Investmentand Financial Analysits Act 13of 2015 - as Plain Text by MWakili

ISSUE.

tog SPECIAL Kenya Gazette Supplement No.

150 (Acts No.

13) ^$s" ^drt&$oa*'1tr r'' REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2015 NAIROBI, 8th September, 2015 CONTENT Act- PAGE The Investment and Financial Analysts Act, 2015.:.15 i PRINTED AND PUBUSHED BY TIIE GOVERNMENT PRINTER, NAIROBI 151 THE INVESTMENT AND FINANCIAL ANALYSTS ACT No.

13 of 2015 Date of Assent: I lth August, 2015 Date of Commencement: 8th December,2015 ARRANGEMENT OF SECTIONS Section PART I-PRELIMINARY 1-Short title and commencement.

2-Interpretation.

PART II_ESTABLISHMENT OF THE INSTITUTE 3-Establishment of the Institute.

4-Membership of the Institute.

5-Funds of the Institute.

6-Honorary Fellows.

7 - Chairpers'on',bf the Institute.

8 ' 8f tne Institute \s tir.:ll, -Funitions 9-The Cqpngit.i,, 10 - Comrrhittees bf the Council.

11-Memlbership of the Council.

l2-secretary to the Council.

I3 - Registration Committee.

PART M-REGISTRATION AI\D PRACTICE I4 - Application for registration.

15-Holders of authority to practice.

I6 - Qualifications for registration.

I7 - Disqualification from registration.

18-Register.

19 - Cancellation of registration.

20 -Authority to practice.

21 -Definition of practice.

152 Investment and Financial Analysts ?At' No.13 22 - Application for practising certificate.

23 - Issuance of practising certificate.

24-Issue of ,annual license.

25-Property of the Institute.

PART IV-DISCIPLINARY PB.OVISIONS 26 - Professional misconduct.

27 - Disciplinary Committee.

28 -Inqu@ by the Disciplina,ry Cornrnimee.

29 - Recomrnendations after inquiry.

30-Appeal.

3l-Part to apply to previous holders of an authority to practioe.

PART Y.FINANCIAL PROVISIONS 32-Funds of th lnstitute.

33-Financial year.

34-Annual estimates.

PART VI-MtrSCELLANEOUS 35-Staff of the Institute and Registration Committee.

36-Offences.

37 -Vrcawy in nnmbcrship.

38 -Appointment of interirn managers.

39-RBgulations.

40 - Transitional provision.

FIRSTSCHEDULE Provisions relating 0o the Institute.

SECOND SCHEDULE Provisions relating to the Council.

THIBD SCHEDULE Provisions relating to the Registration Committee.

FOUBTH SCHDDUTE Provioions relating to the Disciplinary Committee FTFTH'.HBDULE ;:ffi[I-::,T1":" ," Interim Manager.

153 Investment and Financial Analysts 2015 No.13 TIIE INVESTMENT AND FINANCIA,L ANALYSTS ACT,2015 AN ACT of Farliament to provide for the establishment, powers and fimctims of the Institute of Certified Investment and Financial Analysts; to provide for the exarnination and registration of certified investment and financial analysts, and for connected purposes ENACTEDby the Parliament of Kenya, as follows- I.

This Act may be cited as the Investment and Short title and Financial Analysts Act, 2015 and shall come into operation commencement.

upon the expiry of ninety days after its publication.

2.

In this Act, unless the context otherwise Interpretation.

requiros- "annual licence" means an annual licence issued pursuant to section 24; "Cabinet Secretary" meaRs the Cabinet Secretary for the ti.rne being responsible for matters relating to finance; "Capital Markets Authority" means the Authority established under seetion 5 of the Capital Markets Act; "chairperson" means the chairperson of the Institute, and includes a person appointed under paragraph 2 of the First Schedule to act as chairperson; "Council" means the Council of the Institute established under section 9; "Disciplinary Committee" means the Committee established under section 27; "Examinations Board" means the Kenya Accountants and Secretaries National Examinations Board established under section 14 of the Accountants Act,2008; "firm" means a sole proprietorship or partnership br a registered company established by members in practice; "fnstitute" means the Institute of Certified Investment and Financial Analysts established by section 3; "practising certificate" means a practising certificate issued pursuant to section 23; 154 No.13 Investment and Financial Analysts 2015 "Register" means the register kept pursuant to section 18; "Registration Committee" means the Registration Committee established under sectionl3 of this Act; and "securities exchange" means a market, exchange, securities organization or other place at which securities and investments are offered for sale, purchase or exchange, including any clearing, settlement or transfer services connected therewith.

(2) For the purpose of this Act- Object and purpose ofthe Act.

(a) a person is registered if his name is recorded in the register pursuant to section 18 of this Act; (b) a person is not registered if he does not seek registration or if his registration is cancelled and particulars of the cancellatiop ?{e recorded in the register pursuant to section 19 of this Act; and (c) a person is registered if the f4gq q{ Ih" rqtto,fiffigpigf, .,his registration is recorded in, the registpg,$prp,+e11{ ir ,., ,to section 18(1) (d) of this Act.

PART II- ESTABLISHMENT OF THE INSTITUTTD r,,.

'! ,'.8,.

(1) There is established an Institute to be.kirOWn lstabrishmentof as the.Ipsiiiute of Certified hv9stqent,,,*d., thernstrtute' Analys[i.' I ' r rrrrr HipEngfpt : 1I r"''l (?) The Institute shall be a body coqpo,5a(e with perpetual succession and a coilrmon seal, and'siiall, in'its corporate name, be capable of- (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging or disposing of both movable and immovable property; (c) borrowing money; (d) entering into contracts; (e) doing or performing all such other acts necessary for the proper performance of its functions under this Act, which may be lawfully done or performed by a body corporate.

(3) The provisions of the First Schedule shall have effect with respect to the Institute.

155 2015 Investment and Financial Analysts 4.

(1) Each person who is registered under section 16 of this Act as a member of the Institute shall be allowed to place the prefix the term "FA" before the person's name.

(2) The members of the Institute shall be divided the following classes, namely- (a) Fellows, comprising members who become Fellows pursuant to an invitation under subsection (3) each of whom shall be titled "Fellow of the Institute of Ceffied Invesfrnent and Financial Analyst" (designatory letters FCIFA); (b) Full members (comprising those members registered under section 20 but who are not Fellows) each of whom shall be titled "Member of the Institute of Certified Investment and Financial Analyst" (designatory letters CIFA).

(c) Associate members, comprising persons eligible to be registered under section 20 but who do not meet all the requirements prescribed under subsection (1) of that section, each of whom shall be titled "Associate Member of the Institute of Certified Inveshnent and Financial Analyst" (designatory letters ACIFA).

(3) Where the Council considers that a member of the Institute has fulfilled the requirements for admission into Fellowship as the Council may prescribe, the Council may invite such member to become a Fellow of the Institute.

(4) Associate members shall be entitled to such rights of membership as the Cabinet Secretary may, in consultation with the Council, by notice in the Gazette prescribe.

5.

