PART II – ESTABLISHMENT OF CENTRAL AUTHORITY
5. Central Authority
(1) There is established an authority to be known as the Central Authority to perform functions specified in this Act.
(2) The office of the Attorney-General shall be designated as the Central Authority established under subsection (1) of this section.
6. Functions of central authority
(1) The functions of the Central Authority shall include—
(a) transmitting and receiving requests for legal assistance and executing or arranging for the execution of such requests;
(b) ensuring that requests for legal assistance conform to the requirements of law and Kenya’s international obligations;
(c) where necessary, certifying or authenticating, or arranging for the certification and authentication of, any documents or other material supplied in response to a request for legal assistance;
(d) taking practical measures to facilitate the orderly and rapid disposition of requests for legal assistance;
(e) negotiating and agreeing on conditions related to requests for legal assistance, as well as to ensuring compliance with those conditions;
(f) making any arrangements deemed necessary in order to transmit the evidentiary material gathered in response to a request for legal assistance to a requesting state or to authorize any other authority to do so;
(g) carrying out such other tasks as provided for by this Act or which may be necessary for effective legal assistance to be provided or received.
PART II – ESTABLISHMENT OF CENTRAL AUTHORITY
6. Functions of central authority
(2) For the purposes of this Act, legal assistance means mutual legal assistance in criminal matters and includes, but is not limited to—
(a) identifying and locating of persons for evidential purposes;
(b) examining witnesses;
(c) effecting service of judicial documents;
(d) executing searches and seizures;
(e) examining objects and sites;
(f) providing, including formal production where necessary, originals or certified copies of relevant documents and records, including but not limited to government, bank, financial, corporate or business records;
(g) providing information, evidentiary items and expert evaluations;
(h) facilitating the voluntary attendance of witnesses or potential witnesses in a requesting state;
(i) facilitating the taking of evidence through video conference;
(j) effecting a temporary transfer of persons in custody to appear as a witness;
(k) interception of items during the course of carriage by a public postal service;
(l) identifying, freezing and tracing proceeds of crime;
(m) the recovery and disposal of assets;
(n) preserving communications data;
(o) interception of telecommunications;
(p) conducting covert electronic surveillance;
(q) any other type of legal assistance or evidence gathering that is not contrary to Kenyan law.
PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE
12. Service of documents
(1) A request under this Act may seek assistance in the service of documents relevant to a criminal matter.
(2) The request made under subsection (1) shall be accompanied by the necessary documents to be served.
(3) The Central Authority shall ensure that the documents to be served are served either by—
(a) any particular method stated in the request, unless such method is contrary to Kenyan law; or
(b) any method prescribed by Kenyan law for the service of documents in criminal proceedings.
(4) The Central Authority shall transmit to a requesting state a certificate or other proof as to the service of the documents or, if they have not been served, as to the reasons which have prevented service.
(5) Notwithstanding the provisions of section 8(1) a requesting state may send legal documents directly to the intended person who is present in Kenya unless—
(a) the address of the person for whom the document is intended is unknown or uncertain; or
(b) the relevant law of a requesting state requires proof of service; or
(c) it has not been possible to serve the document by post; or
(d) there are reasons to believe that the dispatch by post will be ineffective or is inappropriate.
13. Provision or production of Records
(1) A request under this Act may seek the provision or production of any documents, records or other material relevant to a criminal matter arising in a requesting state.
(2) Where documents or records requested under subsection (1) are not publicly available, the Competent Authority may provide copies of such documents, records or other material to the same extent and under the same conditions as applies to provision of such records to Kenya law enforcement agencies or prosecution or judicial authorities.
14. Examination of witnesses
(1) A request under this Act may seek assistance in the examination of witnesses.
(2) The request made under subsection (1) shall specify as appropriate, and so far as the circumstances of the case may permit—
(a) the names and addresses or the official designations of the witnesses to be examined;
(b) the questions to be put to the witnesses or the subject matter about which they are to be examined;
(c) whether it is desired that the witnesses be examined orally or in writing;
(d) whether it is desired that an oath be administered to the witnesses or, as Kenyan law allows, that they be required to make their solemn affirmation;
(e) any provisions of the law of the requesting state as to privilege or exemption from giving evidence which appear especially relevant to the request;
(f) any special requirements as to the manner of taking evidence relevant to its admissibility in a requesting state; and
(g) any other relevant information.
