Commodity Import Support Regulation

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T HE COM M ODI T Y I M PORT S UPPORT RE GUL AT I ON(AMENDMENT) ACT, 1999

ARRANGEMENT OF SECTIONS

Section Title

PART I

P R E L IM IN A R Y P R O V ISI O N S

1. Short title2. Addition of Part I

3. Amendment of Section 24. Addition of Part 115. Amendment of Section 66. Amendment of Section 77. Am endmen t of Section 88. Addition of Parts III and IV

I


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''agent'' means a person appointed as such under subsection (1) of sec-

tion I 1;

' 'appointmen t notice'' mean s a notice issued by the Comm issioner for ap-pointing an agent under section 11,"

(b) by adding immediately after the definition of the term ''Cash cover''the following definitions;

''Commissioner'' means the Commissioner for Income Tax;

' 'moneys'' includes any debt, deposit or credit, any salary, wages, pe n-sions payments and any other remuneration;

''principal'' means a person in respect of whom an agent is appointed;

(c) by deleting the term ''Principal Secretary'' in the definition section

and wherever the term appears in the Act and substituting for itthe term ''Permanent Secretary''

(d) by adding im mediately after the definition of the term ''PrincipalSecretary'' the following definitions:

''guarantee'' means a guarantee given by the beneficiary under section 6

to the Permanent Secretary;

''guarantor" means any person spec ified by the beneficiary under section

6 to be a guarantor.''

4. The Principal Act is amended by adding imme diately after Section 2the following new P art and heading-

Additionof Part H

'''PART 11

A L L O C A T I O N A N D R E P A Y M E N T O F C O M M O D I T Y

I M P O R T S U P P O R T F A C I L I T Y ' '

5. Section 6 of the Principal Act is amended-

(a) by adding immediately after paragraph (b) the following new para-

graph:

''(c) a detailedguarantee under which in default of payment of cash cover, in-stalment and interests thereof a specific guarantor shall be re-quired to pay the debts,''


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1999 5Comm odity Import Support Regulat ion (Amendm ent)No. 13

(b) by renumbering section 6 as section 6(l) and by adding immedi-ately after subsection (1) as renumbered the following subsec-tion-

''(2) Notwithstanding paragraph (c) of subsection (1), the Per-

manent Secretary may, where he is satisfied with the proper-ties secured by the applicant as the guarantee for payment ofcash cover, installment and interest, allow that applicant toguarantee him ''self for payment of debt under this Act.''

Amend-6. Section 7 of the principal Act is am ended-ment of

section 7(a) in subparagraph (ii) of paragraph (b) by deleting the words ''twenty

percentum'' which appear in the second line and substitut-

ing for them the words' ''thirty percentum''

(b) by renumb ering section 7 as section 7(l) and by adding imm edi-

ately after subsection (1) as renumbered the following new sub -section:

''(2) The Permanent Secretary shall, after the issuance of let-ter of allocation to the beneficiary under this section, informthe Com missioner in writing stating the particulars of the ben-eficiary, the amount of moneys ex tended to the beneficiaryand the conditions or terms of allocations''

7. Section 8 of the principal Act is amended- Amend-ment of

Section(a) by renum bering section 8 as section 8(l); and8

(b) by adding immediately after the renumbered subsection (1) thefollowing new subsection:

''(2) Any interest charged under paragraph (b) of subsection

(1) shall, for the purpose of the provisions of this Act relatingto the collection and recovery of cash cover or installments, be Addition

of Part Mdeemed to be a cash cover.''and IV

8. The Principal Act is amended by adding immediately aftersection 9 the following new Parts;


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''PART III

PROCEDURE FOR RECOVERY AND COLLECTION

OF UNPAID DEBTS''

10.-41) Notwithstanding the provisions of this Act, the Com missionerUnpaidin''Iments may b y notice in writing served u pon any ben eficiary,, require that thean d

whole of the cash cov er facility extended to such beneficiary, or such partinterest

thereof as remains unpaid and the interest thereof be secured to theCom missioner's satisfaction.

to be

recovered

from a

guarantor (2) Where any security has been given under subsection (1), and suchsecurity consists of a form of guarantee under wh ich,in default of pay-ment of cash cover, and interests thereof, a guarantor, is obliged to paysuch cash cover and such interest, the Commissioner shall, in default ofsuch paym ent, by notice in writing served on the guarantor, require suchguarantor to pay within ninety days of the notice, such, amounts of thedefaulted cash cover payments and interests as may be specified, in thenotice.

