National Construction Authority Bill 2011

http://www.kenyafmb.org/documents/National_Construction_Authority_Bill__2011.pdf
THE NATIONAL CONSTRUCTION AUTHORITY
BILL, 2011
ARRANGEMENT OF CLAUSES
Clause
PART I!PRELIMINARY
1!Short title and Commencement.
2!Interpretation.
PART II!THE NATIONAL CONSTRUCTION
AUTHORITY
3!Establishment and incorporation of Authority.
4!Headquarters.
5!Functions of the Authority.
6!Powers of Authority.
7!Membership of the Board.
8!Vacation of office.
9!Conduct of business and affairs of the Board
10!Remuneration of Board members.
11!Delegation by the Authority.
12!Executive Director.
13!Staff of the Board.
PART III!TRADING AS A CONTRACTOR
14!Reqirement for registration.
15!Meaning of “Contractor”.
16!Application for Registration.
17!Registration of foreign contractors.
18!Registers of Contractors.
19!Publication of registers and lists.
20!Publication prima facie evidence of registration.
Inquiries by the Board
21!Inquiry into conduct of contractors.
22!Suspension.
The National Construction Authority Bill, 2011 90
23!Deletion of name.
24!Powers of the Board with regard to register.
PART IV!APPEALS BOARD
25!Establishment.
26!Board may make rules.
27!Expenses of the Appeals Board.
PART V!FINANCIAL PROVISIONS
28!Funds of the Authority.
29!Imposition of levy.
30!Financial year.
31!Annual estimates.
32!The National Construction Authority Fund.
33!Accounts and audit.
34!Investment of funds.
PART VI!MISCELLANEOUS
35!Protection from liability.
36!Common seal.
37!Significance of documents.
38!Protection of name.
39!Power to dissolve Board.
40!Power to make Regulations.
SCHEDULES
FIRST SCHEDULE!BODIES TO NOMINATE BOARD
MEMBERS.
SECOND SCHEDULE!CONDUCT OF THE BUSINESS
AND AFFAIR OF THE BOARD.
THIRD SCHEDULE—CLASSES OF CONTRACT WORKS
MEMORANDUM OF OBEJCTS AND REASONS
The National Construction Authority Bill, 2011 91
THE NATIONAL CONSTRUCTION AUTHORITY
BILL, 2010
A Bill for
AN ACT of Parliament to provide for the
establishment, powers and functions of the
National Construction Authority and for
connected purposes
ENACTED by the Parliament of Kenya, as follows—
PART I—PRELIMINARY
Short title and
Commencement.
1. This Act may be cited as the National Construction
Authority Act, 2010, and shall come into operation on such date
as the Minister may, by notice in the Gazette, appoint.
Interpretation. 2. In this Act, unless the context otherwise requires–
Cap. 446
Cap. 486
“Authority” means the National Construction Authority
established
under section 3;
“Board” means the Board of the Authority established
under section 7;
“ chairperson” means the chairperson of the Board
appointed under Section 7 (1);
“class” in relation to contract, means any of the classes of
contract works set out in the Third Schedule in respect of which
a contractor may be licensed by the Board;
“Committee” means the State Corporations Advisory
Committee established under the State Corporations Act;
“company” means a company within the meaning of the
Companies Act;
“construction site supervisor” means a person assigned to the
construction site by a contractor to supervise construction
works;
“construction industry” means the industry concerning
construction works;
The National Construction Authority Bill, 2011 92
“construction works” means the construction, extension,
installation, repair, maintenance, renewal, removal, renovation,
alteration, dismantling, or demolition of-(a) any building, erection, edifice, structure, wall, fence or
chimney, whether constructed wholly or partly above
or below ground level ;
(b) any road, harbour works, railway, cableway, canal or
aerodrome;
(c) any drainage, irrigation or river control works;
(d) any electrical, mechanical, water, gas, petrochemical or
telecommunication works; or
(e) any bridge, viaduct, dam, reservoir, earthworks,
pipeline, sewer, aqueduct, culvert, drive, shaft, tunnel
or reclamation works, and includes any works which
form an integral part of, or are preparatory to or
temporary for the works described in paragraphs (a) to
(e), including site clearance, soil investigation and
improvement, earth-moving, excavation, laying of
foundation, site restoration and landscaping.
