In the year 2016, the Government of Kenya noticed an increase in the use of UAS in the Kenyan territory mainly for filming and pesticide dispersal. It was noted that unregulated use of UAS could be a threat to national security and as an immediate measure, the National Security Advisory Committee imposed a ban on the use of UAS in Kenya. Thereafter, consultations started on how to regulate the use of UAS and the Civil Aviation Act, 2013 (the Act) was amended to criminalise the operation of UAS in Kenya without special authorisation by the Kenya Civil Aviation Authority (KCAA)¹.
In 2017, KCAA developed a policy on remotely piloted aircraft and thereafter formulated the Civil Aviation (Remotely Piloted Aircraft Systems) Regulations, 2017. The Civil Aviation (Remotely Piloted Aircraft Systems) Regulations, 2017 were submitted to Kenya’s National Assembly for approval (as required by law) but the National Assembly annulled the Regulations in 2018 on grounds that:
- The penalties provided in the Civil Aviation (Remotely Piloted Aircraft Systems) Regulations, 2017 were above the penalties permitted by the Act (the parent act). Section 24 (2) of Kenya’s Statutory Instruments Act No. 23 of 2013 provides that a statutory instrument (regulation) shall not be inconsistent with the provisions of the enabling legislation, or of any Act. In case of inconsistency, the statutory instrument shall be void to the extent of the inconsistency.
- The Regulations did not expressly address the issue of privacy and data protection;
- The Regulations did not adequately address the issue of security; and
- The provision on granting of licences in the Regulations needed to be reviewed.
The annulled Civil Aviation (Remotely Piloted Aircraft Systems) Regulations, 2017 will hereinafter be referred to as the “the 2017 Regulations.
The annulment of the 2017 Regulations disappointed various organizations in the aviation industry which (with the 2017 Regulations) had commenced investments in UAS related operations. For example, Astral Aviation, a logistic firm in Kenya, which had applied for a licence to set up a Drones Academy in Kenya (which would have been the second of its kind in Africa) at the time were forced to shelve the plans.
With the promulgation of the 2017 Regulations, the ban on the use of UAS in Kenya was lifted but immediately the Regulations were annulled, the ban was reinstated. This necessitated the KCAA to commence the process of formulating new UAS regulations. A multi sectoral team including representatives from the Kenya Internal Security Department, the Department of Defence and KCAA was formed and tasked with the formulation of new regulations.
¹Section 61F of the Civil Aviation (Amendment) Act, 2016 prohibits any person from allowing an aircraft capable of being flown without a pilot to be flown without a pilot over the territory of Kenya without special authorization by KCAA and in accordance with the terms of such authorization. A person who contravenes the provisions of Section61F commits an offence under the Act.
After extensive public participation and consideration of the issues raised by parliament when annulling the 2017 Regulations, the multi sectoral team formulated the Civil Aviation (Unmanned Aircraft Systems) Regulations, 2020 (the UAS Regulations). The UAS Regulations were gazetted and became enforceable on 30th March, 2020.
The UAS Regulations and the annulled 2017 Regulations addressed a few common issues but they were largely different in substance. For example, the annulled 2017 Regulations categorized UAS as private, commercial and recreational and sports and the UAS Regulations categorized the UAS on the basis of the risk posed by the type of operations of the UAS. The UAS Regulations also addressed the privacy and data protection and safety issues raised by parliament when annulling the 2017 Regulations.
Lifting of the ban
After the promulgation of the UAS Regulations, the ban on the operation of UAS in Kenya (that had lasted for about five years) was lifted. This created opportunities for UAS operations and investment in UAS related businesses. By February, 2022, KCAA had registered 200 UAS mainly for agricultural use, filming and news gathering. KCAA has also licenced several UAS training institutions offering training on the use of UAS for commercial purposes and for drone pilots and other personnel training. The opening of the airspace for UAS operation in Kenya has also created opportunities for developed countries to transfer their skills on UAS operations to interested persons in Kenya. For example, the US based Global Drone Training academy has organized a drone business competition in Kenya in conjunction with Kenya Flying Labs, a licenced drone company based in Nairobi. This competition seeks to nurture creativity and hone entrepreneurial skills among Kenya-based early stage technology entrepreneurs with interest in UAS.
Categorization of UAS in Kenya
Unlike other jurisdictions where UAS operations are categorized as private, commercial and recreational and sports, UAS operations in Kenya are categorized based on the risk posed by the type of operations of the UAS.
