G/ADP/Q1/KEN/5  
G/SCM/Q1/KEN/5  
G/SG/Q1/KEN/4  
 
18 November 2019 
(19-7832) Page: 1/7 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  
Committee on Safeguards  Original: English  
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5, 32.6 AND 12.6 OF THE AGREEMENTS  
RESPONSES TO QUESTION S1 POSED BY THE UNITED  STATES  
REGARDING THE NOTIFICATION  OF KENYA2 
The following communication dated 15 November 2019, is being circulated at the request of the 
delegation of Kenya . 
 
_______________  
 
 
The United States thanks Kenya for its notification concerning its trade remedy laws (i.e., Kenya 
Trade Remedies Act), and poses the following questions:  
 
Question 1  
In Part I, Article 2, Kenya defines the domestic market as "the market within the country 
including the East African Community (EAC)  as a single customs territory. " (emphasis 
added) On page 4 of the same section, Kenya defines interested parties, in part, as a 
producer of the like product in Kenya . Additionally, various other articles in the Kenya 
Trade Remedies Act, in both the antidumping and injury sections refer to domestic market 
and like product as the product produced in Kenya, as opposed to the enti re EAC.  The 
injury sections of the Kenya Trade Remedies Act also appear to limit the analysis of injury 
to the domestic industry in Kenya.  
• Will the Kenya Trade Remedies Agency ( "Agency ") conduct trade remedy 
investigations (i.e., antidumping (AD), counterv ailing duty (CVD), safeguard 
(SG)) on a national level (i.e., only on behalf of the producers/exporters in 
Kenya) or on behalf of the entire EAC?  If the former, please clarify the definition 
of "domestic market, " which presently includes the EAC  in its ent irety.  
Reply : 
Kenya Trade Remedies Agency will conduct trade remedies investigations on behalf of 
producers/exporters within Kenya only. The Agency is established as a national institution with 
jurisdiction within the Kenyan borders and not East African Co mmunity. Section 5 of the Act which 
spells out the functions of the Agency is clear that the investigations on dumping, subsidies and 
safeguards will be done within Kenya.  
Kenya is a Member of the East Africa Community (EAC) Customs Union established by Ar ticle 2 of 
the EAC Customs Union Protocol in accordance with Article 5 of the Treaty establishing the EAC. 
Article 1 of the EAC Customs Union Protocol defines the territory covered by EAC Partner States as 
a single Customs territory. This Customs territory  is a single market since it uses one customs law 
and a Common External Trade therefore a domestic market within the Meaning of the EAC Customs 
                                                
1 G/ADP/ Q1/KEN/ 4 - G/SCM/ Q1/KEN/ 4 - G/SG/ Q1/KEN/ 3 (circulated 8  October 2019) . 
2 G/ADP/N/1/KEN/3  - G/SCM/N/1/KEN/3  - G/SG/N/1/KEN/2 ( circulated  21 May 2019) . G/ADP/Q1/KEN/5 • G/SCM/Q1/KEN/5 • G/SG/Q1/KEN/4  
 