“contractor” means a person registered under section 15;
“executive director” means the executive director of the
Authority appointed under section 12;
“member” in relation to the Board or the Appeals
Authority includes the chairman and the vice-chairman;
“Minister” means the Minister for the time being
responsible for matters relating to public works;
“person” includes a firm or body of persons, whether
corporate or unincorporate;
“register” means the Register of Contractors maintained by
the Authority in accordance with the provisions of this Act;
“registered” in relation to any contractor means a contractor
whose name is entered in the relevant register;
“Registrar” means the executive director;
The National Construction Authority Bill, 2011 93
PART II—THE NATIONAL CONSTRUCTION
AUTHORITY
Establishment and
incorporation of
Authority.
3. (1) There is hereby established an Authority to be known
as the National Construction Authority.
(2) The Authority shall be a body corporate with perpetual
succession and a common seal and shall, in its corporate name,
be capable of –
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding,
charging or disposing of movable and immovable
property; and
(c) borrowing and lending money; and
(d) doing or performing all other things or acts which may
be lawfully done or performed by a body corporate for
the furtherance of the provisions of this Act.
Headquarters.
4. The Headquarters of the Authority shall be in Nairobi.
Functions of the
Authority.
5. (1) The object for which the Authority is established is to
oversee the construction industry and coordinate its
development.
(2) Without prejudice to the generality of subsection (1), the
Authority shall!
(a) promote and stimulate the development, improvement
and expansion of the construction industry;
(b) advise and make recommendations to the Minister on
matters affecting or connected with the construction
industry;
(c) undertake or commission research into any matter
relating to the construction industry;
(d) prescribe the qualifications or other attributes required
for registration as a contractor under this Act;
(e) assist in the exportation of services connected to the
construction industry;
The National Construction Authority Bill, 2011 94
(f) provide consultancy and advisory services with respect
to the construction industry;
(g) promote quality assurance in the construction industry;
(h) encourage the standardisation and improvement of
construction techniques and materials;
(i) initiate and maintain a construction industry
information system;
(j) provide, promote, review and co-ordinate training
programmes organized by public and private
accredited training centers for skilled construction
workers and construction site supervisors;
(k) accredit and register contractors and regulate their
professional undertakings; and
(l) accredit and certify skilled construction workers and
construction site supervisors.
(3) The Authority shall ensure that the performance of
functions under this Act is in furtherance of the policy
Government for the time being in force in relation to the
construction industry.
Powers of Authority.
6. (1) The Authority shall have all the powers necessary for
the proper performance of its functions under this Act, and, in
particular, but without prejudice to the generality of the
foregoing, the Authority shall have power to!
(a) award certificates of proficiency to contractors, skilled
construction workers and construction site supervisors;
(b) with the approval of the Minister, impose fees or any
other charges as it deems fit in respect of any of its
functions or powers;
(c) with the approval of the Minister, establish or expand, or
promote the establishment or expansion of, companies,
corporations or other bodies to carry on any activities
related to construction either under the control or partial
control of the Authority or independently; and
(d) receive, in consideration of any services that may be
rendered by it, such commission or payments as may be
The National Construction Authority Bill, 2011 95
agreed upon with any person.
Membership of the
Board.
7. (1) There shall be a Board of the Authority which shall
consist of—
(a) a chairperson, who shall to be appointed by the Minister
from among the members appointed under paragraph
(f);
(b) the Permanent Secretary in the Ministry for the time
responsible for matters relating to public works;
(c) the Permanent Secretary in the Ministry for the time
responsible for matters relating to roads;
(d) the Permanent Secretary in the Ministry for the time
being responsible for matters relating to local
government;
(e) the Permanent Secretary to the Treasury;
(f) seven members, comprising representatives of each of
the organizations specified in Part I and II of the First
Schedule and appointed by the Minister, from amongst
three persons nominated by each of the organizations;
and
(g) one member appointed by the Minister to represent
groups with special interests in the construction industry.
(2) The Minister may, by notice in Gazette, amend the
First Schedule.
(3) The members referred to under subsection (1) (b) (c)
and (d) and (e) may in writing, designate any officer not below
the level of Deputy Secretary to represent them on the Board.
(4) A person nominated by the associations set out in
Part II of the First Schedule shall qualify for appointment as a
member of the Board under paragraphs (1)(f) and if such person
is the holder of a Kenya Certificate of Secondary Education or
equivalent qualification and has at least ten years’ practical
experience in the construction industry.
(5) The chairperson and members of the Board, other
than the ex-officio members, shall hold office for a period of
three years from the date of appointment, but shall be eligible for
re-appointment for one further term.
The National Construction Authority Bill, 2011 96
Vacation of office.
8. The office of a member of the Board, other than an ex
officio member, shall become vacant if the member!
