ENGINEERS ACT No.

43 of 2011
“engineer” means a person registered under this Act as a professional or consulting engineer and
who holds a valid licence:
Registration as an engineer: This is found in (Sec 16)
One can either be registered as a professional or consulting engineer, a firm,
A person shall be eligible for registration under this Act as a professional or consulting
engineer if—
(a) For a professional engineer, that person—
i. . Is registered as a graduate engineer and has obtained practical experience as
prescribed under this Act;
ii. Has passed professional assessment examination conducted by the Board; and
iii. Is a corporate member of the Institution of Engineers of Kenya;

(b) For a consulting engineer, that person—

(i) Has practiced in a specialized engineering field as a professional engineer for a period
determined by the Board; and
(ii) Has achieved a standard of competence to enable him to practise as a consulting
engineer in that particular specialization.

Removal from Register (Section 29)

The Registrar shall remove from the Register—
(a) The name of any person—
(i) Found to be of unsound mind or a firm which has ceased to practise or wound up by a
court order;
(ii) Convicted of an offence under this act or any other law;
(iii) Whose name the board has directed that it should be removed from the register;
(gross misconduct, negligent etc)
(iv) Declared bankrupt;
(v) Who has failed to satisfy requirements for continuing professional development
programme for the time being in force;

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 (vi) Who causes or permits or suffers any sole proprietorship, partnership or body
corporate in which he is a sole proprietor, partner, director or shareholder to practise as a
firm prior to its registration by the board or after the board has suspended or cancelled its
registration;
(vii) Who has failed within a period of six months from the date of an inquiry sent by the
registrar by prepaid registered letter to the last known address appearing in the register
against his name, to respond to the, inquiry of the registrar; or
(viii) Who requests that his name be removed from the register, in which case that person
may be required to satisfy the board by way of an affidavit lodged with the registrar that
criminal proceedings under this act are not being or are not likely to be taken against him;

(b) Any person whose name has been incorrectly or fraudulently entered.

Practicing licence: issuance, renewal, suspension, cancellation (Sec 32)

Issuance
(1) A person shall not engage in the practice of engineering unless that person has been issued
with a licence and has complied with the requirements of this Act.
(2) A person applying for a licence shall be required to submit in the prescribed manner a
certificate of continuing professional development issued by the Board, a statutory declaration
confirming that no professional complaint has been made against him and pay a prescribed fee.
(3) A licence issued under subsection
(1) Shall be valid for one year from the 1st of January to the 31st December of that
particular year and may, upon expiry, be renewed.
(4) The Registrar shall enter into the Register the date of issuance of a licence of every person
licensed under this section.
(5) A person who contravenes subsection
(1) Commits an offence. 33.

Renewal of licence
(1) A person whose licence has not been renewed for a year or a longer period and who wishes
to have it renewed may apply to the Board.
(2) An application made under subsection shall be accompanied by—
(a) An affidavit in a prescribed form explaining the reasons for nonrenewal;
(b) Licence fees for the current practising period and at the Board’s discretion, any
unpaid fees, including penalties as prescribed by the Board; and
(c) Proof of fulfilment of all applicable conditions for renewal of a licence.
(3) The Board may, with sufficient cause, refuse to issue or renew a licence and shall
communicate the refusal and give reasons for such refusal to the applicant within twenty-one
days of making the decision.

Suspension of a Licence (Sec 35)

The Board may suspend a licence issued under this Act where—
(a) An offence under this Act in relation to the licensee is being investigated;
(b) Allegations of misconduct have been investigated and proved against a licensee;
(c) A false declaration was made in an application for a licence; or
(d) A licensee has contravened any provision of this Act.

Cancellation of a license (Sec.36)

Cancellation of a licence The Board shall cancel a licence where a licensee—
(a) Is convicted of an offence under this Act or the rules made thereunder;
(b) Fails to pay the Engineers Training Levy as required under this Act; or
(c) Ceases to be qualified for the issue of a licence under this Act.

