PART VIII—PROTECTION OF NATIONAL SECURITY OR THIRD PARTY INFORMATION

Information Provided by Third Parties

160. (1) Where a request is received from another State for Kenya’s consent to the disclosure to the ICC of a document or information that had been disclosed to the State in confidence, the Attorney-General shall either
(a) consent to the disclosure; or
(b) undertake to resolve the matter with the ICC.

(2) The provision of an undertaking under subsection (1) (b) does not prevent the Attorney-General from refusing the assistance sought in accordance with section 159 (4).

PART II – ESTABLISHMENT OF CENTRAL AUTHORITY

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;

PART III – MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS

7. Request from Kenya

(1) A request for legal assistance from Kenya shall be made by the Competent Authority.

(2) A request made under subsection (1) may be initiated by any law enforcement agency, or prosecution or judicial authority competent under Kenyan law.

(3) In the event of urgency or as permitted by any other written law, requests may be sent by direct transmission from a Competent Authority to a competent authority of a requested state for execution
subject to domestic law of the requested state.

(4) Where further information is required before a request under this section is executed, in so far as practicable, such information shall be provided for and within any deadlines as may be set by a requested state

PART III – MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS


8. Incoming requests for legal assistance

(1) A request from a requesting state shall be made in writing to the Central Authority.

(2) Upon receipt of the request under subsection (1), the Central Authority shall as soon as is reasonably practicable acknowledge receipt of such request and forthwith transmit the same to the relevant competent authority.

(3) For the purpose of subsection (1), “in writing” includes e-mail, facsimile or other agreed forms of electronic transmission provided that appropriate levels of security and authentication are put in place.

(4) Subject to the provisions of this Act, the Competent Authority shall grant the legal assistance requested in subsection (1) as expeditiously as practicable.

(5) The Competent Authority may seek additional information from a requesting state if it considers necessary.

(6) If the Competent Authority considers that—
(a) the request does not comply with the provisions of this Act; or
(b) in accordance with the provisions of this Act, the request for legal assistance is to be refused in whole or in part; or
(c) the request cannot be complied with, in whole or in part; or
(d) there are circumstances which are likely to cause a significant delay in complying with the request,
it shall promptly inform a requesting state, giving reasons .

PART IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

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.

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.