In order to determine categorization of operations of a UAS, KCAA undertakes a safety risk assessment on the basis of the following:
a. Segregation:
This is the approach used to permit low risk operations. The key consideration is that all risks posed by the UAS to other airspace users can effectively be mitigated by exclusion of the operations of the UAS from airspaces used by other users not involved in the same operations or by airspaces used by manned aircraft. In segregation, there is no interaction with other traffic or part of the operations. As such no conventional air traffic is anticipated and there is no need for active interaction with Air Traffic Services.
In order for an operation to be approved under low risk category, the inherent risks of the operation should be effectively mitigated by segregating such operations from other operations. The risk exposure for such operation should also be at such low levels that segregation alone is considered adequate to mitigate risks.
Where segregation is recommended, all safety requirements are solely the responsibility of the operator of the UAS or group of UAS in whose name the approval/authorisation is granted.
b. Accommodation
This approach is used to facilitate operations where segregation is not feasible. The approach is adopted for operations where confining the operations to an exclusive airspace devoid of any interactions with other UAS or conventional aircraft not part of the operation is not practical.
Accommodation of UAS operations may at times require and benefit from greater operational flexibilities such as higher heights and wider areas of operations including operations not strictly confined to within visual line of sight.
UAS operated under the accommodation arrangement will require; as appropriate; Air Traffic Control approvals and/or a general notification to other airspace users of their activities and necessary safety considerations put in place to prevent unsafe situations arising from the operations. Tighter operation controls are also required under the accommodation arrangements including operating using qualified pilots.
c. Integration
Integration of UAS operations in the air traffic system is the approach adopted to allow operations that are simultaneously conducted with manned air traffic.
Integration is permissible where the UAS is suitably equipped to operate without escalated risks to other airspace users. For UAS to be integrated in the air traffic system it shall be type certified and maintained in accordance with the required standards to guarantee its airworthiness to sustain such operations. Pilots undertaking integrated UAS operations shall be licensed UAS pilots and hold relevant ratings for the UAS they operate.
The specific categories of UAS operation in Kenya are as follows:
1. Category A Operations (Low risk)
This category of operations poses low or minimal risk to the public, property and manned aviation. UAS under this category:
i. will be operated within visual line of site and at a maximum height of 400 feet above ground level and 50 meters lateral distance from any persons, building or object not associated with the operations and shall only be conducted within Visual line-of-sight (VLOS); and
ii. shall not be more than 25kg maximum take-off mass together with associated payloads.
Operations under this category shall be conducted within segregated airspaces and away from any notified prohibited, restricted and/or danger areas unless expressly authorized by the KCAA.
UAS operators in this category shall possess a certificate issued by the KCAA permitting them to conduct operations.
2. Category B Operations (medium risk/regulated lower risk)
Operations under this category pose medium risk to the public, property and manned aviation. It encompasses operations where the risk to persons being overflown is greater than what would be permitted in Category A, or involves sharing the airspace with other manned or unmanned aircraft.
UAS under this category shall be operated within visual line of site (including extended visual line of site) at all time and heights above ground and distances from any persons, buildings or objects not associated with the operations as may be determined by KCAA2. The limitations/restrictions will be applied based on the type of operation, complexity of the UAS and the specific qualifications and experience of the operating personnel.
UAS operated under this category may be operated in non-segregated airspaces but away from controlled airspaces and shall have all such equipment as necessary to ensure the safe and secure operations.
Extended visual line of site is defined in the UAS Regulations as an operating method whereby the remote pilot in
command (PIC) relies on one or more remote observers to keep the unmanned aircraft in visual sight at all times,
relaying critical flight information via radio and assisting the remote pilot in maintaining safe separation from other
aircraft (manned and unmanned). A remote observer is a trained and competent person designated by the
operator who, by visual observation of the remote piloted aircraft, assists the remote pilot in safe conduct of the
flight.
Operations in category B shall be conducted away from any notified prohibited, restricted and/or danger areas unless expressly authorized by the KCAA.
Personnel operating UAS in this category shall be in possession of a valid license issued by the KCAA.
Operations under this category must be authorized by KCAA
Approval for the operation would be based on analysis of a safety risk assessment and any mitigations employed to reduce any risks to an acceptable level.
3. Category C (high risk/regulated)
This Category of operations poses high risk to safety of individuals, property and manned aviation.
UAS operations in this category shall be conducted in any airspace not classified as prohibited, restricted or danger and shall be subject to Air Traffic Control instructions and guidance and at heights and lateral distances from any persons, buildings or objects as prescribed in the Civil Aviation (Rules of the Air) Regulations.
All operations under this category shall be approved or authorized by the Authority.