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  Law. However, the administration of the Customs law is by the autonomous Customs Authorities of 
each EAC Partner State.  
• Will AD/CVD/SG duties applied by Kenya be applicable only to imports of the 
investigated product into Kenya or imports into the entire EAC?  
Reply : 
For Trade Remedies application in the East Africa Community, the Customs Union Protocol create s 
a system for trade remedies investigations under a Committee for Trade Remedies (Article 24 of the 
protocol). This Committee is envisaged to be constituted of experts from each national competent 
authority of EAC Partner States or where such Authorities do not exist be competent experts in 
matters of Trade Remedies. The Committee will deliberate on the findings of their Competent 
National Authorities or Trade Matters brought before it and take appropriate action. This Committee 
has not been established si nce EAC Partner States are at different stages of developing their Legal 
and Institutional frameworks for Trade Remedies. Until the regional body is functional, The Kenya 
Trade Remedies Agency will undertake Trade Remedies investigations on behalf of 
impor ters/exporters within Kenya only and not in the other EAC Partner States.  
Question 2  
Part II, Article 5 states that the Agency will conduct trade remedy investigations and 
advise the Cabinet Secretary on the results of these investigations.  The role of the  Cabinet 
Secretary is further explained in Part IV, Article 23, as well as Article 21 of the Second 
Schedule.  
• Please provide additional clarification regarding the process by which the 
Agency 's recommendation is passed to the Cabinet Secretary.  
Reply : 
In Kenya, Official Communication to the Cabinet Secretary is done in writing as per established 
Government Protocols. The Agency 's recommendation will therefore be passed to the Cabinet 
Secretary through this established mechanism or protocol.  
• What role does the Cabinet Secretary have in the imposition of trade remedy 
measures?  Specifically, does the Cabinet Secretary have the ability to modify the 
duty recommended by the Agency, or only to approve or reject the 
recommendation from the Agency?  If the Cabi net Secretary may modify the duty, 
explain any limitations on such modifications, such as changing the form or 
amount of duty.  
Reply : 
It is the role or duty of the Cabinet Secretary to impose or not to impose Trade Remedy Measures. 
Section 5(c) of the Act provides that the Agency shall investigate allegations of dumping, subsidies 
and safeguards and advise the Cabinet Secretary on the results and recommendations of the 
investigations. Section 36 of the Act provides that the Cabinet Secretary may vary or  set aside a 
determination, recommendation or decision either on his/her own volition or upon an application by 
a person affected by the determination, recommendation or decision. The Cabinet may modify duty 
subject to limitations provided by law.  The law limits the grounds on which modifications can be 
made to either where there is an ambiguity, obvious error or omission, or where the determination, 
recommendation or decision was made by a common mistake and it affects all the relevant parties. 
The Cabinet  Secretary therefore shall not have a blanket discretion in exercise of these powers. But 
in instances where a case has been created for variation, the Cabinet Secretary 's powers to vary are 
not curtailed in any form, so long as they are exercised in furth erance of the law in compliance with 
Kenya 's obligations under the Agreements.  
• What factors does the Cabinet Secretary take into consideration in determining 
whether to impose a trade remedy measure or modify the amount?  G/ADP/Q1/KEN/5 • G/SCM/Q1/KEN/5 • G/SG/Q1/KEN/4  
 
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  Reply:  
In determining whether to im pose a trade remedy measure or modify the amount, the Cabinet 
Secretary has to take into consideration the facts established by the Agency investigations, other 
alternative remedies available and National Economic Interests.  
Question 3  
Will interested part ies need to register with the Agency to participate in a trade remedy 
investigation and to gain access to case files?  If so, what are the registration 
requirements?  
Reply : 
The procedure for participation of interested parties shall be governed by further r ules and 
regulations which are yet to be adopted and published under the Act. Such rules shall provide for 
the registration procedures by such interested parties, their right to access case files and limitations 
to such access including protection of confi dential information. In the development of the regulations 
the Agency intends to borrow and adopt the best practices from already existing Institutions.  
Question 4  
Will Kenya 's trade remedy case files be accessible by the general public, or will case files 
only be accessible by the interested parties to the proceeding?  How will Kenya 's trade 
remedy case files be maintained (e.g., hard -copy files, electronic files)?  Please describe 
the process by which interested parties will be able to access the case file to review 
submissions made by other parties or documents put on the case file by the Agency?  Will 
the case file ever be closed to further review or will it be accessible even after the case 
has been closed?  
Reply : 
Subject to confidentiality regulation s, the proceedings by the Agency shall be made public. Rule 14 
of the Anti -Dumping and countervailing regulations for instance provides that any hearings 
conducted by the Agency shall be made public, taking care to protect confidential information. The 
files at the Agency will be maintained both in hard and electronic forms in a registry in accordance 
with Kenya Government regulations and guidelines on management of records and Information. All 
interested parties shall have access to the files and to the pr oceedings, except as may be protected 
by the confidentiality rule.  
 Parties interested to access a case file for review have to make a request in writing to the Agency 
and it will be considered on its own merit and on a case by case basis in accordance wit h Kenya 's 
regulations governing access to information.  
A Case file will normally be closed after investigation. However further review may be undertaken 
upon application by an interested party who provide additional information that was not available 
before the closure or is a subject of judicial review by an appropriate court of law in Kenya. This will 
also be guided by other best practices that will be adopted by the Agency.  
Question 5  
In Article 10 of the Second Schedule, Kenya states that the Agency wil l notify the 
government of an exporting country of the initiation of an investigation.  Will the 
Government of Kenya also notify the government of an exporting country of the existence 
of a properly documented petition/application prior to initiation, as pr ovided for in Article 
5.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 (Antidumping Agreement)?  G/ADP/Q1/KEN/5 • G/SCM/Q1/KEN/5 • G/SG/Q1/KEN/4  
 