(3) The request may seek permission for, so far as Kenyan law permits, the accused person or his legal representative to attend the examination of the witness and ask questions of the witness.
15. Attendance of witness in requesting state
(1) A request under this Act may seek legal assistance in facilitating personal appearance as a witness before a court exercising jurisdiction in a requesting state.
(2) In making a request under subsection (1), a requesting state shall apply to the Central Authority at least thirty days prior to the date of appearance.
(3) In the event of urgency, the Central Authority may accept a shorter period of notice.
(4) The request under this section shall specify—
(a) the subject matter upon which it is desired to examine the witness;
(b) the date on which the appearance of the witness is required;
(c) the reasons why personal appearance of the witness is required; and
(d) details of the travelling, subsistence and other expenses payable by a requesting state in respect of personal appearance of the witness.
(5) The Central Authority shall notify a person, in accordance with Kenyan law, whose appearance as a witness in a requesting state is desired, and shall—
(a) enquire whether the person agrees to appear;
(b) inform a requesting state of the answer; and
(c) if the person is willing to appear, make appropriate arrangements to facilitate personal appearance of the witness.
(6) A person whose appearance as a witness is the subject of a request may refuse to appear as a witness where Kenya law, either permits such a refusal or does not make him a compellable witness.
(7) Where a refusal is based on the grounds contained in subsection (6), the Central Authority shall provide a requesting state with a certificate setting out the relevant statutory provisions which permits such a refusal or does not make the witness a compellable witness under Kenyan law.
(8) A person served with summons to appear as a witness in a requesting state and who fails to comply with the summons shall not by reason thereof be liable to any penalty or measure of compulsion in either Kenya or the requesting state notwithstanding any contrary statement in the summons.
16. Voluntary attendance of persons in custody
(1) Subject to section 17, a request under this Act may seek the temporary transfer of a person in custody in Kenya for purposes of identification, providing assistance in obtaining evidence for investigations or prosecutions or to appear as a witness before a court exercising jurisdiction in a requesting state.
(2) A request made under this section shall—
(a) state the name of the person in custody;
(b) if possible, state the place of confinement of the person in custody;
(c) state the place to which the person in custody is sought to be transferred;
(d) specify the subject matter on which it is desired to examine the witness;
(e) state the reasons for which personal appearance of the witness is required; and
(f) specify the period of time at or before the expiration of which the person in custody is to be returned.
(3) A statement of consent from the person in custody whose copy shall be made available to the Central Authority shall be a prerequisite for the transfer.
(4) A person in custody whose transfer is the subject of a request and who does not consent to the transfer shall not by reason thereof be liable to any penalty or measure of compulsion in either Kenya or a requesting state.
(5) Where a person in custody is transferred, the Central Authority shall notify a requesting state of—
(a) the date upon which the person is due under the law of Kenya to be released from custody;
(b) the date by which the Central Authority requires the return of the person;
(c) any variations in such dates in (a) and (b).
(6) A requesting state shall keep the person transferred in custody, and shall return the person to Kenya when the presence of such person as a witness in the requesting state is no longer required, and in any case by the earlier of the dates notified under subsection (5) of this section.
(7) The obligation to return the person transferred shall subsist notwithstanding the fact that the person is a national of a requesting state.
(8) A requesting state to which the person is transferred shall not require Kenya to initiate extradition proceedings for the return of the person.
(9) Where a person in custody who is serving a term of imprisonment in Kenya is transferred to a requesting state under a request made in this section, the time spent in custody shall count as part of any sentence required to be served by that person in custody for the purposes of the Prisons Act (Cap. 90).
(10) Nothing in this section shall preclude the release in a requesting state without return to Kenya of any person transferred where the two States and the person concerned have agreed to such release.
17. Exception for Kenyan citizens or young persons
Section 16 shall not apply in respect of a person who, at the time the application is presented, is a Kenyan citizen or a child within the meaning of the Children Act (No. 8 of 2001).
18. Search and seizure
(1) A request under this Act may seek assistance in the search and seizure of property in Kenya.
(2) The request made under subsection (1) shall specify the property to be searched and seized and shall contain, so far as is reasonably practicable, all information available to a requesting state which may be required to be adduced in an application under Kenyan law for any necessary warrant or authorization to effect the search and seizure.
