements and any obligations pursuant to this Act; and (b) observers for purposes of the observer programme established under section 147, in accordance with such standards and procedures as may be prescribed or approved by the Board. (2) An inspector or observer shall on request identify himself and produce proof of identification as an inspector or observer.

Any observer who performs duties in areas beyond national jurisdiction in accordance with this Act, any international agreement or international conservation and management measures shall, unless the contrary is provided, continue to be subject to all provisions of this Act, and all proof of identification as an operators, crew members or other relevant persons towards such observer under this Act shall be fully applicable.

(1) The operator of any fishing vessel required as a condition of licence granted to it to land all or part of its catch in Kenya shall cause such landings to take place only where an observer or inspector is present to monitor the offloading and otherwise perform his/her functions pursuant to this Act. (2) An operator who does not comply with subsection (1) commits an offense and shall be liable on conviction to a fine not exceeding five hundred thousand shillings, and in addition the applicable licence shall be cancelled and no further licence shall be issued for at least one year from the time of the offense in respect of the vessel or operator.

"master" means a person in command or in charge or apparently in command of the vessel, aircraft or a vehicle, but does not include a pilot on board a vessel solely for the purpose of navigation;

"operator" means any person responsible for the operations of, directs or controls a vessel, including the owner, charterer and master of the vessel;

"person" means any natural person or business enterprise and includes a corporation, partnership, cooperative, association and any foreign government, its subdivisions or agents;

(1) In approving or renewing licences and authorizations pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134, the Director-General shall take into account the extent to which the relevant fishing vessel, including its operator or other relevant person, as appropriate, has — (a) the ability to comply with, or has complied with this Act, relevant laws of Kenya and any applicable licensing terms and conditions or Fisheries Management Plan and such other standards as may be required in writing by the Director-General; (b) complied, and has the ability to further comply with other applicable regional and international obligations of Kenya; (c) complied with all applicable vessel registration requirements; (d) complied with all applicable requirements for pre—licensing inspections and related procedures, including as appropriate the full payment of costs for inspections; (e) provided all required data and information; (f) in the case of an operator or person, complied with applicable laws of other States and international conservation and management measures; (g) where the applicant has been convicted of any offense under this Act or any other law relevant to the activity for which application was made, the requirements of the judgment have been fully met; and (h) complied with other relevant laws of Kenya including any applicable requirements of the Merchant Shipping Act, (2) In approving or renewing licences and authorizations in respect of any fishing vessel other than a Kenya fishing vessel pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134, the Director-General shall take into account the ability of the relevant flag State to ensure compliance by its fishing vessels with the laws of Kenya. (3) An industrial or semi-industrial fishing licence shall not be issued or have legal force or effect unless the relevant vessel submits to inspection at the port of Mombasa or such other port as may be required by the Director-General, at the expense of such vessel, and it is established in writing by an inspector, or in the case of a port outside Kenya a person duly authorized by the relevant government agency to carry out the duties of an inspector, that all required licence conditions have been met, including that all gear on board is authorized pursuant to the licence. (4) A fish processing licence shall not be issued or have legal force or effect unless the county executive committee member responsible for fisheries in the respective county in consultation with the Director-General is satisfied that the fish processing establishment or any other operation complies with all such safety and sanitary standards as this Act, other laws of Kenya and conditions as the Cabinet Secretary by notice in the Gazette may require.

(1) In approving or renewing licences and authorizations pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134, the Director-General shall take into account the extent to which the relevant fishing vessel, including its operator or other relevant person, as appropriate, has — (a) the ability to comply with, or has complied with this Act, relevant laws of Kenya and any applicable licensing terms and conditions or Fisheries Management Plan and such other standards as may be required in writing by the Director-General; (b) complied, and has the ability to further comply with other applicable regional and international obligations of Kenya; (c) complied with all applicable vessel registration requirements; (d) complied with all applicable requirements for pre—licensing inspections and related procedures, including as appropriate the full payment of costs for inspections; (e) provided all required data and information; (f) in the case of an operator or person, complied with applicable laws of other States and international conservation and management measures; (g) where the applicant has been convicted of any offense under this Act or any other law relevant to the activity for which application was made, the requirements of the judgment have been fully met; and (h) complied with other relevant laws of Kenya including any applicable requirements of the Merchant Shipping Act, (2) In approving or renewing licences and authorizations in respect of any fishing vessel other than a Kenya fishing vessel pursuant to this Act, and in setting the level of any performance bond required pursuant to section 134, the Director-General shall take into account the ability of the relevant flag State to ensure compliance by its fishing vessels with the laws of Kenya. (3) An industrial or semi-industrial fishing licence shall not be issued or have legal force or effect unless the relevant vessel submits to inspection at the port of Mombasa or such other port as may be required by the Director-General, at the expense of such vessel, and it is established in writing by an inspector, or in the case of a port outside Kenya a person duly authorized by the relevant government agency to carry out the duties of an inspector, that all required licence conditions have been met, including that all gear on board is authorized pursuant to the licence. (4) A fish processing licence shall not be issued or have legal force or effect unless the county executive committee member responsible for fisheries in the respective county in consultation with the Director-General is satisfied that the fish processing establishment or any other operation complies with all such safety and sanitary standards as this Act, other laws of Kenya and conditions as the Cabinet Secretary by notice in the Gazette may require.