Effect of removal of name, suspension or cancellation of a licence (Sec.37)

(1) A person whose name has been removed from the Register, licence has been suspended or
cancelled shall not engage in the practice of engineering or offer professional engineering
services or works during the duration of removal of name, suspension or cancellation of the
licence.
(2) The Registrar shall notify a person whose name has been removed from the Register, by
registered mail sent to the address appearing in the Register against his name immediately before
the removal.
(3) Subsection (2) shall not apply where a person’s name has been removed from the Register at
his request or with his consent.
(4) Where a directive has been made by the Board for the removal of a person’s name from the
Register, or for suspending a person’s registration under

Offences and Penalties

 Sec.44 False registration or licensing:
 Sec 45 Professional misconduct
One commits an offence of professional misconduct if that person—

(a) Deliberately fails to follow the standards of conduct and practice of the engineering
profession set by the Board;

(b) Commits gross negligence in the conduct of his professional duties;

(c) Allows another person to practise in his name, where that person—

(i) Is not a holder of a licence;

(ii) is not in partnership with him;

(iii) takes advantage of a client by abusing position of trust, expertise or authority;

(iv) lacks regard or concern for client’s needs or rights; or

(v) shows incompetence or inability to render professional engineering services or works;

(d) knowingly submits a land survey, valuation or environmental impact assessment

document prepared by a person who is not licensed to prepare such documents under any written
law being in force.

(2) A person who commits an offence under this section shall, after due process, be
deregistered, or be suspended and have his name removed from the Register for such a period as
the Board may determine.

Sec 46 Offences by persons or training institutions

 Admission of students in a training institution not recognized by the board

A person who, being in charge of a training institution which is not recognized by the Board as
an institution registered or seeking registration under this Act—
(a) Admits into the institution under his charge any person for purposes of training in the
engineering profession;
(b) Purports to be conducting a course of training or examining persons seeking registration
under this Act; or
(c) Issues any document, statement, certificate or seal implying that—
(i) The holder thereof has undergone a course of instruction or has passed an examination
recognized by the Board; and
(ii) the institution under his charge is recognized by the Board as an institution for
training of persons seeking registration,
 Use of the term ‘engineer’ while one is not qualified (unregistered and unlicensed)
 Employment of unregistered persons
 Practising without a license
 Obstructing of officers of the board

Section 57 General penalty

A person who commits an offence under this Act for which no specific penalty is provided for is
liable to a fine of not less than five hundred thousand shillings or to imprisonment for a term not
exceeding two years, or both.

OCCUPATIONAL HEALTH & SAFETY ACT 2007 (REPEALED FACTORIES ACT

CAP 514)

Duties/Functions/ roles occupier/employer

1. Duty to prepare a safety and health policy statement

2. Not to discriminate against employee e.g if the comment of the health risk exposed to
3. To establish a safety and health committee at the workplace in accordance with
regulations
4. Duty not to charge employees for things done or provided.
5. Safety and health audits at least once a year
 6. Every self-employed person shall— (a) take all necessary precautions to ensure his own
safety and health and that of any other person in his workplace or within the environs of
his workplace; use appropriate safe systems of work, preventive and control measures
and where not feasible, use suitable
7. Duty not to charge employees for things done or provided. Safety and health audits.
Duties of self-employed persons. Rev. 2010] Occupational Safety and Health No. 15 15
personal protective appliances and clothing required under this Act; (c) comply with any
safety and health rules, regulations instructions and procedures issued under this Act;

Duties of employee

(a) Ensure his own safety and health and that of other persons who may be affected by his acts
or omissions at the workplace;

(b) Co-operate with his employer or any other person in the discharge of any duty or
requirement imposed on the employer or that other person by this Act or any regulation made
hereunder;

(c) At all times wear or use any protective equipment or clothing provided by the employer for
the purpose of preventing risks to his safety and health;

(d) Comply with the safety and health procedures, requirements and instructions given by a
person having authority over him for his own or any other person’s safety;

(e) Report to the supervisor, any situation which he has reason to believe would present a hazard
and which he cannot correct;

(f) Report to his supervisor any accident or injury that arises in the course of or in connection
with his work; and

(g) With regard to any duty or requirement imposed on his employer or any other person by or
under any other relevant statutory provision, co-operate with the employer or other person to
enable that duty or requirement to be performed or complied with.
It’s about workplace health and safety of the employees

 Health,
o Cleanliness
o Overcrowding
o Ventilation
o Lighting
o Drainage of floor
o Sanitary convenience
o
 Safety and Welfare;
o supply of drinking water
o washing facilities

Accommodation for clothing.

