ADVOKS GLOBAL · KENYA
Protection of Traditional Knowledge and Cultural Expressions Act
37. Offences and penalties
Edition: 2022-12-31 · In force
37. Offences and penalties
(1)A person who—(a)has in possession or control in the course of trade;(b)manufactures, produces or makes in the course of trade;(c)sells, barters or exchanges, offers or exposes for sale, disposes, distributes, hires out;(d)exposes or exhibits for the purposes of trade;(e)imports into, transit through, trans-ships within or exports from Kenya, except for private, domestic, industrial and commercial use of the importer or exporter, as the case may be; or(f)in any manner develops any goods or service using unauthorized traditional knowledge or cultural expressions in the course of trade,commits an offence and is liable on conviction to imprisonment for a term not exceeding five years, or to a fine of not exceeding five hundred thousand shillings in respect of each article or item involved or to imprisonment for a term not exceeding ten years or to a fine not exceeding one million shillings.(2)A person who without authorization makes a non-customary use of traditional knowledge or cultural expressions whether or not such use is of a commercial or industrial nature, commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both.(3)A person who fails to acknowledge the source of the traditional knowledge or cultural expression commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both.(4)A person who distorts mutilates or does other modification or derogatory action in a way prejudicial to the cultural interests of the community concerned commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding five years or both.(5)A person who makes false, confusing or misleading indications or allegations which, in relation to goods and services that refer to, draw upon or evoke the traditional knowledge or cultural expressions, in a way that suggests an endorsement or linkage with the holders commits an offence and is liable, on conviction, to a fine not exceeding two million shillings or imprisonment for a term not exceeding ten years or both.(6)A person who without authorization acquires and exercises intellectual property rights over protected traditional knowledge or cultural expressions commits an offence and is liable, on conviction, to a fine not exceeding two million shillings or imprisonment for a term not exceeding ten years or both.(7)A person who without authorization, discloses, subsequently uses or acquires and exercises intellectual property rights over secret traditional knowledge or cultural expressions commits an offence and is liable, on conviction, to a fine not exceeding two million shillings or imprisonment for a term not exceeding ten years or both.(8)A person who imports an article or other thing into Kenya that relates to traditional knowledge or cultural expressions of Kenya knowingly, or reasonably ought to have known, that the import would contravene this Act had the thing or article been created in Kenya commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or both.(9)A person who without authorization exports an article or other thing out of Kenya that relates to traditional knowledge or cultural expressions for a non-traditional use whether or not such use is of a commercial or industrial nature commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or both.(10)A person who makes or has in possession any contrivance used or intended to be used for the purpose of exploiting unauthorized traditional knowledge and cultural expressions an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding three years or both.(11)A court that has convicted a person of an offence under this section—(a)shall, when considering which penalty to impose, take into account any risk that may arise from the presence or use of the traditional knowledge or cultural expressions in question;(b)may take consider, any evidence to the effect that such person had fully, truthfully and to the best of his ability disclosed to an inspector who investigated the offence, all information and particulars available to that person relating to—(i)the source of the unauthorized traditional knowledge or cultural expressions that is the subject of the offence;(ii)the identity of the persons involved in the importation, exportation, manufacture, production or making of those unauthorized traditional knowledge or cultural expressions;(iii)the identity and the addresses or whereabouts of the persons involved in the distribution of the traditional knowledge or cultural expressions; and(iv)the channels for the distribution of those traditional knowledge or cultural expressions.(12)Where an offence under this Act is committed by a body corporate and there is proof that the offence was committed with the consent or connivance of, or is attributable to, negligence on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, both the responsible person and the body corporate commit an offence.(13)A citizen of Kenya, or a person who permanently resides in Kenya, who commits an act outside Kenya that constitutes an offence under this Act if committed in Kenya, commits such an offence and is liable on conviction to the same penalty prescribed for such offence under this Act.(14)Despite subsection (13) a person may not be convicted of an offence under subsection (12) if such a person has been acquitted or convicted in the country where that offence was committed.