UAS operations in this category may be conducted beyond visual line-of-sight provided that the UAS has the required capabilities and is fitted with appropriate equipment and the pilot is suitably qualified and holds appropriate ratings for such an operation.
UAS in operated in this category shall be issued with a Certificate of Airworthiness by the Authority based on the type Certificate issued by the State of design/manufacture.
Personnel operating UAS in this category shall be in possession of a valid license issued by the KCAA and endorsed with appropriate ratings for the type of UAS.
Manufacture, assembly and testing of UAS in Kenya
Any person intending to manufacture, assemble, modify, test, sell a UAS or a component of a UAS must obtain authorisation from KCAA3. All assembly of UAS in Kenya must be conducted in accordance with the manufacturer’s specifications acceptable to KCAA and the assembly records must be kept by the person assembling the UAS.
Ownership, import and export and registration of UAS in Kenya
A person is eligible to own a UAS in Kenya if that person is:
- a Kenyan citizen of minimum age of eighteen (18) years; or
- a resident of Kenya of minimum age of eighteen (18) years. A resident of Kenya is a person holding a residence permit issued under the Kenya Citizenship and Immigration Act;
- a legal entity registered or established by any law in Kenya; or
- the national or county government.
Any transfer of ownership of UAS in Kenya must be notified to the KCAA. A person other than the national government shall not own, register or operate a UAS with military specifications.
An operator or owner of a UAS in Kenya must register the UAS with KCAA and be issued with a certificate of registration. Application for registration are submitted online in a prescribed form. An operator or owner of a UAS is required to create an online account with KCAA for purposes of accessing UAS services including registration services. Every registered UAS must have an identification plate engraved, stamped or etched with its registration identification, in a way that such marking will not become detached or defaced from the UAS in the event of an accident or destruction of the UAS.
A person who wants to import a UAS or a UAS component must get a permit from the KCAA.
A person who intends to temporarily export a UAS from Kenya must notify KCAA and get approval for the export. Temporary export occurs where a Kenyan registered UAS temporarily exits the country and returns without being registered in another State.
A person who intends to export a Kenyan registered UAS permanently shall notify KCAA and obtain a deregistration certificate.
A registered UAS can be de-registered upon request by the owner for purposes of registering it in another country or upon destruction of the UAS or permanent withdrawal from use or in the interest of national security or where KCAA determines that the owner or operator has violated the UAS Regulations.
Authorisation of UAS Operations
A person shall not operate a UAS without authorisation by KCAA. Authorisation shall be granted in accordance with the category of operation4.
A person who operates UAS for commercial activities, reward or hire must obtain a Remote Aircraft Operators Certificate (ROC) from KCAA. The ROC will contain conditions and limitations in the operations specifications attached to the Certificate.
The issuance of the ROC is dependent on the UAS operator demonstrating an adequate organization, method of control and supervision of flight operations, training programme and ground handling and satisfactory maintenance arrangements.
An operator will qualify to be issued with a ROC if:
- It is registered in Kenya;
- It has its principal place of business in Kenya;
- It meets the applicable regulations and standards for holding a ROC;
- It is properly qualified and adequately staffed and equipped to conduct safe operations in commercial operations of the UAS;
- It holds a security clearance issued by the Ministry of Defence; and
- It has an aircraft operator security programme approved by KCAA
The ROC issued by KCAA shall be valid for 12 months unless a shorter period is specified in the ROC or the same is surrendered to KCAA.
The process of applying for the ROC is extensively provided in the KCAA UAS Manual of Implementing Standards.
Safety
The holder of a ROC shall establish a safety management system commensurate to its size and the complexity of its operations. The safety management system must include:
- A process to identify actual and potential safety hazards and assess the associated risks;
- A process to develop and implement remedial action necessary to maintain an acceptable level of safety;
- Provision for continuous and regular assessment of the appropriateness and effectiveness of safety management activities.
- The safety management system should also include safety policy and objectives including a documented emergency response plan, safety risk management, safety assurance and safety promotions.
UAS training institutions must demonstrate how they intend to manage safety during the operation of UAS.
KCAA is required to establish a mechanism for members of the public to report accidents, incidents and alleged violation of the UAS Regulations by the owners or operators of UAS. A person who owns or operates a UAS must notify KCAA immediately of the loss or theft of a UAS or a component of a UAS
A UAS operator shall ensure that all incidents and accidents involving the UAS are reported to KCAA.
As part of safety measures, the UAS Regulations prohibit negligent or reckless operation of UAS5, carriage of dangerous goods6, operation in congested areas and crowds7, operation on vicinity of public roads8 and landing on roads9.