Provided that payments of defaulted cash cover and interests shall notexceed the amount guaranteed by the guarantor,

(3) The am ount of installments and interest specified in the notice is-sued under subsection (2) shall be recove red from a guarantor as if suchamounts were debts payable by the guarantor.

(4) W here a g uarantor fails to pay the defaulted cash cover, installmentsand interests within ninety days as required under this section, the Com-

migsioner shall by notice in writing order the distress of the guarantorsproperties as may be detailed under paragraph (b) of section 6and theprovisions of sections 1 3 and I 4 regarding the execution of distress un-der this Act shall apply.

11.-41) The C omm issioner may, in his discretion and by writtenAppoint-notice-ment and

duties of(a) appoint any person to be the age nt of Another person for theagents

purposes of the collection and recovery of cash cover, installmentsand interests due from such other person, and

(b) specify the amount of su ch cash co ver, installments and, interestto be collected and, recovered.


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(2) An agent appointed under subsection (1) shall pay the cash cover,installments and interest specified in his appointment notice out of anymoneys wh ich may at an y time during twelve months following the dateof notice be held by him for or become due from him to his principal.

. . .

(3) Where an agent claims to be, or to have become unable to com -

ply with sub section (2) by reasons of lack of moneys held by h im for, orI

due from him, he shall as soon as may be practicable, notify the Commis-

sioner accordingly in writing setting out the reasons for his inability so to''~,

comply.

(4) The C omm issioner may, after receiving the notification from the agentunder subsection (3)-

(a) accept the notification and cancel or amend the appo intment no-tice accordingly; or.

(b) Where he is not satisfied by the reasons set out in the notifica-tion, reject the notification.

(5) Where the agent has not given a notification to the Com mis-sioner under subsection. (3)-

(a) sufficient moneys for the payments of the cash cover, installmentsand interest specified in his appointment notice shall be pre-sum ed to be held by him for or due from him to his principal; and

(b) in any proceedings for collection or recovery of such cash cover,

installments and interests, the agent shall be estopped from as.serting the lack of such moneys.

I

12.-(I) The C om missioner may at any time, by notice in writ-ing, require any agent to furnish him within

Limita-

tion ofa reasonable time beingtime for

not less than thirty days from the date of service of such notice, a paymentreturn showing any m oneys which is or may be held by such agent of dewor which has become due to him by any other person from whom

cash cover, installments and interest is due.

(2) The Com missioner shall, after receiving a return from the agentunder subsection(l), by notice in writing to the agent specify the am ountof cash cover, installments, and interest to be paid by the agent withinthirty days from the date of service of such notice.


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(3) Where an agent fails to Pay any amount specified in the noticewithin thirty days from the date Of service of such n otice or from the dateOn which any mon eys came into his hands or becom e due by him to, hisPrincipal, and.

(a) he has no t given a notification under subsection (3) of section I 1; orUnpa

nsWn(b) he has given such notification which has been rejected by theand

Com missioner, under subsection (4) of section I 1,the Provisions of this Act relating to the c ollection and recovery of cashcover, installments and interest shall apply to the c ollection and recoveryof such amou nt as if they were due and Pay able by the ag ent, the due dateOf Payment Of wh ich was the date upon which such amounts should have

ntere

o be

ecov,

rom ~

guara

been paid to the Comm issioner under this section.

(4) Notwithstanding any Provisions to the contrary in any w ritten law,contract or agreement, an agent who has m ade any payment under this

section shall, for all Purposes be deemed to hav e acted with the authorityOf his principal and of all other persons concerned and shall be indemni-fied m respect of such payment against all Proceedings, civil or criminaland all process, whethe r judicial or extrajudicial.