(1) The expenditure of Institute and its bodies Funds of the established under this Act shall be met from the funds Institute.

generated by the Institute and its bodies under this Act.

(2) The members of the Institute as specified in section 4 shall pay such fees and subscriptions as the Council may from time to time prescribe.

6.

(1) Where the Council considers that a Honorary Fellows person, not being a member of the Institute has rendered special services to the Institute or the investment and financial analysts profession, the Council may invite such a person to become an Honorary Fellow of the Institute.

156 Investment and Financial Analysts 2015 No.13 (2) An Honorary Fellow shall not be a member of the Institute.

(3) An Honorary Fellow shall be titled "Honorary Fellow of the Institute of Certified Investment and Financial Analyst" (designatory letters Hon FCIFA).

7.

(1) There shall be a chairperson of the Institute Chairpermn of the who shall be elected in the manner provided for in the First Institute.

Schedule.

(2) A member seeking election as chairperson shall be a person who- (a) has been a member of the Institute for a continuous period of not less than three years; (b) has served on the Council or its committees for at least one year; and (c) has not been disqualified under the provisions of the Second Schedule.

E.

The functions of the Institute shall be to- Functions of the Instituie.

(a) promote standards of professional competence and ethical practice amongst members of the Institute; (b) promote research into the subjects of securities and investments and related matters, and the publication I of books, periodicals, journals and articles in connection therewith; (c) promote the international recognition of the Institute; (d) advise the regulator for the time being responsible for capital markets in respect of licensing investment and financial analysts; (e) advise the Examinations Board on matters relating to examinations standards and policies; I (0 to design and administer an initial ethics and integrity test for the purposes of determining the professional suitability of all its members and to subsequently design and undertake such continuous development programmes for its members.

(g) caffy out any other functions prescribed for it under any of the other provisions of this Act or any other written law.

157 2015 Investment and Financial Analysts No.

13 9.

(1) The Institute shall be governed by a Council rhecouncl' to be known as the Council of the Institute.

(2) Subject to this Act, all acts and things done in the name of or on behalf of the Institute by the Council, or with the authority of the Council shall be deemed to have been done by the Institute.

(3) The Council shall issue standards of professional practice, including securities and investment standards, which shall form the basis of securities and investment practice for members of the Institute in the preparation, verification and analysis of financial statements.

(4) The Council mzr), with the approval of the members, issue by-laws to govern matters affecting the operations 10.

(1) The Council may establish such committees Committee of the as necessary for the performance of the functions of the Council.

Institute and may, subject to the provisions of this Act, delegate powers conferred on it to such committees.

(2) The provisions of the Second Schedule shall have effect with respect to the Council.

11.

The Council shall consist of eleven rnembers as Membership of the follows- Council.

(a) a chairperson elected in accordance with section 7; (b) one member to represent the ministry responsible for matters relating to finance; (c) one member to represent the regulator for the time being responsible for capital markets; (d) one member to represent the Examinations Board; (e) one member appointed by the Council to represent Securities Exchanges, and (0 six members elected in the manner provided in the Second Schedule.

12.

(l) There shall be a Secretary to the Council who Secretary to the shall be appointed by the Council.

Cruncil, (2) The Secretary shall be the chief executive officer of the Institute.

( 158 Investment and Financial Analysts 2015 No.-13 (3) The Secretary to the Council shall hold and vacate the office of Secretary in accordance with the l terms of the instrument of appointment to that office.

(a) In addition to the functions conferred by or under this Act, the Secretary to the Council shall exercise and perform such other functions as the Council may, from time to time, determine.

13.

(1) There is established a committee to bg Registration known as the Registration Committee.

Committee.

, (2) The Regisfiation Committee shall consist of eight members to be appointed by the Council as follows- (a) a chairperson appointed from the Institute; (b) one person to represent the Ministry responsible for for finance; (c) one person nominated by the Examinations Board; (d) one person to represent the securities exchanges; (e) one person nominated by the Capital Markets Authority; (f) two persons nominated by the Council to represent ' the Institute; and (g) one person, not being a member of the Institute, nominated by the Council to represent the users of services provided by securities and investments analysts.

(3)The functions of the Registration Committee shall be to- (a) receive, consider and approve applications for registration as a certified investment and financial analyst; (b) grant practising certificates and annual licenses in accordance with the provisions of this AcU (c) monitor compliance with professional, quality assurance and other standards published by the Council for observance by the members of the Institute; 159 2015 Investment and Financial Analysts No.13 (d) prescribe regulations to govern quality assurance prograrnmes, including actions necessary to rectify deviations from established standards; (e) where appropriate and based on the results of a quality assurance review, recommend to the Council that a member's conduct be referred for inquiry under section 28; (f) advise the Council on matters pertaining to professional and other standards necessary for the achievement of quality assurance; (g) cancel certificates in accordance with section 19.

(4) In the performance of its functions under this section, the Registration Committee may undertake such investigations as it deems appropriate, and may requisition evidence, examine records and documents prepared or held by, or likely to be availed to, the member under investigation.

i' I (5) Where the Registration Committee makes ai recommendation under subsection (3Xe) the Council shall i refer the matter for inquiry under section 28.

II (6) The Disciplinary Committee shall consider as evidence the results of the investigation undertaken by the Registration Committee in an inquiry referred to it under subsection (5).

(7) The Council shall' provide the Registration Committee with such facilities and resources as are necessary to enable it competently discharge its functions.

(8) In the exercise of its functions under this Act, the Registration Committee shall regulate its own procedure and shall not work under the direction of any person or persons.

(9) The Secretary to the Council shall serve as the Secretary to the Registration Committee and may, with the consent of the person presiding at a meeting, take part in the deliberations on any matter arising at the meeting but shall not be entitled to vote on any such matter.

(10) The provisions of the Third Schedule shall have effect with respect to the Registration Committee.

160 Investment and Financial Analysts 2A15 No.13 PART IU-REGISTRATION AND PRACTICB 14.

(1) A person wishing to be registered as an Application for investment and financial analyst shall apply to the registration.

Registration Committee.

(2) An application to be registered as an investment and financial'analyst shall be in the prescribed form and shall be accompanied by the prescribed fee.

(3) Where an application is made by a person in accordance with this section, the Registration Committee shall approve the application if it is satisfied that the person- (a) is of or above the age fixed by the Council pursuant to subsection (4); I (b) is qualified to be registered; and I (c) is not disqualified from being registered, and, if not satisfied shall refuse the application.

(4) The Council shall by notice in the Gazette, fix the age which a person wishing to be registered must have attained.

(5) A person who, in an application to be registered, wilfully makes a false or misleading statement commits an offence and shall be liable on conviction to a fine not exceeding two hundred thousand shillings or to imprisonment for a period not exceeding eighteen months or to both.

15.

(1) Notwithstanding sections 14(1) and (3), the Holders of Registration Committee rns/; on application and payment of authority to practis.

the prescribed fees, register as an investment and financial analyst any person who, prior to the commencement of this Act, is the holder of a valid authority to practise issued in accordance with the provisions of any other Act.

(2) Applications under this section shall be received by the Committee within a period of eighteen months after the commencement of the Act.

16.