48. There shall be provided and maintained for the use of employed persons adequate and
suitable accommodation for clothing not worn during working hours.

Facilities for sitting.

49. There shall be provided and maintained, for the use of all female workers whose work
is done standing, suitable facilities for sitting sufficient to enable them to take advantage
of any opportunities for resting which may occur in the course of their employment.

First-aid.
50. (1) There shall be provided and maintained so as to be readily accessible a first-aid
box or cupboard of the prescribed standard, and where more than one hundred and fifty
persons are employed an additional box or cupboard for every additional one hundred
and fifty persons.
 Offenses, Penalties and Legal proceedings
LABOUR RELATIONS ACT (REPEALED THE TRADE UNIONS ACT)

Consolidated the law relating to trade unions and trade disputes, to provide for the registration,
regulation, management and democratisation of trade unions and employers organisations or
federations, to promote sound labour relations through the protection and promotion of freedom
of association, the encouragement of effective collective bargaining and promotion of orderly
and expeditious dispute settlement, conducive to social justice and economic development and
for connected purposes

What is a trade union?

The Labour Relations Act defines a trade union as “an association of employees whose principal
purpose is to regulate relations between employees and employers, including any employers’
organisation”.

How is a trade union registered?

The process of registering a trade union takes six months and is provided for in sections 12, 13
and 14 of the Labour Relations Act, 2007, Laws of Kenya.

Registration of a trade union begins when any two persons apply for a certificate to promote the
establishment of a trade union wherein the name of the proposed trade union and any prescribed
information are specified. A certificate shall specify that the promoter may undertake lawful
activities towards establishment of a trade union.

Application for registration of a trade union shall be made to the registrar of trade unions within
six months of the date of the certificate issue. A trade union certificate of registration may be
withdrawn if the registrar has a reason to believe that the certificate was obtained by fraud,
misrepresentation, and mistake or that any person has undertaken unlawful activities in
contravention of the Labour Relations Act, 2007.

After obtaining a certificate from the registrar of trade unions, the trade union may apply for
registration within six months if they have:
Complied with the Labour Relations Act, 2007
The trade union has adopted a constitution that complies with the requirements of the Labour
Relation Act, 2007 and requirements set out in the first schedule
The trade union has an office and postal addresses within Kenya
No other trade union is already registered that is sufficiently representative of the whole or
substantial proportion of the interests in respect of which the applicants seek registration
Only members in the sector specified in the union constitution qualify for membership of the
trade union
The name of the trade union is not the same as that of an existing trade union
The decision to register the trade union was made at a meeting attended by at least fifty members
of that trade union
The trade union is independent of direct or indirect control of any employer or employers
association
The trade union’s sole purpose is to pursue the activities of a trade union.
How does one become a member of a trade union?

Section 32 of Labour Relations Act, 2007, allows for an employee who is above 16 years to
enjoy the rights of membership of a trade union.

A voting member of a trade union must be one employed in the sector for which the trade union
is registered and his/ her subscriptions must not be more than 13 weeks in arrears.

Can managers form and or belong to trade unions?

The level of unionisation of employees is provided for in Appendix C of the Industrial Relations
Charter. The charter prohibits persons having authority in their organisations to hire, transfer,
appraise, suspend, promote, reward, discipline and handle grievances, from being included in the
union representation.
Therefore, in view of the foregoing, managers cannot form and belong to trade unions. But
managers can form a staff association to protect and promote their interests with respect to terms
and conditions of or relating to employment.

A staff association will never assume the legal status of a trade union unless it conforms to the
requirements of sections 12, 13 and 14 of Labour Relations Act, 2007, Laws of Kenya.

Under what circumstances should an employer pay agency fees to a trade union?

Section 49 of The Labour Relations Act, 2007 provides for agency fees payment to a trade union
by an employer after effecting deductions from an employee’s salary

The process of agency fee deductions begins when management is approached by the trade union
to submit names of unionisable employees to them in order to identify the employees who have
been employed under terms and conditions of a prevailing collective bargaining agreement
between the trade union and the employer. Agency fees are paid to a trade union that has a
registered recognition agreement with an employer in the industrial court and has requested the
minister for labour requiring the employer bound by the collective agreement to deduct agency
fees from the wages of unionisable employees who are not members of the trade union but are
employed under terms and conditions of the collective bargaining agreement.

