The County Licensing ( Uniform Procedures) Bill, 2022

SPECIAL ISSUE

Kenya Gazette Supplement No. 196 (Senate Bills No. 9)

REPUBLIC OF KENYA

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KENYA GAZETTE SUPPLEMENT

SENATE BILLS, 2022

NAIROBI, 29th November, 2022

CONTENT

Bill for Introduction into the Senate-

The"County"Licensing"(Uniform"Procedures)"Bill,"2022

PAGE .......................... 133

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI

133

THE COUNTY LICENSING (UNIFORM PROCEDURES) BILL, 2022

Clause

PART I - PRELIMINARY

• 1 - Short title and commencement.
• 2 - Interpretation.

PART II - OBLIGATIONS

• 3 - Guiding principles.
• 4 - General duty of a licensing authority.
• 5 - Principles of interpretation and application.
• 6 - Obligations of county governments.

PART III - LICENSING PROCEDURE

• 7 - Application for granting, amendment, renewal restoration and replacement of licence.
• 8 - Single application process.
• 9 - Notice for further information.
• 10 - Consultation.
• 11 - Advertising of applications.
• 12 - Withdrawal of application.
• 13 - Period of determination of application.
• 14 - Determination of application.
• 15 - Notice of decision on application.
• 16 - Issuance of licence.
• 17 - Duration of licence.
• 18 - Conditions for issuance of licence.
• 19 - Variation of conditions of a licence.
• 20 - Cancellation of licence.
• 21 - Review of decisions.

PART IV - ADMINISTRATION OF LICENSING SCHEMES

• 22 - Change in particulars.
• 23 - Administration of register of licences.
• 24 - Licensing fees
• 25 - Service of notices.
• 26 - Recovery of unpaid fees.
• 27 - Regulations.
• 28 - County legislation.

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THE COUNTY LICENSING (UNIFORM PROCEDURES) BILL, 2022

A Bill for

AN ACT of Parliament to establish standard uniform procedures for licensing by county governments; and for connected purposes.

ENACTED by the Parliament of Kenya, as follows-

PART I-PRELIMINARY

1. This Act may be cited as the County Licensing (Uniform Procedures) Act, 2022, and shall come into operation upon the expiry of six months from the date of assent of this Act.

2. In this Act-

'Cabinet Secretary' means the Cabinet Secretary responsible for matters relating to licensing;

'county executive committee member' means the county executive committee member responsible for matters relating to finance in the respective county;

'electronic communication' means any information transmitted, sent, received or stored in magnetic, optical, computer memory, microfilm or similar device; and

'licensing authority' means a person authorized by legislation to issue a licence.

PART II - OBLIGATIONS

3. A person shall, in the implementation of this Act or enactment of the respective county legislation, take into account - 2. (a) ! the need to protect consumers of goods and services, ensure public safety and promote environmental protection; 3. (b) ! the need to maintain public confidence in the respective sectors under which the licence is issued and that the imposition of licensing fees is carried out in a manner that does not hamper the respective business or industry; 4. (c) ! the need to ensure access to information relating to the conditions for issuance of licences and

Short title and commencement.

Interpretation.

Guiding principles.

licensing procedures and in accordance with the provisions of the Access to Information Act;

• (d) ! the need to ensure that the licensing procedures are simple and that licensing services are accessible to a person applying for a licence;
• (e) ! cost effectiveness of the licensing process;
• (f) ! the importance of declaring and upholding proper standards of conduct by licensees;
• (g) ! the need to promote efficiency and effectiveness in the administration of the licensing processes; and
• (h) ! the licensing processes are undertaken in a fair and transparent manner.

4. A licensing authority shall ensure that the process of applying for a licence from the respective authority is efficient and effective by -

• (a) ! providing a mechanism for a person to make a simultaneous application for more than one licence;
• (b) ! preventing multiple licensing procedures;
• (c) ! ensuring that applicants are given adequate opportunity to make representations on an application for a licence; and
• (d) ! adhering to timelines for the processing of licensing applications as set out in this Act or the relevant licensing legislation.