(1) Subject to this section, a person is qualified to Qualifications for be registered if the person- registration.

(a) has been awarded by the Examinations Board, a Qertificate or other documentary evidence confirming that he has passed the final certified investment and financial analysts examination; or l6l 2015 Investment and Financial Analysts No.

13 (b) holds a qualification approved before the commencement of this Act and was registered at the time of commencement of the Act under subsection (2); (c) tras satisfied the requirements of Chapter Six of the Constitution.

(2) The Council may, in consultation with the Examinations Board from time to time, by notice in the Gazette, approve qualifications which it considers sufficient to allow a person to be registered, and may, in like manner, withdraw any such approval.

(3) Notwithstanding subsection (l) or (2), the Council may require a person making an application for registration to satisfy the Registration Committee, in such manner as it may direct, that the person has- (a) adequate knowledge of Kenyan laws, including taxation law and law governing financial markets and; (b) adequate experience in investment and financial analysis, and (c) acceptable professional conduct and general character which in the opinion of the Committee make such person a fit and proper person to be registered and unless the person so satisfies the Registration Committee he shall not be treated as being qualified to be registered.

17.

(l) Subject to this section, a person is Disqualification disqualified from being registered- from registration.

(a) if such person is convicted by a court of competent jurisdiction in Kenya or elsewhere of an offence involving fraud or dishonesty; (b)if such person is an undischarged bankrupt; (c)if such person is of unsound mind and has been certified to be so by a medical practitioner; (d)if such person does not meet the requirements of Chapter Six of the Constitution; (e)if such person sits and fails the annual ethics and integrity test administered by the Institute; or t62 Investment and Financial Analysts 2015 No.13 (f) during any period when Disciplinary Committee has determined under section 29 that such person shall not be registered or during any such period as varied by the High Court under section 30(2) of this Act.

(2) A person shall not be treated as disqualified under subsection (1) (a) of this section if the Registration Committee having regard to- (a) the period which has elapsed since the conviction concerned; or (b) the circumstances of the offence, determines that it would be unreasonable to so treat the person.

(3) A person shall not be treated as disqualified under subsection (1) (b) of this section if the Registration Committee is satisfied that the bankruptcy of the person concerned arose as a result of unavoidable losses or misfortunes.

(4) A person shall not be treated as being disqualified under subsection (1) (0 of this section if the High Court allows an appeal under section 30 of this Act.

18.

(1) The Secretary to the Registration Committee Resister' shall cause to be kept a register in which shall be recorded- (a) the name of any person whose application under section 22 of this Act is approved; (b) the fact that a practising certificate is issued to any person or that any such certificate has ceased to be in force under this Act; (c) the particulars of the cancellation of the registration of any person; (d) the fact that the registration of any person is restored under this Act; (e) details of firms engaged in the public practice of a securities and investment analysis, including their proprietors; and (0 such other matters as the Council may determine.

(2) The Secretary to the Registration Committee may cause to be made such alterations in the register as are 163 20ts Investment and Financial Analysts necessary to ensure that the matters recorded therein are accurate.

(3) The register may, at all reasonable hours, be inspected, and copies of all or any pafr of any entry in the register taken- (a) without payment, by- (i) any member of the police force or any public servant, acting in the course of his duty; or (ii) any person authorized by the Secretary to the Council; or (b) on payment of such fee as may be prescribed, by any other person.

(4) The register shall be received in proceedings before any court or tribunal as evidence of the matters recorded therein which are required by or under this Act to be so recorded.

(5) A document purporting to be certified by the Secretary to the Council- (a) to be a true copy of an entry in the register; (b) stating that a person is not, or was not on a date specified in the document, registered; or (c) stating that a person is not, or was not on a date specified in the document, the holder of a practising certificate, shall be received in proceedings before a court or tribunal as primn facie evidence of any such matters contained in the entry or of that fact, as the case may be.

(6) Proceedings on an inquiry under this Act before the Disciplinary Committee shall be deemed to be proceedings before a tribunal for the purposes of this section.

19.

(1) Subject to this section, the Registration cancerrationor Committee ihull the registration of a membe-r- resistration' (a) if "uri""l that registation member be determination the of the cancelled is made under section 29(lxi) of this Act; (b) if any circumstance arises which, if the member were then a person applying for registration, would 164 No.

13 Investment and Financial Analysts 2015 disqualify him under section 24 from being registered; or (c) if it is appropriate under subsection (4) of this section to do so.

(2) The Registration Committee shall not cancel the registration of a member under subsection (1) (b) unless it has afforded to the member an opportunity to show cause why his registration should not be cancelled.

(3) Subsections (2) and (3) of section 23 shall apply in relation to the cancellation of the registration of a member of the Institute under subsection (1) (b) of this section as they apply for the purpose of determining whether or not a person is disqualified from being registered.

(4) The Registration Committee may cancel the registration of a member of the Institute who fails to comply with the requirements of section 5.

(5) When the registration of a member of the Institute is cancelled under subsection (1) (a), the Registration Committee shall restore the registration if, on an appeal made under section 30 (1) the High Court allows the appeal.

(6) The Registration Committee shall upon request restore the registration of a person whose registration is cancelled under subsection (l) (c).

(7) The registration of a member shall be restored by recording in the register particulars of the restoration.

(8) A person shall not be treated as being disqualified under this section if the High Court allows an appeal under section 30(1) of this Act.

(9) A person aggrieved by a determination of the Registration Committee under section 20 (l), section 23 (l) and section 24 (2) may appeal to an arbitrator against such determination within twenty-one days of being notified of the determination.

(10) A person dissatisfied by a decision under subsection (9) may appeal to the High Court, which may affirm the determination of the Registration Committee or allow the appeal.

20.

(l) No person shall practice as a certified Authority to investment and financial analyst unless the person is practice.

165 20ts Investment and Financial Analysts No.13 registered as a certified investment and financial analyst and holds a practising certificate or an annual license from the Registratioq Committee that is in force.

(2) Any person who contravenes ,subsection (1) commits an offence and is liable on conviction to a fine not exceeding five hundred thousand or to imprisonment for a period not exceeding two years or to both.

21.

(l) Subject to this section, a person practices as Dennition or an investmeni and financial analyst for tfie prrp'o.r.

of this practic' Act if, in consideration of remuneration or other benefits received or to be received and whether by himself or in partnership with any other person, such person- (a) engages in the practice of investment and financial analysis or holds himself out to the public as a person entitled to do so; (b) offers to perform or performs services involving investment advice or financial decisions, investment transactions, books, accounts or records; (c) offers to perform or performs services involving the verification or certification of investments and related advice; or (d) engages in any practice, or performs or offers to perform any services, which nray be prescribed.

(2) A salaried ernployee of the Government or of any other person does not practice as an investment and financial analyst by reason only of doing, in his capacity as such employee, any of the acts referred to in subsection (1).

(3) An advocate, a professional secretary, a professional accountant or a person authorised to do so by or under any written law, may only undertake the work of an investment consultant or investment advisor or a financial consultant in the course of practising their profession.

22.

(l) A person wishing to obtain a practising Application for certificate shall apply to the Registration Committee.

practising certificate.