A UAS operator must have at least third party insurance to provide financial compensation when the safety management systems of the UAS have failed to prevent an accident or loss has been suffered due to an unforeseen event.
Airworthiness
A UAS owner or operator must ensure that all the components of a UAS are in working order and in accordance with the manufactures user manual.
No person may operate a UAS unless within the preceding 12 calendar months, the UAS has had a condition inspection performed according to KCAA accepted Programme and according to the Applicant’s Inspection and Maintenance Program. The condition inspection must have found the UAS to be in a condition for safe operation. The inspection is required to be recorded in the UAS maintenance records.
Operation licenses
In determining whether to register a UAS or issue any authorisation, licence or permit under the UAS Regulations, KCAA shall consider:
- the national security of Kenya and relevant international and regional obligations and commitments of Kenya under treaties and agreements;
- risk to public interest and safety;
- proposed use of the UAS; and
- whether the applicant is subject to administrative investigations by KCAA.
The following authorisation, licence or permit are required under the UAS Regulations:
- An operator or owner of a UAS will be issued with a certificate of registration upon registration of the UAS;
- A person who intends to import a UAS or a component of a UAS must apply for and obtain a permit from KCAA;
- A person intending to manufacture, assemble, modify, test, sell a UAS or a component of a UAS must apply for and obtain authorisation from KCAA;
- A person intending to temporarily operate a UAS not registered in Kenya should apply for and be issued with a temporary permit by the KCAA. A temporary permit is issued for 30 days and shall be renewable once;
- A person who operates a UAS for commercial activities, reward or hire must obtain a Remote Aircraft Operators Certificate;
- A person who provides training or instructions on the operation of UAS must apply for and obtain authorisation from KCAA. Authorization to provide training and instruction in UAS operation shall be granted in the form of a UAS Training Organization (UTO) Certificate and the holder of a UTO Certificate shall provide training in UAS operation and in line with the conditions specified on the UTO Certificate.;
- All other UAS operations require authorisation from KCAA10
A UAS operator must also apply to KCAA for the approval of an area of operation for a particular category of UAS.
The charges payable for issuance of the various approvals, permits and licenses are provided in the Civil Aviation (Regulatory Fees and charges for unmanned Aircraft Systems) Regulations, 2020.
Personnel licensing
A person operating a UAS as a pilot in command or a co-pilot must have a remote pilot licence issued by KCAA. Student pilots are issued with Student Remote pilot licences and qualified pilots are issued with Remote Pilot licence depending on different ratings (B-VLOS Rating, E-VLOS Rating and Instructor Rating).
Remote pilots are required to undergo aviation medical examination, training and demonstrate competency before being licensed. The training requirements and degree of competency required depends on the complexity of the UAS being flown and the purpose of the flight.
All UAS personnel responsible for safety of flight must be knowledgeable by KCAA, trained, experienced and otherwise qualified in their respective duties. These qualifying requirements should be manifest in personnel licences issued by KCAA.
RPA observers must also be issued with observer certificates by KCAA
The charges payable for issuance of the various approvals, permits and licenses are provided in the Civil Aviation (Regulatory Fees and charges for unmanned Aircraft Systems) Regulations, 2020.
Operation zones, limitations and prohibitions
The Act requires UAS to be flown either in controlled airspace as specified by the KCAA or if flown in airspaces open to civil aircraft, it is controlled so as to avoid endangering civil aircraft.
Under the UAS Regulations, UAS should not be operated:
above 400 feet above ground level and within 50 meters of any person, vessel, vehicle, or structure which is not under the person in charge of the UAS unless higher heights and lateral distances are approved by KCAA;
in conditions other than Visual Meterological Conditions (VMC) unless the pilot is duly rated, the UAS meets required specifications and is approved by the KCAA;
at night, unless specifically cleared by the KCAA on a case by case basis;
where cameras, imaging devices or other sensors capture information, pictures or videos, extending beyond the prescribed area of approved operation. In the instance where cameras, imaging devices or other sensors capture information, pictures or videos, such information shall not be reproduced, processed, shared, distributed or published; and
The UAS Regulations prohibit any person from operating in a negligent or reckless manner. A UAS is operated in a negligent or reckless manner where the operator:
- in the course of operation endangers other aircraft, persons or property;
- operates in a prohibited, a restricted and danger areas published
- in the Kenya Aeronautical Information Publication unless
- permitted by KCAA; or
- operated in the following areas without permission of KCAA:
- strategic installations;
- ANS facilities;
- high tension cables and communication masts;
- prisons;
- police stations;
- courts of law;
- scenes of crime;
- schools; and
- hospitals.