5. The following principles shall apply to the interpretation and application of this Act and licensing legislation enacted by a county government -

• (a) ! simplicity of the process of application for a licence;
• (b) ! equity, transparency and accountability in the administration of licensing procedures
• (c) ! ensuring that the licensing framework is consolidated and requires persons to hold a minimum number of licences and be subject to a minimum number of different licensing processes;

No. 31 of 2016.

General duty on licensing authority.

Principles of interpretation and application.

• (d) ! access to information relating to the licensing requirements and procedures;
• (e) ! enabling licence holders to respond to changes in the market quickly with minimum regulatory friction; and
• (f) ! certainty by having in place clear and consistent licensing conditions.

6. A county government shall, in establishing and administering a licensing regime -

• (a) ! protect the rights of consumers in the respective county;
• (b) ! promote the regulation of developing markets;
• (c) ! ensure that the quality of goods produced and services delivered are of high standard;
• (d) ! effectively administer control over persons engaged in activities that are potentially risky as threatening to the life or health of individuals, property and State, public interest or nature and cultural heritage; and
• (e) ! ensure that the licensing fees imposed with respect to the licence are not prohibitive and do not hinder the conduct of business.

PART III - LICENSING PROCEDURE

7. (1) An application for the grant, renewal, transfer or replacement of a licence or a variation of a condition for the issuance of a licence shall -

• (a) ! be made in writing and in the prescribed form;
• (b) ! contain such information as is prescribed under the respective licensing legislation; and
• (c) ! be signed by the applicant or in the case of an application for transfer of a licence be signed by the applicant and the proposed transferee.

(2) A licensing authority shall, within three years of the commencement of this Act, put in place mechanisms to enable the electronic application for grant, renewal, transfer or replacement of a licence or a variation of a condition for the issuance of a licence.

Obligations of county governments.

Application for granting, amendment, renewal restoration and replacement of licence.

(3) A person may make one application to the same licensing authority in relation to more than one licence with respect to goods or services falling within the same sector.

(4) A person shall pay to the relevant licensing authority the application fees payable under the relevant licensing legislation.

8. A county government shall, in the enactment of legislation and for the effective administration of the licensing processes, prescribe procedures for a single application process with respect to an application for more than one licence.

9. (1) A licensing authority may serve a notice on an applicant requiring the applicant to provide such further information as may be required to determine an application for a licence under the respective licensing legislation.

(2) A notice under subsection (1) shall be made within three days of receipt of the application and shall specify the time within which the applicant shall furnish the information requested in the notice and the person to whom such information shall be submitted to.

(3) The licensing authority may reject an application without dealing with it any further if the applicant fails to comply with the notice under subsection (1).

(4) A person whose application has been rejected under subsection (3) shall forfeit any application fees paid to the respective licensing authority.

10. (1) Where a licensing authority intends to vary the conditions of fees payable for the issuance of a licence, the licencing authority shall -

• (a) ! undertake public participation and consult with stakeholders likely to be affected at the formative stage of the proposal;
• (b) ! undertake a regulatory impact assessment which shall include a costs benefit analysis of the proposed variation;
• (c) ! provide sufficient information to members of the public to enable them to make an informed decision;

Single application process.

Notice for further information.

Consultation.

• (d) ! allow for adequate time for consideration of proposals by members of the public;
• (e) ! take into account the comments and proposals submitted under paragraph (a); and
• (f) ! publicize the final decision taken with respect to the proposals.

(2) In carrying out public participation under subsection (1), the licensing authority shall adhere to the requirements set out under section 91 of the County Governments Act.

11. (1) A licensing authority shall where the respective legislation requires an application to be advertised, publish a notice of the application in at least one daily newspaper of wide circulation in the county and shall cause to be advertised in a local radio station or through such other electronic media as the authority shall consider appropriate.

• (2) A notice under subsection (1) shall include -

2. (a) ! a statement for the submission, to the licensing authority by any person, of relevant information with respect to the application; and 3. (b) ! set out the procedure by which, and the time within which, submissions shall be made to the licensing authority.

(3) The date referred to in subsection 2(b) shall not be earlier than fourteen days and not later than twenty eight days after the date on which a notice is first published under this section.

12. (1) An applicant may withdraw an application at any time before a licence is issued under section 15.

