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The Estate Agents (Disciplinary Proceedings) (Procedure) Rules

Legal Notice 35 of 1987

This is the latest version of this Legal Notice.
The Estate Agents (Disciplinary Proceedings) (Procedure) Rules
Citation
Legal Notice 35 of 1987
Primary work
Estate Agents Act
Date
31 December 2022
Language
English
Type
Legal Notice
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LAWS OF KENYA

ESTATE AGENTS ACT

THE ESTATE AGENTS (DISCIPLINARY PROCEEDINGS) (PROCEDURE) RULES

LEGAL NOTICE 35 OF 1987

  • Published in Kenya Gazette Vol. LXXXIX—No. 6 on 6 February 1987
  • Commenced on 6 February 1987
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

Part I – PRELIMINARY

1. Citation

These Rules may be cited as the Estate Agents (Disciplinary Proceedings)(Procedure) Rules.

2. Interpretation

In these Rules, unless the context otherwise requires—"complaint" means a case where it is alleged that a practising estate agent has been convicted of an offence under the Act or under the Penal Code (Cap. 63);"charge" means a charge or charges to be specified in a notice of inquiry;"complainant" means a person who makes a complaint to the Board;"Board’s advocate" means an advocate appointed by the Board to assist in conducting a inquiry under these Rules;"professional misconduct" means serious misconduct judged by the statement published by the Board pursuant to section 21(1) of the Act and all rules, which govern the practice of estate agency;"inquiry" means a disciplinary inquiry into the conduct of an estate agent held by the Board sitting as a tribunal;"notice of inquiry" means a written and signed notice from the Board which is sent to an estate agent specifying, in the form of a charge of charges, matters upon which the inquiry is to be held, and stating the date, time and place where the inquiry is to be held.

Part II – PROCEEDINGS RELATING TO CONVICTION AND PROFESSIONAL MISCONDUCT

3. Preliminary inquiry committee

(1)There is hereby established a committee to be known as the Preliminary Inquiry Committee which shall consist of five members elected from the members of the Board.
(2)The chairperson of the Board shall also be the chairperson of the Preliminary Inquiry Committee and shall convene the meeting of the Committee as and when necessary.

4. Functions of the preliminary inquiry committee

(1)The functions of the Preliminary Inquiry Committee shall be to receive and review complaints against an estate agent and to determine and report to the Board whether an inquiry should be held pursuant to sections 18(2) and 23(1) of the Act in respect of the estate agent.
(2)Subject to paragraph (1), the Preliminary Inquiry Committee after considering the complaint and making such inquires with respect thereto as it may think fit, shall—
(a)if of the opinion that the complaint does not warrant reference to the Board for inquiry, reject the complaint and so inform the Board;
(b)if of the opinion that the complaint does warrant reference to the Board, cause it to be referred to the Board, together with its findings and recommendations.
(3)For the purposes of enabling the Preliminary Inquiry Committee to carry out its functions under these Rules, the committee may correspond with persons, including the estate agents to whom the complaint relates, as it thinks fit and may peruse or inspect all documents relating to the complaint.

5. Submission of complaints, etc.

(1)Whenever a complaint or information is received by the chairperson from a body or person and it appears to him that—
(a)an estate agent has been convicted of an offence under this Act or under the Penal Code (Cap. 63); or
(b)that a question arises whether the conduct of an estate agent constitutes serious professional misconduct, the chairperson shall submit the matter to the Preliminary Inquiry Committee.
(2)When the Preliminary Inquiry Committee refers the complaint to the Board under rule 4(2)(b), the chairperson shall send to the estate agent to whom the complaint relates a notice of inquiry which shall—
(a)be in Form IV in the First Schedule to the Estate Agents (Forms and Fees) Rules, 1986 (L.N. 290/1986) and shall, unless the Board otherwise directs, require the party to whom it is addressed to furnish the chairperson and every other party a notice of all the documents which he intends to rely on at the hearing;
(b)set out, in general terms, the charge or charges of professional misconduct made against the estate agent; and
(c)specify the date and time and the place at which the inquiry is proposed to be held.
(3)The notice of inquiry shall be sent to the estate agent by registered post addressed to his last known address as notified to the registrar or by any other means approved by the Board.
(4)In any case where there is a complaint, a copy of the notice of inquiry shall be sent to him.