(2) An application for a practising certificate shall be in the prescribed form and shall be accompanied by the prescribed fee.

23.

(l) Where an application is made by a person in ['^li:::t accordance'with section ZT1t1, the Registratioir Cbmmittee ::fiH'l: 166 Investment and Financial Analysts 2015 No.13 shall issue to such person a practising certificate if it is satisfied that the person- (a) is registered;.

(b) has received, from an investment analyst who is the holder of a practising certificate, instruction of such nature and for such period as may be prescribed; and (c) meets such other requirements as may be prescribed, and if not so satisfied, shall refuse the application.

(2) A practising certificate issued under this Act remains in force unless it ceases to be in force under subsection (5), (6) or (7).

(3) Notwithstanding subsection (2), a practising certificate issued to any person shall cease to be in force if that person ceases to be registered.

(4) Where a practising certificate issued to any person ceases to be in force under subsection (5) that practising certificate shall not come into force again if the person is subsequently registered but shall come into force again if the'registration of the person is restored.

(5) Subject to subsection (6), a practising certificate shall cease to be in force during any period when it is suspended pursuant to section 29(lxi) or if that period is varied on appeal under section 30(1) during the period as so varied.

(6) A person may surrender to the Institute, a practising certificate issued to him and, in that event, the certificate shall cease to be in force.

(7) Where a practising certificate ceases to be in force under subsection (3), the person to whom the certificate was issued shall deliver it to the Institute within fourteen days after the date on which he ceases to be registered.

(8) Any person who, without reasonable excuse, contravenes subsection (7) commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings for every month accruing or part thereof.

24.

(l) Where the holder of a practising certificate Issue of annual intends to practice as a firm, whether as a sole practitioner or license- I 167 2015 Investment and Financial Analysts No.13 in a partnership, he shall apply to the Registration Committee for an annual practising llcense in the prescribed form, furnishing the Registration Committee with such I details of the firm as it may require.

.

(2) Where an application is made by a person under I subsection (1), the Registration Committee shall issue him with an annual licence if it is satisfied that the person- I (a) holds a practising certificate; and (b) meets such other requirements as may be prescribed; and, if not so satisfied, shall refuse the application.

(3) An annual licence issued under this Act shall be valid from the date of issue to the thirtieth June of the year of issue and shall be renewed at the end thereof.

25.

A practising certificate or an annual licence hoperty of the issued to any person shall remain the property of the Institute.

t.

Institute.

PART IV-DISCIPLINARY PROYISIONS 26.

(l) A member of the Institute shall be guilty of Professional professional misconduct if such member- misconduct, (a) allows any person to practise in his name as a investment and financial analyst, unless such person is the holder of a practising certificate and is in partnership with or employed by him; (b) enters, for the purpose of or in the course of practising as an investment or financial analyst, into partnership with a person who does not hold a practising certificate, or secures any professional business through the services of such a person or by means not open to an investment analyst; (c) pays or allows or agrees to poy, directly or indirectly, to any person (other than a person who holds a practising certificate, is a retired partner or the legal representative of such a partner), any share, commission or brokerage out of the fees for, or profits ofhis professional services; (d) accepts or agrees to accept any part of the fees of, or profits for, the professional work of an advocate, auctioneer, broker or other agent who is not the holder of a practising certificate; 168 Investment and Financial Analysts 2015 No.13 (e) solicits clients or professional work or advertises professional attainments or services by use of means which contravene the guidelines published by the Council; (f) discloses information acquired in the course of professional engagement to any person other than a client, without the consent of the client, or otherwise than required by law; (g) certifies or submits in his name or in the name of his firm a report of investment advice, where the examination of such statements and the related records have not been made by him or a partner or an employee in his firm; (h) fails to observe and apply professional, technical, ethical or other standards prescribed by the Council as guidelines for practice by members of the Institute; (i) permits his name or the name of his firm to be used in connection with an estimate of earnings contingent upon future transactions in a manner which may lead to the belief that he vouches for the accuracy of the forecasts; O expresses his opinion on investment statements of any business or any enterprise in which he, his immediate family, his firm or any partner in his firm, has an interest, unless he discloses that interest when expressing the opinion; (k) charges, in respect of any professional employment other than insolvency or receivership, fees which are based on a percentage of profits or which are contingent on results; (l) fails to disclose in an investment advice statement or otherwise a material fact known to him the disclosure of which is necessary to ensure that the investment advice statement is not misleading; (m)fails to report a material misstatement known to him to appear in an investment statement with which he is concerned in a professional capacity; (n) is guilty of gross negligence in the conduct of his professional duties; 169 2015 Investment and Financial Analysts No.13 (o) expresses an opinion on any matter with which he is concerned in a professional capacity without obtaining sufficient information on which to base the opinion; (p) is an employee of an institution whose license is granted under the Capital Markets Act or any applicable law in Kenya and fails to keep the funds of a client in a separate account or fails to use such funds for purposes for which they are intended; (q) includes in any statement, return or form to be submitted to the Council any particular knowing it to be false; or (r) is found to engage in any other fraudulent acts; or (s) fails to do any other act which may b.e prescribed.

(2) Subsection (1)(f) shall not apply in respect of information disclosed to the Institute in fulfillment of the requirements of a quality assurance programme provided for under section 13.

(3) For the purposes of subsection (lxi), the term "immediate family" includes a spouse, child, grandchild, parent, grandparent, brother, sister, uncle, aunt, first cousin or adopted child and the child of his or her brother or sister or of his or her adopted child, and such relations of the half- blood, or such child of such relations of the half-blood, as well as of the whole-blood.

27.

(l) There shall be a committee of the Council to Dirciplinary be known as the Disciplinary Committee.

Committee.

(2) The Disciplinary Committee shall consist of eight members who shall be appointed in accordance with subsection (3).

(3) The members of the Disciplinary Committee shall be appointed by the Council from amongst persons nominated in the following manner- (a) three members of the Institute, of whom one, who meets the minimum qualifications of a full member of the Institute in good standing with at least ten years' experience in the profession, shall be designated as the chairperson, one (identified by agreement of the members of the Board or by lot) 170 Investment and Financial Analysts 2015 No.13 shall cease to hold office at the commencement of the day on which the second annual general meeting of the Institute is to be held, save in the case of any such who earlier ceases to hold office; (b) one nominated by the Council from another profession other than Securities and Investment Analysts; (c) one nominated by the Attorney-General; (d) one nominated by the Institute of Certified Public Secretaries of Kenya; (e) one nominated by the Capital Markets Authority; (0 one nominated by the Cabinet Secretary in charge of the National Treasury.

(4) In making appointments under this section, the Council shall have regard to the knowledge and interest of the persons so appointed in mafters pertaining to securities and investment analysis.

(5) The quorum of a meeting of the Disciplinary Committee shall be four members.

(6) Subject to subsection (7), a member of the Disciplinary Committee shall hold office for three years and shall be eligible for reappointment for one further term.

(7) Where any member of the Disciplinary Committee resigns his office or is for any reason unable to perform the functions of his office, the Council shall require the respective nominating body specified in subsection (3) to nominate a replacement for such member, for appointment in accordance with that subsection.

