Service of documents - national procedures for ICC proceedings


Kenya - International Crimes Act 2008 EN


Service of Documents and Appearance of Witnesses

86. (1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, paragraph 7 of article 58, article 64 or paragraph 1 (d) of article 93 of the Rome Statute in arranging for the service of a document in Kenya, the Attorney-General may shall give authority for the request to proceed if he is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC; and
(b) the person or body to be served is or may be in Kenya.

(2) If the Attorney-General gives authority for the request to proceed, he shall forward the request for service to the appropriate Kenyan agency, and that agency shall, without delay—
(a) use its best endeavours to have the process served—

(i) in accordance with any procedure specified in the request; or
(ii) if that procedure would be unlawful or inappropriate in Kenya, or if no procedure is specified, in accordance with the law of Kenya; and
(b) transmit to the Attorney-General—

(i) a certificate as to service, if the document is served; or
(ii) a statement of the reasons that prevented service, if the document is not served.

(3) In this section, "document" includes—
(a) a summons requiring a person to appear as a witness; and
(b) a summons to an accused that has been issued under paragraph 7 of article 58 of the Rome Statute.

Kenya - Mutual Legal Assistance Act 2011 (2012) EN


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.


47. Transmission and return of material

(1) Where compliance with a request under this Act would involve the transmission of any document, record or property, Kenya may—
(a) postpone the transmission of the material if it is required in connection with proceedings in that state, and in such a case shall provide certified copies of a document or record pending transmission of the original ; or
(b) require a requesting state to agree to terms and conditions to protect third party interests in the material to be transmitted and may refuse to effect such transmission pending such agreement.

(2) Where any document, record or property is transmitted in compliance with a request under this Act, it shall be returned to Kenya when it is no longer required in connection with the criminal matter specified in the request unless indicated that its return is not desired.

Rome Statute

Article 93 Other forms of cooperation

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:

(d) The service of documents, including judicial documents;

(i) The provision of records and documents, including official records and documents;