6. Procedure in cases relating to conviction

(1)In case relating to condition, where the estate agent appears, the following order of proceedings shall be observed as respects proof of convictions alleged in the charge or charges—
(a)the complainant, or if a complainant does not appear or there is no complainant, the Board’s advocate shall adduce evidence of the conviction and produce before the Board a certified copy of the court proceedings which resulted in the conviction of the estate agent;
(b)if, as regards a conviction, no evidence is adduced, the chairperson shall thereupon announce that the conviction has not been approved;
(c)the chairperson shall ask the estate agent whether he admits each previous conviction of which evidence is so adduced;
(d)if the estate agent does not admit all the convictions, he may, if he intends to adduce other oral evidence as respects any conviction which he does not admit either in person or by his advocate, open his case;
(e)the estate agent or his advocate, as the case may be, may adduce evidence in respect of any conviction which he does not admit;
(f)at the close of the evidence for the estate agent, the complainant or the Board’s advocate, as the case may be, may with the leave of the Board, adduce evidence to rebut any evidence adduced by the estate agent;
(g)The estate agent or his advocate may then address the Board and close his case.
(2)Where the estate agent does not appear and the Board has decided to proceed with the inquiry, subparagraphs (a) and (b) of paragraph (1) shall apply but the remainder of that paragraph shall not apply.
(3)On the conclusion of the proceedings under this rule the Board shall consider every conviction alleged in the charge or charges, other than a conviction which has been admitted by the estate agent, and shall determine whether it has been proved and the chairperson shall determine whether it has been proved and the chairperson shall then announce its determination in such terms as the board may approve.

7. Procedure in cases relating to conduct

(1)In all cases relating to conduct where the estate agent appears the following order of proceedings shall apply—
(a)it the complainant appears, he shall open the case against the estate agent or where the complainant does not appear or there is no complainant, the Board’s advocate shall present all the facts on which the complainant or information is based;
(b)the complainant or the Board’s advocate, as the case may be, may address the Board and adduce evidence of the facts alleged in the charge or charges;
(c)If as respects any change no evidence is adduced, the Board shall announce a finding that the estate agent is not guilty of infamous or disgraceful conduct in a professional respect as alleged in the charge or charges;
(d)at the close of the case against him the estate agent or his advocate may make either one or both of the following submissions as respects any charge which remain outstanding namely—
(i)that no sufficient evidence has been adduced upon which the Board could find that the facts alleged have been proved.
(ii)that the facts of which evidence has been adduced are insufficient to support a finding of infamous or disgraceful conduct in a professional respect;
and where any such submission is made, the complainant or the Board’s advocate, as the case may be, may answer the submission and the estate agent or his advocate may reply thereto;
(e)if a submission is made under paragraph (d), the Board shall consider and determine whether the submission should be upheld and if the Board determines to uphold such a submission as regards any charge, it shall record, and the chairperson shall announce, that the estate agent is not guilty of infamous or disgraceful conduct in a professional respect in respect of the matters to which that charge relates;
(f)the estate agent may then, if he intends to adduce oral evidence in addition to his own evidence, open his case upon any charge which remains outstanding;
(g)at the close of the evidence for the estate agent the complaint or the Board’s advocate, as the case may be, may with leave of the Board, adduce evidence to rebut any evidence adduced by the estate agent;
(h)the complainant, or the Board’s advocate, as the case may be, may then address the Board and close his case.
(2)The estate agent or his advocate may then address the Board and close his case.
(3)Where in a case relating to conduct the estate agent does not appear the Board decides to proceed with the inquiry only subparagraphs (a), (b) and (c) of paragraph (1) shall apply.
(4)on conclusion of the proceedings under paragraph (1) the Board shall consider and determine, as respects each charge which remains outstanding which, if any, of the facts alleged in the charge has been proved to their satisfaction.
(5)if under paragraph (3) the Board decides, as regards any charge, either that none of the facts alleged in the charge have been proved would be insufficient to support a finding of misconduct in a professional respect, the Board shall record a finding that the estate agent as the case may be, is not guilty of the misconduct alleged in the charge or charges.
(6)The chairperson shall announce determination or the finding of the Board after the procedure prescribed under this rule has been complied with.

8. Procedure where an estate agent admits the charge

(1)Where in case relating to conduct or conviction the estate agent admit at the opening of the inquiry all the facts alleged in any charge or charges against him, the chairperson shall thereupon announce that the facts alleged in such charge or charges have been proved.
(2)the complainant or the Board’s advocate, as the case may be, shall address the Board and may adduce evidence as to the circumstance leadings up to the charge or charges and the character and previous history of the estate agent.
(3)The Board shall consider then invite the estate agent or his advocate to address it by way of mitigation.
(4)The Board shall consider and determine the charge or charges and announce their determination or finding.

9. Procedure in cases relating both to conviction and to conduct

Where the estate agent is alleged to have been convicted of any offence under this Act or the Penal Code (Cap. 63) and also to have been guilty of misconduct in a professional respect, the Board shall first deal with the charge or charges relating to conviction before dealing with charge or charges relating to conduct; and in both cases the provisions or rules 6 and 7 shall apply respectively.