(a) resigns his office by notice in writing addressed to the
Minister;
(b) is absent from three consecutive meetings of the Board
without the permission of the chairperson;
(c) is convicted of an offence by a court and sentenced to
imprisonment for a term of six months or more without
the option of a fine;
(d) is convicted of an offence involving fraud, dishonesty or
moral turpitude;
(e) is unable, by reason of mental or physical infirmity, to
discharge his functions as a member of the Board ;
(f) is otherwise unable or unfit to continue serving as
member of the Board, or
(g) dies.
Conduct of business and
affairs of the Board.
9. The conduct and regulation of the business and affairs of
the Board shall be as provided in the Second Schedule, but
subject thereto
the Board may regulate its own procedure.
Remuneration of Board
members.
10. (1) There shall be paid to the members of the Board
such remuneration, fees or allowances for expenses as the
Minister, in consultation with the Committee, may approve.
Delegation by the
Authority.
11. The Board may, by resolution either generally or in any
particular case, delegate to any of its committees or to any
member, officer, employee or agent of the Board, the exercise of
any of the powers or the performance of any of the functions or
duties of the Board under this Act or under any other written law.
Executive director.
12. (1) There shall be an executive director of the Authority
who shall be appointed by the Board and whose terms and
conditions of service shall be specified in the instrument of
appointment or otherwise in writing from time to time.
(2) A person shall be qualified for appointment under this
section where such person is a holder of a degree from a
recognized university in –
(a) architecture ;
(b) quantity surveying, or
(c) engineering,
The National Construction Authority Bill, 2011 97
and is registered as a professional under the relevant law for the
time being in force, and has at least ten years’ experience in a
management position in a private or public organization.
(3) The executive director shall –
(a) be the chief executive officer of the Authority and
responsible to the Board for the day-to-day
management of the affairs of the Authority; and
(b) be the Secretary to the Board and the Registrar of
contractors.
Staff of the Board.
13. The Board may appoint such officers or other staff as
may be necessary for the proper discharge of the functions of the
Authority under this Act or any other written law, upon such
terms and conditions of service as the Board may determine
PART III!TRADING AS A CONTRACTOR
Requirement for
registration.
14. (1) A person shall not carry on the business of a
contractor unless the person is registered by the Board under this
Act.
(2) A person seeking registration under subsection (1) shall,
in the case of a firm, be eligible for registration if at least one of
the partners or directors of the firm possesses such technical
qualifications, skills or experience as the Board may from time to
time prescribe.
Meaning of
“Contractor”.
15. (1) For the purposes of this Act, a person carries on
business as a contractor where such person, for reward or other
valuable consideration, undertakes the construction, installation
or erection, for any other person, of any structure situated below,
on or above the ground, or other work connected therewith, or
the execution, for any other person, of any alteration or otherwise
to any structure or other work connected therewith, and
undertakes to a supply-(a) the materials necessary for the work, or is authorized to
exercise control over the type, quality or use of the
materials supplied by any other person;
(b) the labour necessary for the work, or is authorized on
behalf of the person for whom the work is undertaken
or any other person, to employ or select workmen for
employment for the purposes of the execution of the
work, whether under a contract of service or otherwise:
The National Construction Authority Bill, 2011 98
Provided that a person shall not be deemed to be a
contractor if the work undertaken!
(i) does not incur a cost exceeding such sum or sums
as the Board may from time to time determine; or
(ii) consists of a residential house for private use, not
requiring a structural design.
(2) The Board shall register eligible contractors to
undertake any of the classes of contracted works set out in the
Third Schedule depending on their knowledge and experience.
(3) The Minister may by notice in the Gazette amend the
Third Schedule.
Application for
Registration.
16. (1) A person or firm may apply to the Board for
registration as a contractor for purposes of this Act.
(2) An application for registration shall be in the prescribed
form and shall be accompanied by the prescribed fee, and shall
demonstrate to the satisfaction of the Board that the person, or, in
the case of a firm, at least one director or partner thereof!
(a) is the holder of the minimum technical qualifications
and skills prescribed by the Board for the class of
contract works in respect of which registration is
sought;
(b) has the necessary experience prescribed by the Board
in works involving construction, erection, installation,
alteration or any other activity connected therewith;
(c) has professional and general conduct which in the
opinion of the Board, makes the person suitable to be
registered under this Act; and
(d) has the necessary plant and equipment for the category
of works for which the registration is sought.
(3) The Board may refuse to register a person as a
contractor if in its opinion that person!
(a) does not meet the conditions stated in subsection (2);
(b) is a member of a consulting firm providing
architectural, quantity surveying or engineering
The National Construction Authority Bill, 2011 99
services, unless the person is authorized to seek such
registration by the respective registration board; or
(c) is a person whose registration as a contractor shall
result in conflict of interest with his employer.