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  Reply : 
Rule of the second schedule fulfils the obligations of Kenya under Article 5.5 of the Agreement on  
Implementation of Article VI of the GATT 1994. Not every petition received by the Agency shall be 
notified to the government of the exporting country. The Agency shall carry out its background check 
and verification as provided for in the law before makin g a decision to initiate an investigation. In 
line with Article 5.5, it is only those petitions on which the Agency has made a decision to initiate 
investigations that will be notified to the governments of the exporting country.  
Question 6  
In various art icles throughout the Kenya Trade Remedies Act (e.g., Part IV, 
Articles  29 and 5) Kenya states that decisions of the Agency may be appealed to the 
"High  Court. " 
• Please describe in further detail Kenya 's judicial system, the High Court, and role 
the High  Court plays in trade remedy proceedings.  
Article 35, Part IV, indicates that persons may appeal to "the High Court within thirty days 
of the determination, recommendation or decision being made for a review. " Does the 30 -
day period begin upon publication in the Kenya Gazette or at an earlier date?  For 
applications under Article 36, Part  IV to the Agency or Cabinet Secretary, is there a 
timeframe within which appeals need to be lodged?  Also, under Article 36, Part IV, what 
is the difference betw een an "obvious error " and a "common mistake ", and who are the 
"relevant parties " who must be affected by a common mistake?  
Reply : 
The courts under the Constitution of Kenya operate at two levels, namely; Superior and Subordinate 
courts. (See Annex 1 attac hed on the Hierarchy).  
1. Superior Courts:  
a. Supreme Court,  
b. Court of Appeal,  
c. High Court,  
d. An Employment and Labor Relations Court and;  
e. A court to hear matters concerning the Environment, and the use of, occupation of and 
title to land.  
2. Subordinate Courts:  
a. Magist rates' Courts  
b. Kadhis Courts  
c. Court Martial, and  
d. Any other court or local Tribunal established by an Act of Parliament  
The High Court has jurisdiction to hear all criminal and civil cases as well as appeals from the lower 
courts. The High Court comprises a maximum of  150 judges  and has original jurisdiction in all 
criminal and civil matters. The High Court is a premier court in interpreting the Constitution, hears 
appeals from subordinate courts and tribunals and supervises all administrative bod ies (judicial 
review).  
High Court divisions include Family, Commercial and Admiralty, Constitutional and Judicial Review, 
Criminal, Industrial and Environmental and Land Court. There are at least 20 High Court stations 
countrywide. The Constitution has als o established the Industrial Court and the Land and 
Environment Court at the same level as the High Court.  Industrial Court  deals with labour and 
employment matters while the  Land and Environment Court  deals with land and environment 
matters and appeals fr om all tribunals dealing in land and environment matters.  
Section 35 of the Act provides that an appeal to the High Court shall be made within 30 days from 
the date of the determination, recommendation or decision being made for review. Read together 
with the Interpretations and General Provisions Act, Chapter 2 of the Laws of Kenya, a decision is G/ADP/Q1/KEN/5 • G/SCM/Q1/KEN/5 • G/SG/Q1/KEN/4  
 