10. Joint inquiries, etc.

(1)Nothing in these Rules shall be construed as preventing an inquiry being held jointly into charges against two or more estate agents.
(2)where a joint inquiry is held, the provisions of these Rules shall apply subject to the necessary adaptations and any directions which may be given by the Board.

Part III – PROCEEDINGS RELATING TO APPLICATIONS FOR RESTORATION

11. Application for restoration

(1)An application for restoration of the name of estate agent on the register or the restoration of a licence after removal or cancellation pursuant to section 16 and 23 of the Act shall be in Form VI set out in the First Schedule to the Estate Agents (Forms and Fees) Rules (sub. leg).
(2)All applications for restoration of the name on the register shall be accompanied by a certificate of identity and good character in Form V set out in the Schedule to the Estate Agents (Forms and Fees) Rules (sub. leg) and signed by an estate of at least ten years standing.
(3)The Estate agent making an application under paragraph (1) shall give the names of three referees, two of whom shall be estate agents of at least ten years experience and of good repute and social statues, to whom the Board can send a request for information about the character, habits and conduct of the applicant during the period of suspension.
(4)At the hearing of the application the following procedure shall be followed—
(a)the registrar shall state to the Board the circumstances in which the applicant’s name was removed or erased from the register and shall adduce evidence as to the conduct of the estate agent since that time;
(b)the chairperson shall then invite the applicant to address the Board if he so wishes, and adduce evidence as to his conduct since his name was erased from the register;
(c)the Board may, if it thinks fit, receive oral or written observation on the applicant from any body or person whose complaint resulted in the applicant’s name being erased from the register.
(5)At the close of the proceedings under this rule the Board shall record and the chairperson shall pronounce the finding or determination of the Board.
(6)Subject to the provision of this rule, the proceedings of the Board in connexion with applications for restoration of the name of an estate agent on the register, shall be such as the Board may determine.

12. Adjournment or proceedings

The Board may at any state during an inquiry under these Rules adjourn its proceedings as it thinks fit.

13. Proceedings be in camera

The proceedings of the Board shall be held in camera.

14. Summons at proceedings

(1)The Board may issue a summons, in Form I set out in the Schedule to any person to attend as a witness or to produce any documents.
(2)Any person who files when summoned by the Board to attend as a witness or to produce any books or documents which he is required to produce shall be guilty of an offence and liable to a fine of two thousand shillings or to imprisonment for one month or to both such fine and imprisonment.

15. Notes taken at proceedings

Any party to the proceedings shall, on application, be furnished with a transcript of the shorthand notes or a certified copy of the proceedings or determination or findings of the Board on the payment of a fee for every page of the shorthand notes or certified proceedings or determination or finding of the Board.

16. Venue of meetings

Meeting of the Board for purposes of an inquiry under these Rules, except in so far as the chairperson may otherwise direct, shall be held at the offices of the Board and may be held as regularly as circumstances require.

17. Service of documents

The service of a summons or documents shall be by post or by any means approved by the Board as being the most convenient in the circumstances.

18. Evidence

(1)For the purpose of these Rules, the Board may receive oral, documentary or other evidence of any fact or matter which appears to it be relevant to the inquiry into any matter before it.
(2)The Board may, if satisfied that the interests of justice will not be prejudiced, admit in evidence without strict proof, copies of documents which are themselves admissible, maps, plans, recorded tapes, photographs, certificates of conviction and sentence, certificates of birth and marriage and death, the records including records of the Lands and Settlement and other Government Ministries, records of estate agents and any other Government Ministries, records of estate agents and any other relevant sources, the notes and minutes of proceedings before the Board and before other tribunals and courts, and the board may take note without strict proof thereof of the professional qualifications, the address and identity of the estate agent.

SCHEDULE

WITNESS SUMMONS

Form I  (r. 14)
ESTATE AGENTS ACT
(Cap. 533)
To: .................................................................................................................In pursuance of rule 14(1) of the Estate Agents (Disciplinary Proceedings) (Procedure) Rules you are hereby commanded to attend in person as a witness in an inquiry to be held before the Estate Agents Registration Board Mr./Mrs./Miss ........................... at ........................ on .........................and to remain in attendance until released by the Board. Under the provisions of rule 14(2) of the Estate Agents (Disciplinary Proceedings) (Procedure) Rules, any person who fails when summoned or to produce any books, documents or other exhibits, shall be guilty of an offence and shall be liable to a fine of KSh. 2,000 or to imprisonment for one month or to both such fine and imprisonment.Date ................................., 20 ............
   ..........................................
   Registrar of the Board
Summons Received on ...................................By .................................................Signature of Witness ........................................Served by ...................................................Place ......................................................
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
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History of this document

31 December 2022 this version
06 February 1987
Published in Kenya Gazette 6
Commenced

Cited documents 1

Act 1
1. Penal Code 699 citations

Documents citing this one 0