(4) Upon registration, the person shall be issued with a
certificate of registration indicating the registration number, the
class of works for which registered, the date of registration and
duration of registration.
(5) The certificate issued under subsection (3) shall
remain the property of the Authority and shall be withdrawn and
returned to the Authority upon suspension or cancellation of the
registration of the holder.
Registration of foreign
contractors.
17. (1) The Board may accredit a firm incorporated outside
Kenya to carry out construction works in Kenya, for a prescribed
period where the firm meets the conditions prescribed by the
Board and satisfies the Board that the firm -(a) intends to be present in Kenya only for the purpose of
carrying out the specific works for which it has been
contracted, for which, the sum payable is not less than
the sum prescribed by the Board for the class of works
in respect of which registration is sought;
(b) has a certificate of compliance from the Registrar of
Companies showing that it is, or immediately prior to
entering Kenya, was, trading as a contractor in the
capacity which satisfies the Board with respect to its
suitability to serve the public as a qualified contractor;
and
(c) has lodged an affidavit with the Board to the effect that,
once the contracted works are completed and the period
of defects liability or maintenance has elapsed, it shall
wind up business and shall not engage itself in the
construction business within Kenya.
(2) The Board may require an applicant under this
section to appear before it and produce documentary evidence of
its competence in executing construction works immediately
prior to its entry in Kenya.
(3) Registration of a firm under this section shall entitle
it to undertake work only for the period of time prescribed by the
Board in subsection (1), and on the expiry of that period that firm
The National Construction Authority Bill, 2011 100
shall cease to be so registered, and shall return the registration
certificate to the Board.
(4) A firm registered under this section shall during the
period of the contracted works, and in relation to things done or
omitted to be done in the course of the contracted works, be
treated as being duly registered under this Act as a contractor.
Registers of Contractors.
18.(1) The Registrar shall keep and maintain registers in
which the name of every registered contractor shall be entered as
soon as practicable after being approved by the Board for
registration.
(2) The register shall contain, in respect of every person
or firm!
(a) the date of registration;
(b) the physical and postal address;
(c) the registration number;
(d) the class of works for which the person is registered;
(e) the capital and other financial resources;
(f) tools, plants and equipment;
(g) the key managerial, professional or technical and other
personnel;
(h) names and qualifications of directors or partners, who
are technically qualified or experienced in the relevant
works as prescribed by the Board;
(i) in the case of an individual, his qualifications or skills
and experience;
(j) the annual turnover of construction activities;
(k) the duration of registration;
(l) the type of registration; and
(m) any other particulars which the Board may, from time
to time, direct.
(3) The Registrar shall maintain separate registers in
The National Construction Authority Bill, 2011 101
respect of the different classes of works, and shall record any
changes in any of the particulars set out under subsection (1).
Publication of registers
and lists.
19. (1) The Registrar shall by notice published in the
Gazette, as soon as practicable after registration, publish the
names and particulars of all persons registered by the Board, and
shall, as soon as practicable after the 1
st
January and the 1
st
June
in each year, publish in the Gazette the names and particulars of
all contractors whose names remain on the register as at those
dates.
Publication prima facie
evidence of registration.
20. (1) Publication of the name of a person in the Gazette
under section 19 shall be prima facie evidence that the person is
registered under this Act.
(2) The registers, and any lists, copies, or extracts thereof,
which are duly certified by the executive director shall be
accepted in all courts and tribunals or other bodies authorized to
receive evidence of the facts stated in them.
(3) Any person may inspect the register and any document
relating to any entry in it and may obtain from the Registrar a
copy of an extract from the register for any document on
payment of a prescribed fee.
Inquiry into conduct of
contractors.
Inquiries by the Board
21.(1) The Board may institute an inquiry into the conduct
of a contractor on its own initiative or upon receipt of a
complaint addressed to the Board in writing, made by or on
behalf of any person alleging unprofessional conduct on the part
of a registered person.
(2) The Board may conduct such inquiry or refer it to a
subcommittee appointed by the Board for the purpose.
(3) Upon receipt of a complaint against a contractor, the
Board shall inform the person complained of, giving the grounds
of the complaint, by notice sent to the contractor’s last address
acknowledged by the Registrar.
(4) The Board may call upon the contractor whose conduct
is complained of or is under investigation to file, within a
specified period, an explanation in answer to the complaint, and
may require such explanation to be verified by affidavit.