The rate of agency fees must not be higher than the normal union subscription fees deducted
from union members through a check off system.

INTELLECTUAL PROPERTY LAW

Intellectual property law is interested in protecting the product of human mind or product of
creation. IP is sometimes regarded as protecting the physical embodiment of an otherwise
intangible asset.
Manifestations of IP
Manifestations of IP
o Patents
o Utility models
o Copyright
o Trade Marks
o Trade Secrets

Patents – the certificate that you get from the patent office after you have made an invention.
The relationship that exists between an inventor on one hand or patentee and the patent office,
the estate or society. It is a juridical relationship between an inventor or patent owner on one
hand and on the other hand the patent office or the state or society in general. The inventor is that
person who has brought out a new process or a new invention. A patent owner is the person who
holds the rights. The state here is Kenya and the office is Kenya Intellectual Property Institute
(KIPI). To get a patent one must have an invention, it must be new (novel). In the case of
Windsurfing v Tabur Marines – a boy used to play with a play boat, later on a company made
a similar play boat and wanted a patent on it, they were denied because it was not new. It must
constitute an inventive step – this is the doctrine of non-obviousness i.e. is it obvious to
PHOSITA (person having ordinary skill in the art), an invention need not be complex for it to
constitute an inventive step, it may be simple but not obvious. Patents must be useful (doctrine of
utility)-it must be capable of industrial application.

Utility Models – these are sometimes called petty patents. The concept is that there are certain
innovations that don’t need to be entirely new, it might be new in Kenya but not necessarily
elsewhere, the newness need not be absolute and there need not be an inventive step, it must be
useful. Kenya has both patents and utility models, Kenya Ceramic Jiko (KCJ) from the metal
jiko we realised the need to conserve energy, the idea was that metal was making energy
disappear but ceramic would conserve energy. Utility Models can be used to protect Kitenges,
Kikoi’s etc which is also a case of copyrights.

Copyright: - protects original expressions embodied in material, tangible or fixed form. © it

starts with an idea, it is expressed and the expression is then embodied in material form. For
example a writer gets the idea to write, writes notes down on a piece of paper and then the book,
this is the idea, expression dichotomy. Ideas are not protectable in intellectual property
expressions are. Copyright is more dynamic 3 areas where copyright is useful i.e. in software,
literature and entertainment amongst others.
Copyright law is intended to protect and to reward original expressions embodied in tangible
material or fixed form. In the first category an idea does not infringe copyright but once it is
expressed in some form, then it becomes tangible when expressed, you don’t only have the idea
in your head you have expressed it and its somehow in fixed form. Not everything that is new is
patentable unless they are original expressions and are in original form.

Subject matter of copyright is divided into two broad categories

Primary works; Americans call these works of original authorship. These include literally works,
artistic work, musical work ,sound recordings are physical embodiments of primary works.

Secondary Works – sometimes called neighbouring related or allied.

Primary works include - These include literally works, artistic work, musical work. Literally
works are defined under Section 2 of Copyright Act as meaning irrespective of literally
quality. When a play is in writing it is a literally work but the moment you perform it is called a
performance. A treatise is a book that deals with one subject in great detail. Essays and articles
are also copyrightable. Letters are copyrightable. Reports are copyrightable. Memorandum
including MOUs are copyrightable, summons are copyrightable. Charts and tables, computer
programs or software, tables and compilation of data are copyrightable.

Literally works do not include judicial decisions and statutes. A headnote is copyrightable.
Musical works – means any musical work irrespective of musical quality and includes
works composed for musical accompaniments.

Artistic works – means irrespective of artistic qualities, paintings are artistic works, etching,
lithographs, woodcarvings and maps etc. photographs which are not comprised in audiovisual
 works i.e stills, the photographer owns the copyright in a picture for exercising skill and
judgment in taking the photo, the poser is not responsible for the composition of the photograph.

