PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

RESTITUTION OF PROPERTY

177. Property found on accused person
Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—
(a) that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or
(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.

178. Property stolen
(1) If a person guilty of an offence mentioned in Chapters XXVI to XXXI, both inclusive, of the Penal Code (Cap. 63), in stealing, taking, obtaining, extorting, converting or disposing of, or in knowingly receiving, any property, is prosecuted to conviction by or on behalf of the owner of the property, the property shall be restored to the owner or his representative.
(2) In every case referred to in this section, the court before whom the offender is convicted may award from time to time writs of restitution for the property or order the restitution thereof in a summary manner:
Provided that—
(i) where goods as defined in the Sale of Goods Act (Cap. 31) have been obtained by fraud or other wrongful means not amounting to stealing, the property in the goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender;
(ii) nothing in this section shall apply to the case of a valuable security which has been in good faith paid or discharged by a person liable to the payment thereof, or, being a negotiable instrument, has been taken or received in good faith by transfer or delivery by a person for a just and valuable consideration without notice or without reasonable cause to suspect that it has been stolen.
(3) On the restitution of stolen property, if it appears to the court by the evidence that the offender has sold the stolen property to a person, and that that person has had no knowledge that it was stolen, and that moneys have been taken from the offender on his apprehension, the court may, on the application of the purchaser, order that out of those moneys a sum not exceeding the amount of the proceeds of the sale be delivered to the purchaser.
(4) The operation of an order under this section shall (unless the court before which the conviction takes place directs to the contrary in any case in which the title to the property is not in dispute) be suspended—
(a) in any case, until the time for appeal has elapsed; and
(b) in a case where an appeal is lodged, until the determination of the appeal, and in cases where the operation of any such order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal.
(5) The Chief Justice may make rules for securing the safe custody of property, pending the suspension of the operation of an order made under this section.
(6) A person aggrieved by an order made under this section may appeal to the High Court, and upon the hearing of the appeal the court may by order annul or vary an order made on a trial for the restitution of property to any person, although the conviction is not quashed; and the order, if annulled, shall not take effect, and, if varied, shall take effect as so varied.
(7) In this section and in section 177, “property” includes, in the case of property regarding which the offence appears to have been committed, not only property which was originally in the possession or under the control of a person but also property into which or for which it may have been converted or exchanged and anything acquired by the conversion or exchange whether immediately or otherwise.

PART X – SENTENCES AND THEIR EXECUTION

OTHER SENTENCES

334. Warrant for levy of fine, etc.
(1) When a court orders money to be paid by an accused person or by a prosecutor or complainant for fine, penalty, compensation, costs, expenses or otherwise, the money may be levied on the movable and immovable property of the person ordered to pay it by distress and sale under warrant; but if he shows sufficient movable property to satisfy the order his immovable property shall not be sold.
(2) The person may pay or tender to the officer having the execution of the warrant the sum therein mentioned together with the amount of the expenses of the distress up to the time of payment or tender, and thereupon the officer shall cease to execute it.
(3) A warrant under this section may be executed within the local limits of the jurisdiction of the court issuing it, and it shall authorize the distress and sale of property belonging to the person without those limits when endorsed by a magistrate holding a subordinate court of the first or second class within the local limits of whose jurisdiction the property was found.