The National Construction Authority Bill, 2011 102
(5) The Board may summon before it or before a
subcommittee established for the purpose, any contractor against
whom a complaint is lodged or whose conduct may appear to the
Board to require investigation, and may call upon such contractor
to produce any document, contract, book, paper, specification,
quantities or other writing in that contractor’s control in any way
relating to or concerning the complaint or matter under
investigation, and may hear any evidence and inspect any
document which the complaint or the party complained against
may desire to adduce.
(6) The contractor against whom a complaint is made shall
have the right to appear before the Board and to be heard either
personally or through his advocate, and may call such evidence
and produce such documents as may be relevant.
(7) Any contractor who, having been served with a summons
or an order issued under the provisions of subsection (5), fails
without sufficient cause!
(a) to answer fully and satisfactorily to the best of his
knowledge and belief all questions put to him by or with
the concurrence of the Board; or
(b) to produce any documents in his possession or under his
control which are specified in the order,
commits an offence and is liable upon conviction to a fine not
exceeding than ten thousand shillings or to imprisonment for a
term not exceeding one year or to both.
(8) Any person giving evidence before the Board shall in
respect of any evidence given by him or any document produced
by him, be entitled to all privileges to which he would be entitled
as a witness before the High Court.
(9) The Board, having inquired into the alleged misconduct
of any Contractor, may!
(a) caution the Contractor;
(b) direct the to take such action as it may deem appropriate
in the circumstances;
(c) direct that the registration of the Contractor be
suspended for such period as it may specify; or
(d) direct that the name of the contractor be removed from
the register.
Suspension.
22. (1) The Board shall have power to suspend any contractor
if such or !
The National Construction Authority Bill, 2011 103
(a) is convicted of an offence under this Act;
(b) is found guilty of any act or omission amounting to
improper, disgraceful conduct or gross professional
misconduct, after due inquiry held by the Board; or
(c) has breached the regulations or by-laws of the Authority.
(2) In addition to the power to suspend registration given
under subsection (1) the Board may!
(a) caution or censure a registered contractor;
(b) direct that the registration of the contractor be suspended
for such period as it may specify;
(c) direct that the contractor’s name be deleted from the
Register; or
(d) take legal action against the registered contractor.
Deletion of name.
23. (1) The Board may at any time direct that the name of a
registered contractor be deleted from the register where that
contractor !
(a) fails, within a period of six months from the date of an
inquiry sent by the Registrar by registered letter to the
address appearing in the register against his name, to
notify the Registrar of his current address;
(b) requests that the name be deleted from the register, in
which case that contractor may be required to satisfy the
Board by swearing an affidavit certified by a
commissioner for oaths and lodged with the Registrar
that no criminal proceedings under section 20 or 21 of
this Act are being, or are likely to be, taken against the
contractor;
(c) fails to pay annual subscription fees for two consecutive
years;
(d) fails to meet the registration criteria set by the Authority;
(e) fails to discharge the duties, responsibilities and
obligations of a contractor;
(2) The Registrar shall delete the name of every
deregistered contractor from the register.
The National Construction Authority Bill, 2011 104
(3) Except in the circumstances specified in
subsection(1)(a) and subsection (2), the deletion of the name of
any contractor from the register shall be notified by the Registrar
to that contractor by a recorded delivery or a registered letter to
the address appearing in the register against his name
immediately prior to the deletion.
(4) A contractor whose name has been deleted from the
register under this section shall, with effect from the date of the
deletion, cease to be registered for the purpose of this Act, and
shall be obliged to immediately surrender to the Board the
certificate of registration for cancellation.
(5) Where the name of any contractor has been deleted
from the register, that contractor shall not be registered afresh
under any other name.
Powers of the Board
with regard to register.
24. (1) Where the name of any contractor has been deleted
from the register such name shall not be restored to the register
except on the direction of the Board.
(2) Where the name of any contractor has been deleted
from the register or the contractor has been suspended in terms
under 22, the Board may, either of its own motion or on
application in the prescribed manner by the contractor concerned,
and in either case after holding such inquiry as the Board may
deem fit, direct that!
(a) the deletion of the contractor’s name from the register
be confirmed ;
(b) the name of that contractor be restored to the register; or
(c) the suspension of the contractor be lifted.
(3) A direction by the Board under subsection (2) may
include a provision of the date for -(i) the restoration of the contractor’s name to the
register;
(ii) the lifting of the suspension of the contractor; or
(iii) the payment by the contractor of such penalty, not
exceeding the fee payable for registration, as the
Board may determine.