(3) Subject to the relevant law, the Competent Authority shall provide such certification as may be required by a requesting state concerning the result of any search, the place and circumstances of seizure, and the subsequent custody of the property seized.
19. Lending of exhibits
(1) A request under this Act may seek to have an exhibit that was admitted in evidence in a proceeding in respect of an offence in a court in Kenya lent to a requesting state.
(2) An application made under subsection (1) shall—
(a) contain a description of the exhibit requested to be lent;
(b) designate a person or class of persons to whom the exhibit is sought to be given;
(c) state the reasons for the request, as well as contain a description of any tests that are sought to be performed on the exhibit and a statement of the place where the tests will be performed;
(d) state the place to which the exhibit is sought to be removed; and
(e) specify a period of time at or before the expiration of which the exhibit is to be returned.
(3) Where an exhibit is lend to a requesting state upon request made under subsection (1), the Central Authority shall notify a requesting state of—
(a) description of the exhibit;
(b) description of any tests thereby authorized to be performed on the exhibit, as well as a statement of the place where the tests will be performed; and
(c) the period of time of which the exhibit shall be returned.
20. Presumption of continuity
The burden of proving that an exhibit, lent to a requesting state pursuant to a request under section 19 and returned to Kenya, is not in the same condition as it was when the lending was made or that it was tampered with after the lending was made shall be on the party who makes that allegation and in the absence of that proof, the exhibit shall be deemed to have been continuously in the possession of an authorized person or authority.
21. Defence request
(1) Where criminal proceedings have been instituted in Kenya against a person, or where a person is joined in such proceedings as a third party, the Competent Authority may, on application to the court by either the said person or his legal representative, issue a request for legal assistance to a requesting state.
(2) The fact that a request under subsection (1) originates from a person charged or his legal representative shall not be a ground for refusal by the Competent Authority to execute the request.
22. Use of video conferencing technology
A testimony, identification of a person or thing or any other form of legal assistance under this Part may be provided by use of video or audio transmission technology.
PART V – RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS
23. Identification, tracing etc.
(1) Kenya shall assist in proceedings involving the identification, tracing, freezing, seizure and confiscation of the proceeds and instruments of crime under its laws or any other arrangement to which Kenya may be bound in relation to a requesting state.
(2) A request for legal assistance under this section shall include—
(a) details of the property in relation to which co-operation is sought;
(b) the connection, if any, between the property and the offences in respect of which the request is made;
(c) where known, details of any third party interests in the property; and
(d) a certified copy of the freezing or seizing decision or final decision of confiscation made by a court.
(3) Nothing in this section shall prejudice the rights of bona fide third parties.
24. Measures for asset recovery through international co-operation
When providing legal assistance under section 23 with respect to proceeds and instrumentalities of crime, Kenya shall take such measures, in accordance with the provisions of this Act or any other relevant law, as may be necessary to—
(a) permit a requesting state to give effect to an order of confiscation issued by its competent court or authority;
(b) permit competent authorities of a requesting state, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offence of money-laundering or such other offence as may be within its jurisdiction or by other procedures authorized under Kenyan law;
(c) allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
(d) permit competent authorities of Kenya to freeze or seize property upon a freezing or seizure order issued by a court or a competent authority of such a requesting state that provides a reasonable basis for a requesting state to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation for purposes of paragraph (a) of this section;
(e) permit competent authorities of Kenya to freeze or seize property upon a freezing or seizure order issued by a court or a competent authority of such a requesting state that provides a reasonable basis for a requesting state to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation for purposes of paragraph (a) of this section;
(f) recognize a requesting state’s claim as a legitimate owner of property acquired through the commission of a criminal offence;
(g) consider taking any additional measures as to permit its competent authorities to preserve property for confiscation, such as on the basis of a foreign arrest or criminal charge related to the acquisition of such property.
25. Refusal of co-operation
In addition to the grounds of refusal set out in this Act, co-operation under this Part may be refused if a requesting state does not provide sufficient and timely evidence or if the property is of an insignificant value.
26. Return and disposal of assets
(1) Subject to the rights of third parties and in accordance with this Act or any other written law or any other arrangements to which Kenya is a bound, property confiscated under the provisions of this Act shall be disposed of, including return to a requesting state, upon request.