The UAS Regulations further prohibit operators of UAS from carriage of dangerous goods in the UAS unless approved by KCAA and landing Unmanned Aircraft on roads.
Air Traffic Services
Integration of UAS by the Air Navigation Service Provider
The UAS Regulations require Air Navigation Service Providers (ANSPs) to develop procedures for the integration of UAS in the air traffic system to ensure safety in simultaneous operation of conventional manned air traffic and UAS. The procedures should be submitted to KCAA for acceptance and publicised for information to all airspace users.
The ANSPs should use a safety management approach to determine how to integrate UAS within their airspace by including a hazard identification and risk management assessment associated with the types of operations anticipated. This might include the airspace design, volume and complexity of traffic, operating procedures and meteorological conditions.
The following should be considered by ANSPs in developing their respective UAS integration plans:
a) Traffic complexity
The operation of UAS within an airspace may increase the complexity of the traffic. If multiple UAS are in a particular area concurrently, the complexity may increase more significantly than the introduction of multiple manned aircraft. ANSPs should consider, on a case-by-case basis, whether the characteristics of the UAS operation, including flight performance, communications methods, can be supported without additional resources or procedures.
b) Latency of UAS response
UAS response time to control instructions issued by the Air Traffic Control Officer (ATCO) may be longer than those of manned aircraft in the airspace. The effects of this should be assessed to determine whether ATCOs can plan and issue instructions in an acceptable timeframe to obtain the desired actions.
c) Conspicuity
Owing to the relatively small size and low conspicuity of some UAS, it may be difficult for ATCOs, pilots of manned aircraft and other remote pilots to acquire visual contact with the UAS. It may also be difficult to give conditional clearances or effectively pass traffic information to other airspace users with reference to the UAS. This may affect the number and type of clearances issued and subsequently the operational safety and efficiency of the airspace. Air Traffic Service authorities and ANSPs should be mindful of this when granting permission for UAS operations to be integrated into non- segregated airspace.
d) Non-standard method of communication
For small UAS, due to Radio Line Of Sight challenges, the remote pilot may need to communicate with ATC through means other than the published Very High Frequency/High Frequency radio frequency (RF) for the airspace in which the UAS will be operating. Prior to approving use of a non-standard method of communication, the ANSP should assess the implications on the overall traffic situation for the airspace and on the ATCO’s ability to effectively manage different methods of communication.
e) UAS sensitive to hazardous meteorological conditions
Small UAS may be more sensitive to hazardous meteorological conditions due to their low Maximum Take Off Mass and, more specifically, the wing/power loading of the aircraft.
f) Acceptance by airspace users and ATCOs
There may be compatibility issues in terms of operating procedures and demands for airspace access between manned and unmanned aircraft operators. It is recommended that stakeholder forums should be conducted to address this knowledge gap for ATCOs and airspace users to ensure mutual awareness of UAS performance characteristics and the types of operation they will be conducting. UAS operators will need to actively participate in these forums to share information and contribute to the effective integration of UAS.
Privacy and security
A UAS operator or owner shall not use a system equipped with an imaging device to conduct Surveillance on or take an image of a person without that person’s written consent.
An Unmanned Aircraft System operator or owner shall not use a System equipped with an imaging device to record an image of privately owned or leased real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.
A person is presumed to have a reasonable expectation of privacy on his or her privately owned real property, licensed or leased property if that person is not observable by persons located at ground level in a place where they have a legal right to be.
A UAS equipped with an imaging device may however, with the approval of KCAA be used for the purpose of—
- Mapping and evaluating the earth’s surface, including terrain
- and surface water bodies and other features;
- Investigation of forests and forest management;
- Search and rescue; or
- Investigation of vegetation or wildlife.
The owner or operator of a System equipped with an imaging device shall comply with the Data Protection Act, 2019 Laws of Kenya and the regulations promulgated under the act.
A UAS operator or owner shall not operate the system in a manner that constitutes nuisance to the public, a person or to the property of another.
Security Procedures
A ROC holder shall not operate an Unmanned Aircraft System without operator security procedures approved by KCAA.
The approval process of the security procedures shall be in accordance with the Civil Aviation (Security) Regulations. UAS Security procedures checklist shall be used by KCAA for review and approval of the procedures.
An Unmanned Aircraft System operator shall specify the security measures, procedures and practices for every aspect of its UAS operation.
Should you have any questions regarding the information in this article, please do not hesitate to contact Fred Mogotu at Fred@fred-law.com.
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