(4) Any contractor aggrieved by a decision of the Board to—
(a) refuse to register the contractor;
(b) delete the contractor’s name from the register; or
(c) suspend the contractor;
may appeal to the Appeals Board against the decision of the
Board and the Appeals Board may give such directions in the
The National Construction Authority Bill, 2011 105
matter as it deems proper.
(5) The Board may appear as respondent and be heard on
any appeal against its decision and, for the purposes of enabling
directions to be given as to the costs of any appeal, the Board
shall be deemed to be a party thereto, whether or not it shall
appear at the hearing of the appeal.
Establishment.
PART IV—APPEALS BOARD
25. (1) There is established a board to be known as the
National Construction Appeals Board (hereinafter referred to as
“the Appeals Board”).
(2) The Appeals Board shall consist of the following
persons, who shall be appointed by the Minister!
(a) a chairperson, being an advocate of the High Court of
Kenya, who shall be nominated by the Attorney-General;
(b) a person with professional knowledge and experience
in architecture, quantity surveying, engineering,
building surveying or project management; and
(c) a person nominated by the Chartered Institute of
Arbitrators (Kenya Chapter).
(3) An appeal shall lie to the Appeals Board at the suit of
any person aggrieved by a decision of the Board under section.
(4) A person aggrieved by the decision of the appeals
Board may appeal to the High Court.
Board may make the
rules
26. The Appeals Board may make rules for or with respect
to the filing, hearing and disposal of appeals and other matters
before it.
Expenses of the Appeals
Board.
27. The expenses of the Appeals Board shall be provided
by the Ministry.
PART V – FINANCIAL PROVISIONS
Funds of the Authority.
28. The funds of the Authority shall consist of –
(a) such income as may be provided by Parliament for the
purposes of the Authority;
The National Construction Authority Bill, 2011 106
(b) such monies as may accrue to the Authority in the
performance of its functions under this Act;
(c) all the proceeds of the levy imposed under section 29;
and
(d) all monies from any other source provided for or donated
or lent authority.
Imposition of levy.
29. (1) The Minister may, by notice in the Gazette, impose
a levy to be known as the construction levy on construction work
carried out by persons registered under this Act.
(2) The levy shall be in an amount not exceeding an
equivalent of 0.25% of the value of any contract whose value
exceeds five million shillings.
(3) The Minister may make regulations prescribing the
manner of payment of the levy.
Financial year.
30. The financial year of the Authority shall be the period of
twelve months ending on the thirtieth June in each year.
Annual Estimates.
31. (1) At least three months before the commencement of a
financial year, the Board shall cause to be prepared the estimates
of revenue and expenditure of the Authority for that year.
(2) The annual estimates shall make provision for all estimated
expenditure of the Authority for the financial year, and, in
particular, shall make provision for!
(a) the payment of salaries, allowances, pension gratuities,
and other changes in respect of the staff of the Authority;
(b) proper maintenance of the buildings and grounds of the
Authority; and
(c) the maintenance, repair and replacement of the utilities,
equipment and other property of the Authority.
(3) The annual estimates shall be approved by the Board
before the commencement of the financial year to which they
relate, and shall be submitted to the Minister for approval, and
thereafter the Authority shall not increase or decrease the annual
estimates except with the authority of the Minister.
The National
Construction Authority
Fund.
32. (1) There shall be established a Fund to be known as the
National Construction Fund, which shall vest in the Authority.
(2) There shall be paid into the Fund!
The National Construction Authority Bill, 2011 107
(a) the initial budgetary provision by the Government as
start-up capital for the establishment of the Authority;
(b) the charges levied on contractors on services given by the
Authority;
(c) such moneys or assets as may accrue to or vest in the
Authority in the course of the exercise of its powers or
the performance of its functions under this Act or under
any other written law;
(d) all proceeds from the levy imposed under section 26; and
(e) all moneys from any other source provided for or donated
or lent to the Authority;
(3) All receipts, savings and accruals for the Fund and the
balance of the Fund at the end of the financial year shall be
retained for the purposes for which the Fund is established.
(4) There shall be paid out of the Fund any expenditure
incurred by the Authority in the exercise of its powers or the
performance of its functions under this Act.
(5) The Board may with the approval of the Minister, set a
ceiling of the money which may be spent on recurrent
expenditure in any one year.
Accounts and audit.
No 12 of 2003
33. (1) The Board shall cause to be kept all proper books and
records of account of the income, expenditure and assets of the
Authority.
(2) Within a period of three months from the end of each
financial year, the Authority shall submit to the Controller and
Auditor General the accounts of the Authority together with—
(a) a statement of the income and expenditure of the
Authority during that year; and
(b) a statement of the assets and liabilities of the Authority
on the last day of that year.