(2) A person who withdraws an application under subsection (1) shall forfeit any fees paid in connection with an application made under this Act or the respective county licensing legislation.

(3) Notwithstanding subsection (2), a county government may enact legislation providing for circumstances under which fees paid by an applicant for a licence may be refunded.

No. 17 of 2012.

Advertising of applications.

Withdrawal of application.

1 3. (1) A licensing authority shall be deemed to have allowed an application if the licensing authority fails to determine the application within twenty-eight days after the application is made or within the time prescribed in the relevant licensing legislation, whichever is earlier.

(2) In calculating a period referred to in subsection (1), the following periods shall be excluded-

• (a) ! any period between the date on which a request for further information or supporting evidence is made under section 9;
• (b) ! any period between the date on which a notice is published under section 9(2) and the date fixed by the notice as the date by which any submission with respect to the application must be lodged;
• (c) ! any period, not exceeding fourteen days, between the date on which the licensing authority refers the application to another person and the date on which the authority receives a response to that reference from that other person; or
• (d) ! any period between the date on which the licensing authority refers the applicant for assessment and the date on which the authority obtains or receives the results of an assessment where the licensing authority has referred the application for assessment in connection with the determination of the application.

14. A licensing authority may-

• (a) ! grant an application for a licence unconditionally;
• (b) ! grant the application subject to conditions authorised by the relevant licensing legislation; or
• (c) ! refuse the application.

15. (1) A licensing authority shall inform the applicant of its decision under section 14 within seven days of the decision.

(2) Where an objection has been raised with respect to an application for a licence, the licensing authority shall inform, in writing, the person objecting to the issuance of a licence of its decision with respect to the objection.

Period of determination of application.

Determination of application.

Notice of decision on application.

(3) If the decision of a relevant licensing authority is to refuse an application, the authority shall inform the applicant, in writing, of the reasons why the application was refused.

16. (1) A licensing authority that grants an application shall issue to the applicant an original or replacement licence, as the case requires.

• (2) A licence shall be issued under subsection (1)-

2. (a) ! when the relevant licensing authority informs the applicant of its decision to grant the licence; and 3. (b) ! upon the payment of any fee required by the relevant licensing legislation.

• (3) A licence issued under this section shall include-

5. (a) ! a unique identifier; 6. (b) ! name of the licensing authority; 7. (c) ! the name of the licensee; 8. (d) ! the nature of the business to which the licence relates; 9. (e) ! a reference to the provisions of the relevant licensing legislation; 10. (f) ! the authority conferred by the licence; 11. (g) ! conditions to which the licence may be subject; 12. (h) ! the date on which the licence comes into force; 13. (i) ! the date on which the licence expires; and 14. (j) ! such other information that the relevant licensing authority may consider appropriate to include.

17. (1) A licence comes into force on the date on which it is issued or on a date specified on the licence.

(2) A renewed licence comes into force on the date following the expiry date of the licence it renews and for the period stipulated in the licence.

(3) Subject to the provisions of the relevant licensing legislation, if an application for renewal of a licence is made before the date on which the licence would expire, the licence remains in force until the date on which the Issuance of licence.

Duration of licence.

applicant is notified of the relevant licensing authority's decision on the application to renew the licence.

18. (1) A licensee shall be required to observe the following conditions in addition to those that may be imposed by the licensing authority or under the respective county legislation-

• (a) ! to provide the service or carry out the business specified in the licence;
• (b) ! to comply with all applicable laws and the conditions for issuance of the licence;
• (c) ! to provide the licensing authority with information with respect to any change in its directorship or shareholding in accordance with section 22;
• (d) ! to pay such fees as may be prescribed; and
• (e) ! to maintain, and where required, submit to the licensing authority such information as may be necessary for the continued licensing of the licence holder.

(2) A licensing authority shall, unless the circumstances or facts relating to the application vary and the licensing authority considers it proper, impose the same conditions for the issuance of the same type of licence.

19. (1) Subject to the provisions of this Act and licensing legislation enacted by the relevant county government, a licensing authority may vary a condition attached to a licence.

(2) Before varying a condition of a licence under subsection (1), the licensing authority shall give notice in writing to the affected licensees and by publication in a newspaper of nationwide circulation and through such other media as the licensing authority shall consider appropriate.

