A foreign contractor, including a firm incorporated in Kenya in which 5l% of the shares are held by a non-Kenyan, is prohibited from undertaking construction works whose value is below limits set in the regulations (works classified as NCA-2 to NCA-8 in the regulation). Foreign contractors may only register and undertake works classified as NCA-1 (whose value is superior to the NCA-2 threshold). In such cases, foreign contractors are required to give an undertaking that it will subcontract or enter into a joint venture with a local person or local firm for not less than thirty percent of the value.
"PART III – TRADING AS A CONTRACTOR
15. Requirement for registration.
(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.
[...]
16. Meaning of "Contractor".
(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 supply—
[...]
18. Registration of foreign contractors.
(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 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.
(5) Notwithstanding the provisions of this section and section 16, the Cabinet Secretary, in consultation with the Board, shall make regulations stipulating ownership structures of foreign firms seeking registration under this Act, clearly stating the categories of contracts for which foreign firms may apply and those which shall be strictly reserved for local contractors. [...]" (National Construction Authority Act No. 41 of 2011, as amended)
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"2. lnterpretation
In these Regulations, unless the context otherwise requires— [...]
"foreign contractor" means—
(a) a firm incorporated outside Kenya; or
(b) a firm incorporated in Kenya in which 5l% of the shares are held by a non-Kenyan;
[...]
PART II – REGISTRATION OF CONTRACTORS [...]
9. Restriction
(1) Registration of contractors under NCA-1 as specified in the Schedule category shall be open to both local and foreign contractors.
(2) Any registrations that fall between NCA-2 to NCA-8 as set out in the Schedule of the Regulations shall be restricted to local contractors only. [L.N. 274/2017, r. 3.]
[...]
12. Registration of foreign Contractors
(1) Subject to section 18 of the Act, a foreign person or firm shall be eligible for registration as a contractor on application to the Authority and payment of the prescribed fees.
(2) Where a foreign firm applies under this regulation to undertake construction works or project under category NCA-1 specified in the Schedule, such firm shall demonstrate to the Authority its capacity for such works.
(3) The application under paragraph (1) shall be accompanied by— [...]
(d) an undertaking in writing that the foreign person or firm—
(i) shall subcontract or enter into a joint venture with a local person or local firm for not less than thirty percent of the value of the contract work for which temporary registration is sought;
(ii) shall transfer technical skills not available locally to a local person or firm in such manner as the Authority may determine from time to time;
(e) any other requirement that the Board may determine from time to time.
(4) A registration under this regulation shall—
(a) be valid for the period of the construction works contract or project in question;
(b) where applicable be renewable every calendar year, failure to which the registration shall stand cancelled by the Board.[...]" (National Construction Authority Regulations, Legal Notice No. 74 of 2014, as amended)
National Construction Authority Act No. 41 of 2011, as amended
National Construction Authority Regulations, Legal Notice No. 74 of 2014, as amended
[<a href="http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20118">Act</a>],[<a href="http://www.kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%20118">Reg</a>]