(1) The Director-General may, by written notice to the holder of a licence or authorization or that person's or authorization agent, suspend or cancel any licence or authorization issued pursuant to this Act for any of the following reasons — (a) there has been a contravention of the licence or authorization, this Act, an applicable international agreement or international conservation and management measures or relevant applicable law of a third country in respect of which the licence or authorization was given, and — (i) any applicable law or international agreement providing for such suspension or cancellation; (ii) the relevant person or persons involved in such contravention has or have not submitted to the legal or administrative process, or complied with the requirements of an applicable fine, penalty or other determination; or (iii) the Director-General, having regard to the nature and seriousness of the contravention, considers it appropriate to suspend or cancel the licence or authorization; (b) there has been a failure to maintain or comply with, or there has been any material change or change in circumstances affecting the eligibility criteria for the licence or authorization, in the- (i) registration of a company or a vessel; (ii) ownership or beneficial ownership or control of a company or vessel since the time of licence approval; or (iii) characteristics, identification markings, or gear of any licensed industrial fishing vessel; (c) the licence or authorization holder has furnished information which is untrue, incomplete or misleading in connection with the licence application; (d) where a licence or authorization may be transferred, this has been done without the written approval of the Director-General and endorsement by the Cabinet Secretary; (e) any fees, charges or levies required to be paid after the issuance of the licence or authorization have not been paid as required; (f) it is necessary to do so to implement conservation and management measures under this Act, in accordance with its objective and principles; (g) in the case of a commercial aquaculture licence, the licence holder fails to establish the aquaculture operation within the time specified by the Director- General; or (h) such other reasons as may be prescribed or provided in relevant laws of Kenya. (2) The Director-General shall suspend or cancel a licence or authorization in accordance with such procedures as may be prescribed, where — (a) this Act, a fisheries management plan, aquaculture development plan or any international agreement so requires; and (b) such suspension or cancellation is endorsed by the Cabinet Secretary. (3) Where a licence or authorization has been suspended or cancelled in accordance with subsection (2), the Director-General shall notify the applicant of the reasons. (4) There shall be no refund of fees paid in respect of a licence or authorization suspended or cancelled under this Act. (5) No person shall engage in any activity for which the relevant licence or authorization was issued after a notice of suspension or cancellation given pursuant to subsection (3) has been received by the holder. (6) A person who contravenes subsection (5) commits an offense and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to a term of imprisonment not exceeding five years or to both.

(1) No agreement governing joint ventures, or the chartering of any foreign fishing vessel for fishing or fishing related activities within or beyond the Kenya fishery waters, whether or not it involves changing the registration of the vessel, shall be valid unless and until it is approved by the Cabinet Secretary on the advice of the Director-General. (2) A joint venture or charter agreement may be approved only where the following requirements are fully met — (a) a charter agreement vests operational control of the foreign fishing vessel in a Kenya citizen, resident or registered company; (b) the joint venture or charter agreement provides clearly identifiable benefits with no adverse effects to Kenya, its fisheries or its marine environment, including — (i) development of the Kenya fishing industry; (ii) training of Kenya citizens; (iii)foreign exchange earnings for Kenya; (iv)investment in Kenya; (v) landing and domestic distribution activities; and (vi)development of export activities; (c) establishment of a company under the Companies Act, with specified ownership, control and equity by Kenya citizens; (d) the joint venture, charter agreement, right or vessel approved under this Act, is in full compliance with all applicable laws in Kenya; (e) full and complete evidence is submitted, as the Cabinet Secretary may require, that all financial obligations of the foreign fishing vessel will be met promptly and effectively, including payment of all fees and any applicable fine, penalty or other determination which may result from the vessel's activities; and (f) in respect of a charter agreement, that the flag State is responsible for exercising full and effective control over the vessel when it is in areas beyond the national jurisdiction of Kenya. (3) Unless a company is otherwise established under a joint venture or charter agreement, where the operator of the foreign fishing vessel is a company incorporated outside Kenya and doing business in Kenya, it shall establish a place of business in Kenya that includes the requirements for significant benefit to Kenya under subsection (2)(b) and shall comply with the requirements of Part XVIII of the Companies Act. (4) Any vessel fishing under an approved charter agreement shall be subject to all requirements of this Act in respect of foreign fishing vessels, including licensing and compliance agreements.