• (3) A notice under subsection (2) shall-

2. (a) ! specify the variation intended to be made with respect to the licence; 3. (b) ! set out the reasons for such variance; 4. (c) ! specify the time within which the variation shall take effect;

Conditions for issuance of licence.

Variation of conditions of a licence.

• (d) ! require the licensee and any other person to submit any representations within thirty days from the date of the notice;
• (e) ! specify the place from which information relating to the variation may be obtained; and
• (f) ! set out such further information as the licensing authority may consider necessary.

(4) Where a variation is intended to remedy or prevent an act which may be against public interest, the licensing authority may vary the condition and inform the licensee in writing within one day of such variation and reasons thereof.

20. (1) A licensing authority may cancel a licence if the licensee -

• (a) ! fails to meet any condition imposed by the licensing authority;
• (b) ! fails to comply with the provisions of the licensing legislation; or
• (c) ! surrenders the licence to the relevant licensing authority together with a notice setting out a request that the licence be cancelled.

21. (1) An applicant or any other person who is aggrieved by a decision of a licensing authority with respect to the application or cancellation of a licence may apply for a review of the decision -

• (a) ! in accordance with the relevant licensing legislation; or
• (b) ! to the extent to which the relevant licensing legislation does not provide the applicant with such right, to the county executive committee member responsible for matters relating to the subject of the licence.

(2) An application for review shall be determined within twenty-one days of the application for review or such time as may be prescribed by the relevant licensing legislation, whichever is shorter.

Cancellation of licence.

Review of decisions.

PART IV - ADMINISTRATION OF LICENSING SCHEMES

22. A person who holds a licence shall notify the respective licensing authority of any change that occurs in the licensee's name, directorship, shareholding, address or registered particulars, within fourteen days after the change.

23. (1) A licensing authority shall keep and maintain a licence register.

(2) A register under subsection (1) shall contain-

• (a) ! information contained in a licence and specified under section 16(3);
• (b) ! the type of entity to which the licence is issued;
• (c) ! information with respect to any re-issuance, revocation, suspension, transfer or variation of a licence; and
• (d) ! such other information as may be prescribed under the respective county legislation.
• (3) A licensing authority shall-
• (a) ! make the register available for inspection by members of the public; and
• (b) ! provide such information with respect to a licence issued by the licensing authority upon application under the respective licensing legislation.

(4) A licensing authority to which an application for information is made may charge a prescribed fee for the provision of information under subsection (3) and the fee shall not exceed the actual cost of making copies of such information and where applicable, supplying the information to the applicant.

24. (1) A licensing authority shall be guided by the following principles in setting the fees for issuance of a licence under the respective county legislation-

• (a) ! authority to set the fees and the setting of fees within the scope of the authority;
• (b) ! need to ensure efficiency in the delivery of goods and services;

Change in particulars.

Administration of register of licences.

Licensing fees.

• (c) ! accountability;
• (d) ! public participation;
• (e) ! avoidance of multiplicity in the issuance of licences and multiple imposition of fees where goods are transported across different counties.
• (f) ! cross-subsidization where fees collected for providing a category of goods or services covers the costs incurred in providing goods and services in another category in accordance with existing legislation;
• (g) ! adherence to existing policy on the charging and collection of fees; and
• (h) ! avoidance of multiple licensing in a specific sector.

(2) Each county government shall formulate a licensing fees policy for the imposition of fees and issuance of licences by the respective county.

(3) A county government shall, in formulating a licensing fees policy, be guided by the principles set out under this Act.

(4) A licensing authority may impose -

• (a) ! a licence fee for an application for the grant, transfer or renewal of a licence; and
• (b) ! an annual licence fee for administering and monitoring a licence.

(5) In determining the fee payable with respect to a licence, a licensing authority-

• (a) ! shall act in accordance with the licensing fees policy;
• (b) ! may fix different fees with respect to the different types of licences;
• (c) ! may waive the requirement for fees and prescribe conditions for such a waiver;
• (d) ! shall take into account the costs incurred in administering the licensing scheme; and
• (e) ! shall ensure that the fees set do not adversely affect competition and investment.