(8) The Council shall provide the Disciplinary Committee with such facilities and resources as are necessary to enable it competently discharge its functions.

(9) The Disciplinary Committee may, subject to the provisions of this Act, regulate its own procedure.

28.

(l) Where the Council has reason to believe thatffii,vr][f" a member of the Institute may have been guilty ofcommittee.

professional misconduct it shall refer the matter to the Disciplinary Committee which shall inquire into the matter.

17t 2015 Investment and Financial Analysts No.13 (2) The provisions of the Fourth Schedule shall have effect with respect to an inquiry by the Disciplinary Committee pursuant to subsection (1).

29.

(1) On the completion of an inquiry under 1::TT.",11"i.,.

section ZS iirt'o the alleged frofessional miscondrict of a atterrnqurv' member of the Institute, the Disciplinary Committee shall submit to the Council a report of the inquiry which shall include one or more of the following recommendations, namely that- (a) no further action be taken against the member; (b) the member be reprimanded; (c) the member be reprimanded with publication of the reprimand in the Kenya Gazette or in any other suitable media which may'include the newspapers, electronic media and the internet; (d) the member pays such costs to the Institute, not exceeding five hundred thousand shillings, as may be determined; (e) the member undertakes training at his own cost of such nature and duration and at such institutions as may be determined; (f) the member pays to the Institute a fine not exceeding one million shillings; (g) the member discharges his professional obligations under any contractual arrangement subject of the alleged misconduct; (h) any practising certificate held by the rnember be suspended; or (i) the registration of the member be cancelled and that he be not registered for such perio{ (including life) as may be specified.

(2) Where the Disciplinary Committee, in a report makes a recommendation under subsection (1), the Council shall inform the member concerned of the action to be taken against him and effect the recommendation of the Disciplinary Committee.

(3) A member aggrieved by a determination of the Disciplinary Committee under subsection (l) may make an appeal to the Council within sixty days of the communication to him of such determination, providing the grounds upon which the appeal is lodged.

172 Investment and Financial Analysts 2015 No.13 (4) The Council may upon receipt of an appeal under subsection (3) direct the Disciplinary Committee to re-open the inquiry and shall in such direction specify the aspects of the matter it requires the Disciplinary Committee to reconsider.

(5) The Disciplinary Committee shall comply with the direction of the Council under subsection (4) and shall, after concluding the inquiry, submit a report to the Council in accordance with subjection (l).

(6) Any recommendation of the Disciplinary Committee under this section shall not be effected until after the expiry of the period prescribed under subsection (3) for appeals and the subsequent conclusion of the appeal proceedings thereof.

30.

(1) A person aggrieved by a determination of the Disciplinary Committee under section 29(l) may appeal to the High Court against such determination within sixty days of being notified of the determination.

(2) On an appeal the High Court may affirm, with or without variation, of the period for which the person concerned is not to be registered, or the period for which his practising certificate is suspended, confirm the determination of the Disciplinary Committee or allow the appeal.

(3) A determination under section 29 of this Act shall have effect notwithstanding that an appeal is made against the determination, but in the event that the High Court allows the appeal- (a) section 29 of this Act shall have effect in relation to the cancellation of the registration of the member; and (b) the suspension of the practising certificate of the member of the Institute shall cease to have effect.

31.

For the avoidance of doubt it is declared that the Part to apply to provisions of this Part shall apply to any person registered as previous holder of an authority to an investment and financial analyst under the provisions of practise.

section 21(1) of this Act for actions undertaken by such person while practising under a written authority to practise granted prior to the commencement of this Act.

173 2015 Investment and Financial Analysts No.13 PART V -FINANCIAL PROVISIONS 32.The funds of the Institute shall consist of- Funds of the Institute.

(a) such fees, monies or assets as may accrue to or vest in the Institute in the course of the exercise of its powers or the performance of its functions under this Act or under any other written law; (b) such gifts as may be given to the Institute; and (c) all monies from any other source provided for or donated to the Institute.

33.

Unless otherwise provided, the financial year of Financiar vear the Institute shall be the period for twelve months ending on the thirty-first day of December in each year.

34.

(1) At least three months before the Annual estimates.

commencement of each financial year, the Institute shall cause to be prepared estimates of revenue and expenditure for that year.

(2) The annual estimates shall be approved by the Council before the commencement of the financial year to which they relate.

(3) The Council shall cause to be kept all proper books and records of accounts of the income, expenditure and I assets of the Institute.

i (4) Within a period of four months from the end of each financial year, the Council shall submit to its auditors i the accounts of the Institute for audit.

(5) Within six months before the end of the financial i year, the Council shall lay the audited accounts before the annual general meeting of its members together with any I reports made by the auditors.

PART VI_MISCELLANEOUS 35.

(1) The Institute and the Registration Committee Staff of the may each engage and employ such persons as are necessary Institute and the Registration for the discharge of their respective functions under this Act, Committee.

on such terms and conditions as may be specified in the instruments of appointment.

(2) The terms and conditions of employment of staff employed under this section shall be as may be determined by the Institute and the Registration Committee respectively.

174 Investment and Financial Analysts 2015 No.13 (3) For the purposes of subsection (2) "terms and conditions" includes conditions with respect to the duration of employment or with respect to dismissal from employment.

36.

(l) A person who- (a) assumes or uses the title or designatory letters referred to in section 4 (1) and who is not a qualified member of the Institute of Certified Investment and Financial Analysts; or (b) assumes or uses the title or desigrtatory letters referred to in section 4 (2) (a) and who is not a Fellow of the Institute of Certified Investment and Financial Analysts; or (c) assumes or uses the title or designatory letters referred to in section aQ) (b) and who is not a member of the Institute of Certified Investment and Financial Analysts; (d) assumes or uses the title or designatory letters referred to in section aQ) (c) and who is not a member of the Institute of Certified Investment and Financial Analysts; I (e) assumes or uses the title "Honorary Fellow of the l Institute of Certified Investment and Financial Analysts" and who is not such Honorary Fellow; or (0 otherwise falsely assumes or uses any title or designatory letters prescribed by the Cabinet Secretary, commits an offence.

(2) A corporate body (whether incorporated in Kenya or elsewhere) which falsely uses any 'of the titles or designatory letters referred to in section aQ) (a), (b) or (c) commits an offence.

(3)Where a firm uses the title or designatory letters referred to in section 4(2) while each of the partners in the firm are entitled to use the title or designatory letters, each of the partners of the firm commits an offence.

(4) A person who commits an offence under this section is liable on conviction to a fine not exceeding five 175 2015 Investment and Financial Analysts No.13 hundred thousand shillings,'and, in the case of a continuing offence, a further fine not exceeding one million shillings for each day on which the offence continues.

37.

The Council may exercise and perform its Vacancy in functions notwithstanding any vacancy among the members membership.

and the validity of any proceedings of the Council shall not be affected by any such vacancy or any defect in the appointment of a member.

38.