(1) In addition to the conditions specified in section 90, licences issued to industrial fishing vessels for fishing or fishing related activities shall be subject to the following conditions — (b) the operator shall install, maintain and operate, in accordance with the requirements of this Act, an automatic location communicator or such other equipment integral to a vessel monitoring system as the Cabinet Secretary may require;

(1) In addition to the conditions described in Reporting requirements for industrial fishing sections 90 and 101,t he operator of each industrial fishing vessel shall make such reports as may be prescribed or required by the Director-General as a condition of licence or authorization, which shall include — (c) ensuring that any information or data which may be required to be transmitted by radio communication, a transponder, automatic location communicator or other component of a vessel monitoring system is transmitted continuously, accurately and effectively to the designated receiver;

(1) The Director-General may establish and operate vessel monitoring systems for purposes of monitoring, control and surveillance, and managing the operations of fishing vessels under this Act. (2) The Director-General may require the operator of any fishing vessel, as a condition of licence or otherwise, to install, maintain and operate in accordance with such conditions as may be prescribed and such other conditions that may be required by the Director-General, a mobile transceiver unit or other device or equipment that is an integral component of a vessel monitoring system at all times while the fishing vessel is in the fishery waters or, in respect of a Kenya fishing vessel, in areas beyond national jurisdiction or such other area as may be prescribed or agreed in an international agreement or international conservation and management measures. (3) The operator of each fishing vessel shall comply with all licence conditions and requirements imposed pursuant to subsection (2) and shall, where the mobile transceiver unit or other device or equipment ceases to operate, immediately- (a) notify the Director-General when the mobile transceiver unit or other device ceases to operate in accordance with such requirements; and (b) cause the vessel to cease fishing except as otherwise authorized by the Director-General. (4) Where the mobile transceiver unit or other device ceases to operate as required, the operator shall immediately notify the Director-General and submit to him a report of the vessel's name, call sign, position expressed in latitude and longitudes to the minutes of arc and the date and time of the report at intervals of four hours or such other period as the Director-General may notify the operator, and— (a) cause the vessel to cease fishing except as otherwise authorized by the Director-General; or (b) cause the vessel to immediately return to the port of Mombasa, Lamu and Shimoni. (5) The operator shall comply with such other conditions that may be prescribed and such additional conditions that may be required by the Director-General, including: (a) the type of vessel monitoring system equipment to be used; (b) installation procedures; (c) operational requirements; (d) information requirements; (e) confidentiality; and (f) reports. (6) No person shall- (a) without lawful excuse render inoperative or otherwise interfere with a mobile transceiver unit or other device installed pursuant to this Act so that it fails to operate accurately or in accordance with any prescribed conditions; (b) whether within, or in areas beyond, national jurisdiction, intentionally, recklessly or negligently destroy, damage, render inoperative or otherwise interfere with any part of mobile transceiver unit or vessel monitoring system aboard a vessel licensed pursuant to this Act, or intentionally feed or input into that system information or data which is not officially required or is meaningless; or (c) intentionally, recklessly or negligently divulge information or data obtained from a vessel monitoring system or a system of reporting or recording required or permitted under this Act, other than in the course of duty and to a person or persons entitled to receive that information or data. (7) A person who contravenes the provisions of this section commits an offense and shall be liable on conviction to a fine not less than ten million shillings or to imprisonment for a term less than ten years or to both, and in addition the applicable licence may be suspended or cancelled.