25. (1) Where a licensing authority is required to serve a notice on a person under this Act or any other licensing legislation, the authority shall serve the notice-

(a) ! in the case of an individual by-

• (i) ! delivering it personally to the individual;
• (ii) ! sending it by registered post, addressed to the individual at the address indicated on the application as the individual's postal address, for service of notices;
• (iii) ! leaving it with an authorised person at the individual's place of residence or business; or
• (iv) ! sending it by means of electronic communication to the individual at the address indicated in the application as the individual's address for service for electronic communication; and

(b) ! in the case of a company by-

• (i) ! delivering it to the person concerned in the company's management and authorized to receive documents on behalf of the company;
• (ii) ! sending it by registered post, addressed to the company at the address indicated on the application as the company's postal address, for service of notices;
• (iii) ! leaving it with a person authorised to accept service on behalf of the company; or
• (iv) ! sending it by means of electronic communication to the company at the address indicated in the application as the company's address for service for electronic communication.

(2) A notice required to be served on joint applicants or joint licensees shall be deemed to have been served on all of them when it is served on any of them.

26. A fee payable with respect to a licence or an application for a licence may be recovered by the relevant licensing authority as a debt in a court of competent jurisdiction.

Service of notices.

Recovery of unpaid fees.

27. (1) The Cabinet Secretary may make Regulations for the better carrying out the provisions of this Act.

(2) For the purposes of Article 94(6) of the Constitution -

• (a) ! the power of the Cabinet Secretary to make regulations shall be limited to bringing into effect the provisions of this Act and the fulfilment of the objectives specified under subsection (1); and
• (b) ! the principles and standards set out under the Interpretation and General Provisions Act and the Statutory Instruments Act, 2013 in relation to subsidiary legislation shall apply to regulations made under this Act.

28. (1) A county assembly may enact legislation to give further effect to the provisions of this Act in the respective county.

(2) Notwithstanding the generality of the provisions of subsection (1), a county assembly may enact legislation to provide for-

• (a) ! singular licence application framework;
• (b) ! conditions applicable to different categories of licences;
• (c) ! measures to ensure ease and mitigating the cost of doing business within the respective county;
• (d) ! prescribed forms for the application for a licence;
• (e) ! a fee that may be imposed with respect to an application made under this Act;
• (f) ! conditions for the refund of any fees paid with respect to an application made under this Act;
• (g) ! framework for the review of a decision of a licensing authority under this Act; and
• (h) ! such other matter as the respective county assembly may deem necessary for the better carrying out of the provisions of this Act.

Regulations.

Cap. 2. No. 23 of 2013.

County legislation.

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MEMORANDUM OF OBJECTS AND REASONS

Statement of the objects and reasons for the Bill

The principal objective of this Bill is to put in place uniform procedures for licensing of various activities by counties. One of the ways in which county governments generate revenue is through the issuance of licences for activities related to the functions of county governments under Part 2 of the Fourth Schedule to the Constitution. As there are forty-seven county governments, it has become apparent that there are varied procedures in applying for licences which has had a negative impact on the ease of doing business in the counties. This Bill therefore proposes to establish uniform procedures for licensing to ensure certainty in the process and ultimately encourage private sector players to do business in the counties.

Statement on the delegation of legislative powers and limitation of fundamental rights and freedoms

Clause 27 of the Bill delegates legislative powers to the Cabinet Secretary to make regulations generally for the better carrying into effect of any provisions of this Bill once enacted.

The Bill however does not limit fundamental rights and freedoms.

Statement on how the Bill concerns county governments

Part 2 of the Fourth Schedule to the Constitution provides the functions of county governments which necessarily include the licensing of certain types of activities which affect these functions. The Bill therefore concerns county governments in terms of Articles 110 (1) (a) of the Constitution in that it contains provisions that affect the functions and powers of the county governments as set out in the Fourth Schedule to the Constitution.

Statement that the Bill is not a money Bill within the meaning of Article 114 of the Constitution

This Bill does not propose any additional expenditure of public funds. This Bill is therefore not a money Bill within the meaning of Article 114 of the Constitution.

Dated the 9th November, 2022.

MARIAM OMAR, Senator.