(1) Where a member in private practice suffers AppoinEnent of incapacitation, the Council may appoint a person, in this interim managers.

section referred to as an interim manager, to conduct the professional affairs of that member for a duration not exceeding two years in accordance with the provisions of the Fifth Schedule.

(2) The interim manager appointed under subsection (1) shall be the holder of a practising certificate issued in accordance with the provisions of this Act.

(3) The provisions of the Fifth Schedule shall have effect with respect to an interim manager appointed under this section.

39.

The Cabinet Secretary may make regulations Regurations' prescribing anything which is required to be prescribed under the provisions of this Act.

40.

Where, in any written law, any reference is made Transitional (in whatsoever terms), or is implied as referring to an provision.

investment and financial analyst, such reference or implied reference shall be deemed, subject to the provisions of the Capital Marl<ets Act and mutatis mutandis, refer to the holder of a practising certificate, or to the holders of practising certificates, issued pursuant to section 23 of the Act.

t76 Investment and Financial Analysts 2015 No.13 FIRST SCHEDULE (s.3(3)) PROVISIONS RELATING TO THE INSTITUTE 1.

(1) A person shall be elected to the office of Chairpermn of the Chairperson at an annual general meeting of the Institute.

Institute.

(2) Unless he earlier vacates the office, a person elected to the office of chairperson shall hold the office for one term of two years or until another chairperson is elected.

(3) A person who holds the office of chairperson is not eligible for re-election.

(4) A person who holds the office of Chairperson may resign the office by giving written notice to the Council.

2.

(l) On the advice of the Council, the Cabinet Acting Secretary may appoint a person to act as chairperson- chairpermn.

(a) during a vacancy in the office of Chairperson; or (b) during any period when the Chairperson is for any reason unable to exercise and perform, the function of his office.

(2) The Cabinet Secretary may at any time, on the advice of the Council, revoke the appointment of a person to act as Chairperson.

(3) The appointment of a person to act as Chairperson ceases to have effect- (a) if made during a vacancy in the office of Chairperson, when the vacancy ends by the election of a Chairperson; (b) if the person appointed resigns from office by writing under his hand delivered to the Cabinet Secretary; or (c) if the Cabinet Secretary revokes the appointment under subparagraph (2) ofthis paragraph.

3.

(1) Subject to paragraph 4 of this Schedule, an Meetings of the annual general meeting of the Institute shall be held not later Institute.

than six months after the end of each year.

(2) A special general meeting of the Institute- (a) may be held at any time; and (b) be held on a written request made to the Council by giving to every member of the Institute a written notice.

t77 2015 Investment and Financial Analysts No.13 (3) A meeting of the Institute shall be convened by the Council by giving to every member of the Institute a written notice- (a) stating the place and time of the meeting; and (b) indicating the business which it is proposed to transact at the meeting, which shall include, among other matters, the presentation of the following- (i) a report by the Council covering the past year; (ii) financial statements and the auditor's report thereon; (iii) election of the Chairperson and Council members; and (iv) the appointment of the auditor.

(4) Notice of a meeting shall be given not less than fourteen days before the date on which it is to be held to each member of the Institute by posting the notice to the address of the member last known to the Institute, or by handing the notice to the member in person.

(5) The validity of any proceedings of the Institute shall not be affected by any failure to comply with the requirement of subparagraph (2) of this paragraph unless it is proved that the failure to comply in relation to any member was a deliberate failure.

4.

(l) The Chairperson shall preside at all meetings of Chairpersonto the Institute at which Le is present.^ presrde (2) At a meeting of the lnstitute at which the Chairperson is not present, the Vice-Chairperson shall preside.

(3) At a meeting of the Institute at which neither the Chairperson nor the vice-chairperson are present the members of the Institute present shall elect one of their members to preside.

5.

(1) Subject to this paragraph, the quorum at a Quorum' meeting of the Institute shall be fifty percent of the members.

(2) Where a general meeting of the Institute is convened- 178 Investment and Financial Analysts 2015 No.13 (a) otherwise than pursuant to paragraph 2 (b) of this schedule, and a quorum is not present when the meeting proceeds to business, the meeting shall stand adjourned until the same day on the.

following week, at the same time and place, and if a quorum is not present at or within fifteen minutes after that time, the members present shall constitute a quorum; or (b) pursuant to paragraph 4 (b) of this Schedule, and a ' quorum is not present when the meeting proceeds to business the meeting shall be dissolved.

6.

(1) No business shall be transacted at a meeting of the Institute unless- (a) the business is indicated in the notice of the meeting as business which it is proposed to transact; or (b) in the case of business not so indicated, the meeting decides to transact the business and the person presiding at the meeting agrees to the transaction of the business; (2) Minutes of the proceedings at meetings of the Institute shall be kept in such a manner as the Chairperson or in his absence the person presiding at a particular meeting, directs.

7.

(l) The person presiding at a meeting of the Institute Powers of person may- presiding (a) adjourn the meeting from time to tirrre and from place to place, with the consent of the meeting; (b) limit the number of persons permitted to speak irt favour of or against any motion and the time any such person may so speak.

8.

(l) Questions arising at a meeting shall be determined by a majority of the members of the Institute voting on the question.

(2) Voting on any question shall be by a show of hands or such other procedure as may be prescribed in by-laws or regulations published undgr the provisions of this Act.

(3) Where a ballot is held, voting may be either done personally or by written pfoxy.

179 2015 Investment and Financial Analysts No.13 (4) An instrument appointing a proxy shall be deposited with the Secretary to the Council not less than forty-eight hours before the meeting of the Institute at which it is to be used.

(5) A proxy to be used in any ballot at any meeting may be used at the meeting or, if the meeting is adjourned, in any ballot when the meeting is resumed after the adjournment but the holding of a proxy shall not be counted towards the quorum at any stage of any meeting.

(6) The person presiding at a meeting of the Institute has a deliberative vote, and, in the event of an equality of votes, also has a casting vote.

(7) A declaration by the person presiding at a meeting of the Institute that a resolution has or has not been carried and an entry to that effect in the minutes of the meeting is evidence of that fact.

SECOND SCHEDULE (s.10 (2), s.11) PROVISIONS RELATING TO THE COUNCIL 1.

(1) Each of the six members of the Council (one of Membership of the whom shall be the Vice-Chairperson) referred to in section Council.

l1(0 of this Act shall be elected at an annual general meeting of the Institute.

(2) Subject to paragraph 2 of this Schedule, a member of the Council- (a) elected pursuant to subparagraph (1); (b) appointed pursuant to section l1(b), (c), (d) and (e) of this Act; or (c) co-opted pursuant to subparagraph (4), shall hold office for the prescribed period, unless he earlier ceases to hold office.

(3) A member of the Institute shall be disqualified from contesting any position on the Council if within the preceding three years, such member- (a) has been found guilty of an act of professional misconduct under section 26 of the Act, which in the opinion of the Council renders him unfit to hold the office; r80 Investment and Financial Analysts 2015 No.13 (b) has been convicted of an offence and sentenced to imprisonment for a term of six months or more without the option of a fine; (c) has been convicted of an offence involving comrption, dishonesty or abuse of office; or (d) has been adjudged bankrupt or has entered into a composition or scheme of arrangement with his creditors.