(3) The accounts of the Authority shall be audited and
reported upon in accordance with the Public Audit Act, 2003.
(4) The Authority shall ensure that in any financial year
expenditure and commitments from the Account shall not exceed
The National Construction Authority Bill, 2011 108
the annual income of the Fund together with any surplus income
brought forward from a previous year.
Investment of funds.
34. (1) The Authority may, with the approval of the
Minister!
(a) invest any of its surplus funds in Government securities;
(b) place or deposit with any banks quoted on an approved
securities exchange in Kenya as it may determine, any
moneys not immediately required for the purposes of the
Authority.
Cap. 485A.
(2) In this section, “approved securities exchange” means
a securities exchange approved under the Capital Markets Act.
PART VI—MISCELLANEOUS
Protection from liability.
35. (1) No matter or thing done by a member of the Board
or any officer, employee or agent of the Authority shall, if the
matter or thing is done bona fide for executing the functions,
powers or duties of the Authority under this Act, render the
officer, employee or agent or any person acting under their
direction liable to any action, claim or demand whatsoever.
(2) The provisions of subsection (1) shall not relieve the
Authority of the liability to pay compensation or damages to any
person for any injury to him, his property or any of his interests
caused by the exercise of the powers conferred on the Authority
by this Act or by any written law or by the failure, whether
wholly or partially, of any works.
Common seal.
36. (1) Subject to this section, the common seal of the
Authority shall be kept in the custody of the Executive Director
or of such other person as the Board may direct, and shall not be
used except upon the order of the Board.
(2) The common seal of the Authority shall be authenticated
by the signature of the chairperson and the executive director.
(3) The common seal of the Authority, when affixed to any
document and duly authenticated under this section, shall be
judicially and officially noticed, and, unless the contrary is
proved, the necessary order or authorization of the Council under
this section shall be deemed to have been duly given.
Signification of
documents.
37. All documents other than those required by law to be
under seal made on behalf of the Board shall be signified by the
The National Construction Authority Bill, 2011 109
hand of the chairman of the Board, the Executive Director, or
any other member of the Council specifically authorized by the
Council in that behalf.
Protection of name.
38. Any person who, without the written consent of the
Board, uses the words “National Construction Authority” in
furtherance of , or as, or in connection with , any advertisement
for any trade, business, calling or profession, commits an offence
and is liable on conviction to imprisonment for a term not
exceeding twelve months or a fine not exceeding thirty thousand
shillings or to both such fine and imprisonment.
Power to dissolve
Board.
39. Notwithstanding any other provision of this Act, the
Minister may by notice in the Gazette dissolve the Board where
the Board performs its functions in a manner which is
inconsistent with this Act.
Power to make
Regulations.
40. (1) The Minister may in consultation with the Board,
make regulations generally for the better carrying out of the
purposes of this Act.
(2) Without prejudice to the generality of the foregoing,
regulation made under this section may provide for!
(a) the manner of payment of the levy imposed under
section 29;
(b) the manner of service of any notice required under
Act;
(c) the fees and charges to be paid in respect of any matter
required for purposes of this Act;
(d) the manner and forms of accreditation and certification
of contractors, skilled construction workers and
construction site supervisors;
(e) the responsibilities and control of the officers and
servants of the Authority;
(f) the performance of the functions, the exercise of the
powers and discharge of the duties of the Authority
under this Act, and
(g) any other matter to give effect to the provisions of this
Act.
The National Construction Authority Bill, 2011 110
FIRST SCHEDULE (S.7(1)(f)
Bodies to Nominate Board members
PART I
1. Architectural Association of Kenya;
2. The Institution of Engineers of Kenya;
3. The Institute of Quantity Surveyors of Kenya;
4. Law Society of Kenya.
PART II
1. The Kenya Federation of Master Builders,
2. The Kenya Association of Building and Civil
Engineering Contractors
3. The Roads and Civil Engineering Contractors
Association.
SECOND SCHEDULE (S.9)
CONDUCT OF THE BUSINESS AND AFFAIRS OF
THE BOARD
1. The Board shall meet at least four times in every
financial year and not more than two months shall elapse
between the date of one meeting and the date of the next meeting.
2. Notwithstanding paragraph 1, the chairperson may at any
time, and shall, within one month of the receipt by him of a
written request signed by at least seven members of the Board,
convene a special meeting of the Board.
3. The quorum for the conduct of the business of the Board
shall be seven members.
4. The chairperson shall preside at every meeting of the
Board at which he is present, but in the absence of the
chairperson the members present shall elect one among their
number to preside, and such member shall, as concerns that
meeting, have all the powers of the chairperson.