(5) For the purposes of section 11 and this section cases wheremoney are new by an agent for or due by him to his principal shallinclude cases where the agent-

(a) Owes or is about to pay or becom es liable to pay money to theprincipal; or

(b) holds m oney for or on account Of the Principal; or

(c) holds money on account of some other person fthe principal; or

(d) has authority from some other Person to pay money to theprincipal.

13.-(I) The Comm issioner may, in any case in which cash cover,U npaid .Installments and interest are recoverable in the manner provided for bysection 9, instead Of suing for such debts, recover the debts by distress,and may, for that Purpose by order under his hand authorized any pub,lie officer or an officer of a court to execute such distress upon thegoods and chattels of the person from whom such debts are recoverable

ins tal lm entsa n dinterestto ber e c o v e r e db ydistress


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(2) Any officer authorized by the Commissioner under subsection

(1) may, at the cost of the person from whom such debts are

recoverable employ such servants or agents as he may thinknecessary to assist him in the execution of the distress.

(3) Wh ere the full amount of the amounts due and payable are notrecovered by distress executed under this section, the Commissionermay forthwith recover the difference in the manner provided for bysection 9.

(4) Wh ere. the full amount due and pay able have been pa id after theissuance of an order under subsection (1) and before the, execu tion ofdistress, any costs and expenses incurred by the Commissioner priorto the payment of such amo unt shall be deemed to be debts due and

payable to the Government by the person in respect of whom the orderwas signed and may be recovered by the Co mm issioner as debts re-coverable under this Act.

14.-( 1) Any officer authorized- under sub section (1) of section 13together with such servants or agents as such officer may consider Proce-necessary to employ, may, for the purposes of exe cuting any dis -dure fortress under this Act, break open in the day time any premises and execution

ofshall require a police officer to be p resent while such distress is being disstress,executed.

(2) Goods and chattels recovered by, distress executed undersubsection (1) shall be kept for ten days either

atthe premises at which

such distress was , executed or at suc h other place as the authorizedofficer, may consider appropriate at the cost of the person from w homcash cover, installment and interest are recoverable.

(3) Where the person from whom the debts are recoverable by dis-tress, does not pay such deb ts together with the costs, of the distresswithin the period of ten days referred to in subsection (2), the goods andchattels distrained upon shall be sold by public auction for payme nt ofthedebts due and payable and all other costs relating to the executed dis-tress.

(4) The proceeds of the sale under subsection (1) shall be applied

first towards the cost of taking, keeping and se lling the goods and chat-tels distrained upon and then towards the debts due and payable and anyremainder of such proceeds sh all be restored to the owner of the prop-

erty distrained.
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15.-(I) Where any person being the owner of land or any p remisessituated in the United Republic, fails to make payment of cash c over,installment or interest due by him on the due dates specified under sec-

tion 8 of this Act, the Com missioner m ay, by notice in writing, notify suchperson of his intention to apply to the Registrar of Titles for such land orpremises to be the subject of security for the defaulted cash cover,installments and interest specified in the notice.

Security

of prop-

erty for

u n p a i d

c a s h

c o v e r ,instabrients

and inter-

est

(2) Where any person on whom a notice has been served under sub-section (1), fails to make paym ent of the whole of the amounts spec ifiedin such notice within thirty days from the date of service of the notice,the Commissioner may, by notice published in the Gazette direct theRegistrar of Titles that the land or building to the extent of the interest ofsuch person therein, be the subject of security for the defaulted cashcover, installments and interest as may be specified in such notice.

(3) The Registrar of Titles shall, after the publication of the noticeunder subsection (2), register the direction of the Comm issioner withoutfee as if it were an instrument of mortgage over or charge on such landor premises as the case m ay be and thereupon such registration shall,subject to any prior m ortgage or charge, operate w hile it subsists in allrespects as a legal mortgage over or charge on such land or premises tosecure the amoun t of the defaulted cash cover installments, and interests.