(4) Subject to subparagraph (5), where a member of the Council (including a member co-opted pursuant to this subparagraph) ceases to hold office before the expiration of the prescribed period or otherwise than under the provisions of paragraph 2 of this Schedule (where applicable), the Council may co-opt a person to hold that office.

(5) Subparagraph (4) does not apply to the members of the Council appointed pursuant to section 11(b), (c), (d) and (e) of this Act.

(6) In this subparagraph, the "prescribed period" means- (a) in relation to a member referred to in subparagraph (2) (a), the period beginning with his election and ending at the commencement of the day on which the third annual general meeting after his election is to be held; (b) in relation to a member referred to in subparagraph (2) (b), the period of three years next following his appointment; or (c) in relation to a member referred to in subparagraph (2) (c), the peric,d beginning with his being co- opted and ending at the commencement of the day on which the first annual general meeting after his being co-opted is to be held.

2.

Ot the six members of the Council (including the Trmsition in Vice-Chairperson) first elected by the Institute after the membership commencement of this Act- (a) two (identified by agreement of the members of the council or by lot) shall cease to hold office at the cofirmencement of the day on which the second annual general meeting of the Institute is to be held, l8l 2015 Investment and Financial Analysts No.

13 save in the case of any such who earlier ceases to hold office; (b) two (so identified) shall cease to hold office at the commencement of the day on which the third annual general meeting of the Institute is to be held, save in the case of any such member who earlier ceases to hold office; and (c) the remaining two members shall cease to hold office at the commencement of the day on which the fourth annual general meeting of the Institute is to be held, save in the case of any such member who earlier ceases to hold office.

2.

Notwithstanding paragraph 2, the office ofa Vacancy ofoffice member of the Council shall become vacant if such member- (a) resigns the office by writing under his hand delivered- (i) in the case of the members appointed pursuant to section II (b), (c), (d) analbl to the Cabinet Secretary; or (ii) in the case of any other member, to the Council; (b) has the appointment revoked by the Cabinet Secretary in the case of the members appointed pursuant to section 1l (b), (c), and (e); (c) ceases to hold the office in the case of the members appointed pursuant to section ll(b), (c), (d) and (e); (d) is adjudged bankrupt or enters into a composition or scheme of arrangement with his creditors; (e) is absent without the permission of the Council from three or more consecutive ordinary meetings of the Council; (0 is convicted of an offence and sentenced to imprisonment for a term of six month or more without the option of a fine; (g) is found guilty of an act of professional misconduct under section 26 of the Act, which in the opinion of 182 No.

13 Investment and Financial Analysts 2015 the Council renders him unsuitable to continue to hold office; or (h) becomes for any reason, including infirmity of body or mind, incompetent or incapable of performing the functions of his office.

3.

(1) Subject to paragraph 1 (4) of this Schedule, Filing of vacancy where a member of the Council ceases to hold office, another member shall be elected to fill the vacancy at the annual general meeting of the Institute next following, or shall be appointed as provided under section 11 (b), (c) or (d) of this Act, as the case may be.

(2) A member of the Council who ceases to hold office other than under paragraph 3 (b), (c) or (d) is eligible for re- election or re-appointment.

4.

(1) There shall be a Vice-Chairperson of the Council Vice-chairperson who shall be elected by the Council from amongst the of the Council members of the Council elected under section 11(f) of this Act.

(2) The Vice-Chairperson shall hold office for the period of one year immediately following his election to the office or, if he ceases to hold office as a member of the Council before then, until he so ceases to hold office.

(3) Subject to paragraph 2 of the First Schedule of this Act, the Vice-Chairperson may exercise and perform the functions of the Chairperson if the Chairperson is unable to exercise and perform those functions.

6.

The quorum at meetings of the Council and the Proceedings ilrangements relating to meetings of the Council shall be such as the Council may determine.

7.

The person presiding at a meeting of the Council has Casting vote.

a deliberative vote, and, in the event of an equality of votes, also has a casting vote.

8.

Minutes of the proceedings of the Council shall be kept in such manner as the Council directs, and, on the written request of the Cabinet Secretary, shall be made available to him or any person nominated by him.

183 Investment and Financial Analysts 2015 No.13 THIRD SCHEDULE (s.

13(10)) PROVISIONS RELATING TO THE REGISTRATION COMMITTEB 1.

(1) A member of the Registration Committee shall Term of office hold office for a period of three years unless he earlier ceases to hold office.

(2) A member of the Registration Committee may resign the office by writing under his hand to the Council which shall seek the nomination of a replacement for appointment by the Cabinet Secretary.

(3) A member of the Registration Committee who ceases to hold office at the end of the prescribed term is eligible for re-appointment.

2.

(l) The procedure to be iollowed on a quality kocedure for quality assurance assurance review shall subject to this Schedule, be at the review.

discretion of the Registration Committee.

(2) The Registration Committee shall notify the member of an impending quality assurance review at least twenty one days prior to commencement of the review.

9.

(1) Where the results of a quality assurance review Results of quality are considered unsatisfactory, the Registration Committee assurance review.

may require the member or members concerned to undertake necessary corrective actions to comply with professional standards and may prescribe requirements to be observed in this respect.

(2) The requirements of the Registration Committee shall be implemented by the member or members investigated within such time as may be determine.

4.

The Registration Committee shall provide the Report to the Council with a report on all the quality assurance reviews Council the Committee undertakes and where necessary or appropriate, the Council shall take such action as may be recofirmended therein.

5.(1) The Registration Committee shall not without the Disclosure of consent of the member or members under review, disclose infomation to any person other than the Council, any information received in the course of an investigation, unless such disclosure is required by a law for the time being in force in Kenya.

184 No.

L3 lnvestment and Financial Analysts 2015 (2) Any member of the Registration Committee or quality assurance review team who discloses any information acquired in the course of a quality assurance review contrary to the provisions of this Act or applies such information to gain advantage whether financial or otherwise commits an offence and shall be liable to a fine not exceeding fifty thousand shillings on conviction.

6.

The quorum for meetings of the Registration Committee shall be four.

7.

The decision of the Registration Committee shall be voting' that of the majority of the members' present and voting but in the event of equality of votes, the Chairperson shall have a casting vote.

8.

The validity of the proceedings of the Registration Yl'111ry,:l Committee shall not be invalidated 6y ury ,u"uri"y in its proceedmss membership 9.

A record of the proceedings of the Registration Rrcordkeeping' Committee shall be kept in such manner as the Committee directs, and may on a written request be availed to the Council or a party authorized by the Council or the High Court to receive them.

FOURTH SCHEDULE (s.28(2)) PROVISIONS RELATING TO THE DISCIPLINARY COMMITTEB PROCEEDINGS ON INQUIRY 1.

(1) The Council shall cause a statement to be :,t:il:X::t prepared setting out the allegation of professional misconduct to be investigated by the Disciplinary Committee.

(2)The Secretary to the Council shall transmit to each member of the Disciplinary Committee and to the person whose conduct is the subject of investigation a copy of the statement prepared pursuant to subparagraph (1) of this paragraph.

2.