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  deemed to be made the day it is made public. For purposes of the Kenya Trade Remedies Act, this 
shall be done through gazettement. For purposes of final or prelim inary measures, time shall be 
considered to run from the date of gazettement. It must however be noted that the Act gives a party 
the right to move to the High Court to appeal against any decision, and thus for those decisions that 
do not require gazetteme nt, time shall be deemed to run from the date such decisions are made. 
For applications under Article 36, the procedure and the timeframes shall be covered under rules 
and regulations which are yet to be adopted and published by the Board of the Agency.  
The understanding of "obvious error " under section 36 of the Act is "an error apparent on the face 
of the record " of the Agency such as mathematical errors. A common mistake may not be apparent 
on the face of the record but a mistake that affects all the re levant parties. The relevant parties in 
this case refer to the Complainant(s), the Respondents and all the Interested Parties.  
Question 7  
In Part IV, Articles 27 to 29, Kenya describes how it will handle confidential information 
in its trade remedy proceed ings.  Please provide further information regarding how the 
Government of Kenya will ensure the confidentiality of information provided by parties 
involved in its trade remedy proceedings.  For example, will there be penalties if 
confidential data is acciden tly or internationally disclosed?  Will Kenya require that parties 
file public versions of confidential documents?  How will Kenya ensure that the public 
versions of case documents provide sufficient detail to be meaningful?  
Reply : 
The law explicitly requires the Agency to take measures to protect both the confidential information 
and the person who gives it. Such measures shall be spelt out in the rules and regulations on 
handling of confidential information yet to be adopted by the Agency Board.  
Section 38 of the Act makes it a criminal offence to disclose any confidential information, punishable 
by a fine of up to Kshs. 5, 000,000.00 or 5 years imprisonment or both.  
Yes. Section 27 of the Act provides that a party required to provide infor mation to the Agency has a 
right to claim confidentiality of the whole or part of the information given. The Act further provides 
that such a party must give a non -confidential version of the confidential information given to the 
Agency. Once this is done,  the Agency under section 28 independently verifies the extent to which 
the confidentiality protection should be extended to the information given. This exercise is meant to 
ensure that the confidentiality rule is not used to unnecessary hinder access by o ther parties to the 
information or to hinder the work of the Agency. It is also meant to ensure sufficiency of the details 
of the information so as to be meaningful and useful.  
Question 8  
In Part IV, Article 37, Kenya states that in any proceedings conduct ed under the Kenya 
Trade Remedies Act (other than criminal proceedings) the standard of proof is on 
"a balance of probabilities. " Please describe this standard of proof in further detail . 
Reply : 
The Act provides than in any proceedings under it, other than  criminal proceedings, the standard of 
proof is on a balance of probabilities. Built into the preponderance of probability standard, balance 
of probability is a generous degree of flexibility in respect of the seriousness of the allegation. 
Although the re sult is much the same, this does not mean that where a serious allegation is in issue 
the standard of proof required is higher. It means only that the inherent probability or improbability 
of an event is itself a matter to be taken into account when weighi ng the probabilities and deciding 
whether, on balance, the event or set of circumstances occurred or obtains. The more improbable 
the event, the stronger must be the evidence that it did occur before, on the balance of probability, 
its occurrence will be e stablished. If the evidence is such that the Agency can say "we think it more 
probable than not " the burden is discharged, but if the probabilities are equal it is not.  G/ADP/Q1/KEN/5 • G/SCM/Q1/KEN/5 • G/SG/Q1/KEN/4  
 
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  Question 9  
In Article 11, paragraph 1(b) of the Second Schedule, Kenya states that the Agency may 
terminate an investigation if it determines that the margin of dumping is de minimis . 
• Does this finding apply to the preliminary determination or only to a final 
determination?  In other words, if the dumping margin is de minimis at the time 
of the preliminary determination, will Kenya terminate the investigation at that 
time or continue the investigation?  
Reply : 
Section 11(1) of the Act is explicit that where the Agency determines that either dumping margin or 
injury is de minimis , it shall term inate the investigations. This shall be case whether that 
determination is made during preliminary or substantive stage of investigations. In keeping with her 
obligations under the WTO Anti -Dumping Agreement, Kenya shall terminate any investigations, 
including at the preliminary stage, where a de minimis  determination has been made.  
• What if the preliminary injury determination is negative?  Will the case be 
terminated, or will it continue until the final determination ? 
Reply : 
Where preliminary injury determi nation is negative, the investigation shall as well be terminated.  
Question 10  
In Article 17, paragraph 4 of the Second Schedule, Kenya states that provisional measures 
shall be applied for a period not exceeding 6 months and, if requested by exporters, th e 
period can be extended to nine months.  Article 7.4 of the Antidumping Agreement states 
that provisional measures can be applied in lengths ranging from six to nine months only 
in circumstances where a duty lower than the dumping margin that is sufficient  enough 
to remove injury (i.e., application of a lesser duty).  Since Kenya 's regulations state that 
provisional measures may be applied for a period up to 9 months, does this mean that 
Kenya intends to examine whether the application of lesser duty is appropriate in all of 
its AD/CVD investigations?  Or will Kenya only examine whe ther lesser duty is appropriate 
upon request?  
Reply : 
Rule 17 (4) of the Antidumping and Countervailing Regulations provides that provisional measures 
shall be applied for a period not exceeding six months and 17(5) thereof provides that such period 
may be extended to a period not exceeding 9 months upon request of exporters representing a 
significant percentage of the trade of the investigated product. The implication of this provision is 
that extension of provisional measures shall be done only on applicat ion by exporters and shall be 
granted only in instances where application of a lesser duty is appropriate in line with Article 7.4 of 
the Anti -Dumping Agreement. The examination of whether lesser duty is appropriate shall therefore 
be done only upon reques t for extension.  
  G/ADP/Q1/KEN/5 • G/SCM/Q1/KEN/5 • G/SG/Q1/KEN/4  
 
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  ANNEX 1: COURT SYSTE M IN KENYA  
 
 
__________  
Tribunal Courts  
Subordinate Courts, Magistrates Courts, 
Kadhis Court and Courts Martial  
Supreme Court  
Court of Appeal  
High court  
Environment and 
Land Court  
Employment and 
Labour Relations Court