PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

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).

PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

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.