(l) The Secretary to the Council shall give notice of Noticeorinquiry' the first date, time and place fixed for the inquiry to the person whose conduct is the subject of investigation.

(2) Every such notice shall, at least fourteen days, before the first date fixed for the inquiry, be delivered to the person whose conduct is the subject of investigation by 185 2015 Investment and Financial Analysts No.

t3 hand or be sent to him through the post by registered letter addressed to his address last known to the Council.

(3) Where a person whose conduct is the subject of investigation fails to appear either personally or by his advocate at the time and place fixed in the notice served on him, the inquiry may proceed in his absence.

(4) Notice of the adjournment of an inquiry shall be given to the person whose conduct is the subject of investigation in such manner as the Disciplinary Committee determines.

3.

(1) A person whose conduct is the subject of Representation by investigation may appear at the inquiry by an advocate.

adYocate (2) The Institute may appear at the inquiry by an advocate.

4.

(1) For the purpose of the conduct of the inquiry the Powers of Disciplinary Disciplinary Committee has power- Board.

(a) to administer oaths; (b) to surrlmon person to attend and give evidence; (c) to order the production of relevant documents including court judgements; and (d) to recover in whole or in part the costs of the inquiry not exceeding one hundred thousand shillings from any or all the parties involved in the proceedings.

(2) An oath may be administered by any member of the Disciplinary Committee or by the Secretary to the Council.

(3) Notices, orders and summonses of the Disciplinary Committee shall be issued under the hand of the Secretary to the Council.

5.

(1) Subject to this Schedule on the inquiry- Procedre for inquiry.

(a) the procedure to be followed is within the discretion of the Disciplinary Committee; and (b) the Disciplinary Committee is not bound by the rules of evidence.

(2) Unless the Disciplinary Committee otherwise determines, the proceedings on the inquiry shall be held in cilmera.

(3)The Secretary to the Council shall keep or cause to be kept, a record of the proceedings on the inquiry.

186 No.13 Investment and Financial Analysts 2015 (a) The Secretary to the Council may attend meetings of the Disciplinary Committee and may with the consent of the person presiding at the meeting take part in the deliberations on any matter arising at the meeting but he shall not be entitled to vote on any such matter.

5.

(l) The decision of the Disciplinary Committee on Voting' the inquiry is that of the majority of the members present and voting for the purpose of making a decision.

(2) For the purposes of making the decision on the inquiry every member of the Disciplinary Committee has one vote, and, in the event of an equality of votes, the Chairperson of the Disciplinary Committee also has a casting vote.

7.

The validity of proceedings of the inquiry is not Validity of affected by any vacancy among the members of the proceedings.

Disciplinary Committee or any defect in the appointment of a member 8.

(1) A person served with a summons to appear as a witness at the inquiry who, without reasonable excuse fails to attend as required by the surunons, is guilty of an offence.

(2) A person appearing as a witness at the inquiry who, without reasonable excuse- (a) refuses or fails to be sworn; (b) refuses or fails to answer a question that he is required to answer by the Chairperson of the Disciplinary Committee; or (c) refuses or fails to produce a document that he was required to produce by a summons under this Act, served on him, commits an offence.

(3) A person convicted of an offence under this subparagraph is liable on conviction to a fine not exceeding twenty thousand shillings.

9.

(l) A member of the Disciplinary Committee has, in Immunitv' the performance of his duty as a member, the same protection and immunity as a judge.

(2) A person appearing before the Disciplinary Committee at the inquiry on behalf of the person whose conduct is the subject of investigation has the same 187 2015 Investment and Financial Analysts protection and immunity as an advocate has in appearing for a party in proceedings in the High Court.

(3)A person summoned to attend or appearing before the Disciplinary Committee as a witness at the inquiry has the same protection, and is, in addition to the penalties provided in this Schedule, subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court.

10.

Proceedings on the inquiry shall be deemed to be Judicial judicial proceedings for the purposes of Chapter XI of the procecdings.

Penal Code.

FIFTH SCHEDULE (s.

38) PROYISIONS RELATING TO INTERIM MANAGER 1.A member in practice shall be deemed to be Incapacitation of incapacitated when an event occurs that makes it impossible member.

for the member to continue running the practice in accordance with the provisions of this Act or a circumstance arises which makes it not possible for the member to continue discharging the duties expected of him as a professional certified investment and financial analyst.

2.

Every member who holds a practising certificate Nomination of shall at such intervals as the Council may direct nominate a interim manager.

suitably qualified member in good standing to be known as the interim manager, to manage and control the affairs of his practice in the event of incapacity or inability of the member to run the affairs of the practice.

3.

Where a member in practice fails to nominate an Failure to interim manager as required under this Schedule, the nominate.

Council may exercise its powers as conferred in section 38 of the Act.

4.

(1) For the purpose of nominating the interim Obligation of manager, a member in practice or the Council as the case intcrim mmager.

may be shall specify in the instrument of nomination- (a) the general nature of obligations to be assumed by the interim manager, and specifically the role of the interim manager in the disposal of the ptactice and his relationship with any person who may be appointed as estate executor or administrator;.

188 Investment and Financial Analysts 7&ts No.13 (b) ttrc powers of the interim manager covering matters such as staff deployment or other operations of the practice; (o) t!rc rem,trneration of,the interim manager; (d) the period of service of the interim manager; (e) ttre po.wers conferred on the interim manager to sign repm,ts, correspondence, agreements or other docunrcntation in the name of the practice; and (O tk premises from which the operations will contirue to take place if different from the practice' s.

registered office.

(2) An ir,Uerirn, manager shaltr take appropriate steps to safeguard ttre welfare of clients of the practice at the tinee of assurning offrcs- md shutld desist from conduct that seeks,to gain from his appoiutment, otherwise than in the form, of renrrmeration agreed.

(3) An interirn manager shall be responsible for'their own rtkns.

The interfun manager shall exercise due care and ski,Il in the discharge of his duties an-d shall provide adequate professional indemnity insurance during the term of his engager,nent and meet other conditions as may be prescribed.

(4) VIhere appropriate, the interim manager may have his nanle ineluded in the letter head of the practice but not alter the niune of the practice unless this is expressly provided for in the nornination agreement.

(5) Where the nominating member has at the tirne of nominating an interim manager authorized the sale of his practice, the interirn manager shall enter into negotiations with interested parties and shall ensure that the instructions of the norninating member are executed to his best interest.

(6)'FUII details of every agreement involving the appofuffinrent of an.

interim manager shall be submitted to the Council w.ithin twenty one days of its commencement.

An interi.rn manager shall within seven days of assuming office notify the Council of that fact.

(7) lYhere the Council appoints an interim manager, full details of the appointment shall be recorded by the Cor.mcil and the acceptance thereof documented.

2Ol5 Investfient and Financial Analysts No.13 (8) The interim manager shall at intervals of six months, submit a reprt to the person that appointed him and wtrere the appointing mernber is incapacitated or deceased, the interim rnanager shall submit snoh report to the Council.

Tl*e reprt shall contain all such deails as rilay be prescribed by &e Council and any other matters covered within the norniaation agreement.

.