(4) The Com missioner shall-

(a) after the registration of direction by the Registrar of Titles

under subsection (3), by notice in writing require the benefi-ciary or the owner of the land to make payment of cash coverinstallment and interest within ninety days from the date ofservice of notice; and

(b) upon pay ment of the whole of the cash cov er, installment andinterest secured under sub section (2) cancel the direction madeunder this section, by notice in writing to the Registrar of Titlesand the Registrar shall, without fee, record such cancellationand thereupon such direction shall cease to subsist.

(5) Where the beneficiary on whom the notice has been served un-der paragraph (a) of subsection (4) fails to make payments within ninety

days, the Commissioner shall by notice published in the Gazette order thesale of the property secured under sub section (3) to recover the de-faulted cash cover, installments and interest.


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(6) The proceeds of sale under subsection (5) shall be applied firsttowards the debts due and payable and the remainder of such proceedsif any shall be restored to the owner of the property.

(7) Where the proc eeds of sale are not sufficient enough to recoverthe debts the Commissioner shall continue to recover the debts undersection 9 of this Act-

PART TV

MISCELLANEOUS PROVISIONS

16.-41) Any person who gives fraudulent information for the repay- offencesment of cash cover, installments or interests or who, with intent to evade and pen-

altyliability-

(a) makes a false application under this Act, by om itting therefrom orconcealing therein any information which should hav e been stated

therein;(b) breaches agreement signed under this Act;(c) gives any false information in relation to any matter or thing af-

fecting his liability to cash c over, installments or interest;(d) falsifies or authorizes falsification of docum ents relating to liability;(e) fails to pay cash cov er, installments or interest under this Act;

(f) remits payment by false cheque;(g) fails to preserve any record or docum ent as required by this Act,

comm its an offence and shall, on conviction be liable to a fine notexceeding five million shillings or to imprisonment for a term no t ex-ceeding two years or to both such fine and imprisonment.

(2) Any person, who in any way, obstructs or attempts to obstructsan officer in the performance of his duties or in the exercise of thispowers under this Act, com mits, an offence and upon conviction shallbe liable to a fine not exceeding five million shillings or to imprison-ment for a term not exceeding two years to both such fine and imp rison-ment.

(3) Any person, who com mits an offence under this Act, and forwhich no other penalty is specifically provided, that person shall beliable on conviction to a fine not exce eding five million shillings or toimprisonment for a term not exceeding two years, or to both such fineand imprisonment.


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17. Where any offence under this Act is com mitted by a person asan agent or employee then, that agent or employee as well as the princi-pal or employer, com mits an offence and on conviction shall be liableto be proceeded against and punished accordingly' unless be proves to

the satisfication of the court that he had no know ledge, and coud notby the exercise of reasonable diligence have had knowledge of the com-mission of the offence.

Offencesby princi-

pal or em-ployer

18. Any agent who in giving notification to the Comm issioner undersubsection (3) of section I 1, makes any false or misleading statement orconceals any material fact, comm its an offence and shall upon convic-tion be liable to a fine not exceeding five million shillings or to imprison-ment for,a term not exceeding two y ears or to, both such fine and imp ris-onment.

Offences

by agents

19.-(I) In any proceeding for an offence under this Act the burden

Burden ofto prove that-(a) an application for allocation of comm odity import sup port facilityproof and

under this Act of particulars stated therein are true;paymentof debts (b) any cash cov er, installment or interest has been paid;after con-

(c) the accused is a person not liable to pay any cash cover, instal-viction

ment or interest;(d) any am ount of cash cover, installment or interest due under Part 11

was rem itted to the Treasury in the time w ithin which it is re-quired to be so remitted,

sball be on the p erson charged.

(2) For the avoidance of doubts, the amount of an y cash cover,instalments or interest due and payable under this Act shall not beabated by reason only of the conviction or punishm ent'of the per-son liable for the payment thereof under this Act.

20.-(1) The Commissioner may publish a notice m the GovernmentPublica-Gazette or in any other newspaper circulating, m the United Re-tion ofpublic a list of persons who.names of

offenders (a) fails to pay cash cover, instalments or interest under this Act;(b) have been convicted of any offence under this Act; or(c) have conducted themselves m a manner which amount to an of-

fence under this Act.

(2) Every such list of names of persons published under subsection(1) shall specify:


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Commodity Import Support Regulation

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