(2) Before the return of the property confiscated to a requesting state under subsection (1) and as a basis of return, Kenya shall—
(a) reasonably establish prior ownership of such property by a requesting state; or
(b) consider damage likely to be caused to a requesting state if the property is not returned; or
(c) consider the need for compensation to the victims of the crime in a requesting state.
(3) Where appropriate, unless parties decide otherwise, Kenya may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property under this section.
PART VI – INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE
27. Interception of telecommunications
(1) For the purpose of a criminal investigation, Kenya may, in accordance with the provisions of this Act and any other relevant law, execute a request from a requesting state for—
(a) the interception and immediate transmission of telecommunications; or
(b) the interception, recording and subsequent transmission of telecommunications.
(2) Without prejudice to the generality of subsection (1), a request may be made in relation to the use of means of telecommunications by the subject of the interception, if this subject is present in—
(a) Kenya and a requesting state needs the technical assistance of Kenya to intercept such communications; or,
(b) Kenya and a requesting state communications are capable of being intercepted; or
(c) a third state, which has been informed accordingly and a requesting state need the technical assistance of Kenya to intercept such communications.
(3) A request under this section shall include—
(a) an indication of the authority making the request;
(b) confirmation that a lawful interception order or warrant has been issued in connection with a criminal investigation, if such an order or warrant is required by law;
(c) information for the purpose of identifying the subject of the requested interception;
(d) details of the criminal conduct under investigation;
(e) the desired duration of the interception; and
(f) if possible, the provision of sufficient technical data, in particular the relevant network connection number, communications address or service identifier to ensure that the request can be met.
(4) Where a request has been made under subsection (1)(a) and the immediate transmission of the contents of an intercepted communication is not possible, Kenya shall undertake to comply with the request as though it were made under subsection 1(b).
(5) The information provided under this section shall be confidential and shall be kept in accordance with the provisions of this Act or any other relevant written law.
28. Stored communications
Nothing in this Part shall preclude a requesting state from making a request for legal assistance in accordance with Kenyan law for the provision of stored communications.
29. Interception of items during the course of carriage by a public postal service
For the purpose of a criminal investigation, a requesting state may, in accordance with the requirements of this Act or any other relevant law, make a request to Kenya for the interception of an item during the course of its carriage by a public postal service and immediate transmission of the said item or a copy thereof.
30. Bilateral or multilateral arrangements
Nothing in this Part shall preclude any bilateral or multilateral arrangements for the purpose of facilitating the exploitation of present and future technical possibilities regarding the lawful interception of telecommunications.
31. Preservation of communications data
(1) A requesting state may request Kenya for the preservation of communications data.
(2) A request made under subsection (1) may be directly transmitted to Kenya and shall be executed in accordance with Kenyan law.
(3) A request for the preservation of communications data made under this section shall—
(a) specify the identity of the authority making the request;
(b) contain a brief description of the conduct under investigation;
(c) contain a description of the communications data to be preserved
and its relationship to the investigation or prosecution, and in particular identifying whether the communications data to be preserved includes—
(i) subscriber information;
(ii) traffic data;
(iii) any other information falling within the definition of communications data.
(d) contain a statement that a requesting state intends to submit a
request for legal assistance to obtain the communications data within the period permitted under this section.
(4) The preservation of communications data pursuant to a request made under this section shall be for a period of one hundred and twenty days, pending submission by a requesting state of a request for legal assistance to obtain the preserved communications data however, following the receipt of such a request, the data shall continue to be preserved pending the determination of that request and, if the request is granted, until the data is obtained pursuant to the request for legal assistance.
(5) If the Competent Authority considers that the preservation of communications data pursuant to a request made under this section will not ensure the future availability of the communications data, or will threaten the confidentiality of, or otherwise prejudice the investigation in a requesting state, it shall promptly inform a requesting state, which shall then determine whether the request should nevertheless be executed.
(6) Notwithstanding the grounds for refusal under this Act, a request for the preservation of communications data under this section may be refused only to the extent that it appears to the Central Authority that compliance would be contrary to the laws or Constitution of Kenya, or would prejudice the security, international relations, or other essential public interests of Kenya.
32. Covert electronic surveillance
(1) A request may be made to Kenya from a requesting state for deployment of covert electronic surveillance.
(2) Covert electronic surveillance shall take place in accordance with the procedures provided for under Kenyan law.
(3) Nothing in this section shall preclude a request for assistance involving surveillance, including the use of a tracking device, other than that provided for in this section.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.