Trade Marks
™ - What is the difference between a trade mark and a trade name? trademark falls under the
realm of Intellectual Property. Since colonial times we have had trademark registered from as
early as 1901 but the system then was to register your trademark in UK for it to have value in
Kenya.

™ Can be anything, combination of names, combination of colours, designs all these can make a
trademark. Difference between ™ and ® some people will register a mark and not necessary for
the purpose of trademark. Trademarks are normally territorial for the reason that they are
registered in each country. If one registers Mwarsie for shoes, someone else can go and register
the same trademark in Ethiopia. A trademark like Coca cola is universal to the point of being
generic.

Trade names are registered with the registrar of companies to use in the course of trade. One can
register a trade name if they have used it for a while as a trademark. Certification marks give
certification as to the quality of the work for example the KBS logo shows that the quality is
approved by Kenya Bureau of Standards.

Use of Trademark
1. To distinguish the goods of one traded from those of another.
2. It refers to a particular quality more so like designer quality, like Gucci, Channel
etc, the trademarks are associated with quality.
3. Trademark protects the investment of the inventor, labour capital and goodwill, this
attribute has been questioned that it has no legal basis.
4. Identifying the origin of a product i.e when you see Omo you associate it with
Unilever. This issue has become redundant in scholarly terms because of the issue of
franchising e.g. Nandos in Kenya makes different tasting chicken from the Nandos in
South Africa.
5. To promote the marketing and sale of a product. When one has a trademark.
According to David Bainbridge says that the purpose of a trademark are the distinguishing aspect,
protection of goodwill and to protect the consumers against confusion.
Trade Secrets
Trade secrets are sometimes called undisclosed information as TRIPS calls them then they can
also be called confidential information, know how. Trade secrets have 3 major characteristics
1. Information must be secret or confidential – not disclosed to other people;
2. Information must have commercial value – commercial value by reason of its
confidentiality;
3. There must be an obligation to keep that information secret – confidential
obligation. This is done through non-disclosure agreements NDA or the
confidentiality clause in the contract of employment. Coca cola is a good example in
discussing trade secrets law, the black syrup base of Coca cola is not patented but
protected by Trade Secret Law. If it was protected by trademark, it would have
expired by now.
Diana Princess of Wales as a Trade Secret – character merchandising, Diana dolls, Diana’s
portrait on plates etc. Diana’s letters to Major James Hewitt were a trade secret.
David Beckham – David Beckham merchandise -

Remedies/Defences & Sanctions

More often than not these are clearly set out in the IP Act of 2001 and there are civil, criminal
remedies. The first thing a person does is to get an injunction either interim or
permanent. Permanent if the infringement is found to be subsisting.

Damages
Under Section 106(b) of the IP Act of 2001 the main purpose of granting damages is to
compensate the Plaintiff done by the patent infringor, punitive damages are only awarded where
the act amounts to criminal activity but courts usually give compensatory damages. The plaintiff
is entitled to any other remedy provided by the law.

Delivery up – is when the infringer is ordered to deliver all the counterfeit or infringing material
to the court and the court disposes the infringing material as it deems fit.
Criminal Sanctions:
This are all available under the IP Act and in Kenya what we have for example the find of KShs.
50,000/- the amount the infringer makes is much more than the fine and therefore it does not
seem to be a deterrent. One of the issues that have been raised in this regard is that the fines and
the sentences which are between 3-5 years don’t act as a deterrent. This is an Act passed in 2001
and we hope KIPI will address this issue.. it is noteworthy that a lot of jurisdiction do not
criminalize Intellectual Property but in Kenya there has always been criminal sanctions for
infringement. There is a big problem however with the enforcement of these rights probably
because of the intangible nature if Intellectual Property.

Bio-technology
This has in the recent past assumed a significant role with regard to medicine, agriculture where
one can modify organisms to increase the yield of plants etc. the IP Act has certain things
excluded from patentability and one of them is the issue of life forms. In the US practically
anything under the sun can be patented. One of the leading cases is Diamond v Chakarbaty and
one of he main issues here was whether artificially created life forms can be patented. At first
they agree to patent the process that created the bacteria but refused to patent the bacterium itself
at appeal they did agree to patent the bacterium that was being created from the process.