5. The decisions of the Board shall be carried by the
The National Construction Authority Bill, 2011 111
votes of a majority of the members present, but in the case of an
equality of votes the chairperson or person presiding shall have
a casting vote.
6. The members may appoint committees from among
themselves or otherwise, to carry out such general or special
functions as may be specified by the Board.
7. Any member who has a direct or indirect interest in any
decision to be taken on any specific matter by the Board, shall
disclose the nature of such interest at the meeting of the Board
where such decision is being taken, and the disclosure shall be
recorded in the minutes of the meeting, and if majority of the
members of the Board believe that such member’s interest in the
matter is such as to influence his judgment, he shall not
participate in the deliberation or the decision of the Board on
such matter.
8. Except as provided in this Schedule, the Board may
regulate its own procedure.
THIRD SCHEDULE (S.15(2)
CLASSES OF CONCTRACT WORKS
A—Building Works
(a) General Building Contractor;
(b) Carpentry/Joinery;
(c) Painting;
(d) Masonry;
(e) Reinforced masonry works;
(f) Specialized building works.
B—Civil Engineering
(a) Roadworks;
(b) Structural Works;
(c) Boreholes;
(d) Site Investigation Works;
(e) Sewers.
C – Electrical Engineering Services
(a) Electrical Installation;
(b) Electronic
(i) Telecommunications 9PABX, intercoms and
telephone wiring);
The National Construction Authority Bill, 2011 112
(ii) Electronic communications (public address systems
and conferences systems);
(iii) Road Communications;
(iv) Structured Cabling and computer networking
Installations;
(v) Security Surveillance Systems (CCTV and intruder
Alarm systems)
(c) Lift and Escalators Installation;
(d) Generating Plants and Control Panels;
(e) Solar Power Generation;
(f) Photovoltaic Installation.
D—Mechanical Engineering Services
(a) Plumping, Drainage and Sanitary Fittings;
(b) Refrigeration, Air-Conditioning and Ventilation;
(c) Kitchen and Laundry Equipment and refuse disposal
systems;
(d) Boilers, Incinerators and Pressure Vessels;
(e) Solar Heating Systems;
(f) Water Tanks, Treatment Plant and Pumping plant;
(g) Compressed Air, Hydraulic, LP and Medical Gas
Installation;
(h) Cranes and Hoists;
(i) Fire Engineering Services;
(j) Health club facilities;
(k) Borehole equipment;
(l) Hospital Equipment;
(m) Mobile shelving.
The National Construction Authority Bill, 2011 113
MEMORANDUM OF OBJECTS AND REASONS
The main purpose of this Bill is to provide a legal and institutional framework for
the development of the local construction industry. This will be achieved
through capacity building and training and the regulation of contractors.
Part I of the Bill contains preliminary provisions.
Part II of the Bill establishes and incorporates the National Construction
Authority and assigns functions to it. The Authority is mandated to oversee the
construction industry and co-ordinate its development. Among its functions are
the promotion of the development of the industry, registration of contractors, the
standardization and improvement of construction techniques and materials and
accreditation and certification of skilled construction workers and construction
site supervisors. The Authority is empowered to, among other things, establish
or promote the establishment of construction companies.
Under this Part is established the Authority whose membership comprises
representatives of professional and other construction-related organizations and
representative of a special interest group.
Part III has provisions on trading as a contractor.
Clause 15 defines the activities to which the Bill relates.
The Part has provisions on the registration of local and foreign contractors and
the conditions attaching to each.
The Board is empowered to carry out inquiries into the conduct of registered
contractors and impose sanctions where appropriate, including suspension of
registration and deletion of the offending contractor’s name from the register.
Part IV contains the financial provisions. These include the powers of the
Minister to impose a levy on construction work, and the establishment of a Fund
into which the same and other funds of the Authority should be paid.
Part V has several miscellaneous provisions, including the power of the Minister
to dissolve the Board where it acts in a manner inconsistent with the enacted
provisions, and the power to make regulations.
The First Schedule to the Bill has the list of bodies which may nominate
members to the Board.
The Second Schedule provides for the conduct of the business of the Board.
The National Construction Authority Bill, 2011 114
The Third Schedule specifies the classes of works in respect of which a
contractor may be registered to operate under the Act.
The enactment of this Bill shall occasion additional expenditure of public funds
in the first three years after its enactment, which shall be provided for in the
estimates. It is expected that thereafter the Authority shall become self-sustaining from its revenue.
Dated the 4th January, 2011.
C. M. OBURE,
Minister for Public Works.