PART X – SENTENCES AND THEIR EXECUTION

OTHER SENTENCES

335. Objections to attachment
(1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole or part of property attached in execution of a warrant issued under section 334 may, at any time prior to the receipt by the court of the proceeds of sale of that property, give notice in writing to the court of his objection to the attachment of the property; and the notice shall set out shortly the nature of the claim which the person (hereafter in this section referred to as the objector) makes to the whole or part of the property attached, and shall certify the value of the property claimed by him, and the value shall be deposed to upon affidavit, which shall be filed with the notice.
(2) Upon receipt of a valid notice given under subsection (1), the court shall, by an order in writing addressed to the officer having the execution of the warrant, direct the stay of the execution proceedings.
(3) Upon the issue of an order under subsection (2), the court shall, by notice in writing, direct the objector to appear before it and establish his claim upon a date to be specified in the notice.
(4) A notice shall be served upon the person whose property was, by the warrant, issued under section 334, directed to be attached, and, unless the property is to be applied to the payment of a fine, upon the person entitled to the proceeds of the sale of the property; and the notice shall specify the time and place fixed for the appearance of the objector and shall direct the person upon whom the notice is served to appear before the court at the same time and place if he wishes to be heard upon the hearing of the objection.
(5) Upon the date fixed for the hearing of the objection, the court shall investigate the claim, and for that purpose may hear any evidence which the objector may give or adduce and any evidence given or adduced by a person served with a notice in accordance with the provisions of subsection (4).
(6) If, upon investigation of the claim, the court is satisfied that the property was not, when attached, in the possession of the person ordered to pay the money or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the person ordered to pay the money at that time, it was so in his possession not on his own account or as his own property but on account of or in trust for some other person or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.
(7) If, upon the date fixed for his appearance, the objector fails to appear, or if, upon investigation of the claim in accordance with the provisions of subsection (5), the court is of the opinion that the objector has failed to establish his claim, the court shall order the attachment and execution to proceed, and shall make such order as to costs as it deems fit.
(8) Nothing in this section shall be deemed to deprive a person who has failed to comply with the requirements of subsection (1) of the right to take any other proceedings which, apart from the provisions of this section, may lawfully be taken by a person claiming an interest in property attached under a warrant.

PART XII – SUPPLEMENTARY PROVISIONS

DIRECTIONS IN THE NATURE OF HABEAS CORPUS

389A. Procedure on forfeiture of goods
(1) Where, by or under any written law (other than section 29 of the Penal Code), any goods or things may be (but are not obliged to be) forfeited by a court, and that law does not provide the procedure by which forfeiture is to be effected, then, if it appears to the court that the goods or things should be forfeited, it shall cause to be served on the person believed to be their owner notice that it will, at a specified time and place, order the goods or things to be forfeited unless good cause to the contrary is shown; and, at that time and place or on any adjournment, the court may order the goods or things to be forfeited unless cause is shown by the owner or some person interested in the goods or things:
Provided that, where the owner of the goods or things is not known or cannot be found, the notice shall be advertised in a suitable newspaper and in such other manner (if any) as the court thinks fit.
(2) If the court finds that the goods or things belong to some person who was innocent of the offence in connexion with which they may or are to be forfeited and who neither knew nor had reason to believe that the goods or things were being or were to be used in connexion with that offence and exercised all reasonable diligence to prevent their being so used, it shall not order their forfeiture; and where it finds that such a person was partly interested in the goods and things it may order that they be forfeited and sold and that such person shall be paid a fair proportion of the proceeds of sale.

PART I—PRELIMINARY

Offences Against Administration of Justice

19. (1) If the ICC makes a request for assistance in any investigation or proceedings involving an offence against the administration of justice, that request shall be dealt with—

(b) in the case of a request for enforcement of an order requiring reparation or the payment of a fine or a forfeiture order— in the manner provided in Parts III and VI, which Parts shall apply with any necessary modifications and subject to any cont¬rary provision in the Rome Statute or the ICC Rules;

PART III—GENERAL PROVISIONS RELATING TO REQUESTS FOR ASSISTANCE

20. (1) This Part shall apply to a request by the ICC for assistance that is made under—

(b) any of the following provisions of the Rome Statute—

(v) article 109 (which relates to the enforcement of fines and forfeiture measures).

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Assistance with Enforcement of Forfeiture Orders

121. Where—
(a) the ICC makes an order under paragraph 2 (b) of article 77 of the Rome Statute for the forfeiture of any property and requests assistance under paragraph 1 of article 109 of the Rome Statute to enforce the forfeiture order; and
(b) neither the conviction in respect of which the order was imposed nor the forfeiture order is subject to further appeal,
the Attorney-General may act on the request if he is satisfied that the order is of a kind that can be enforced in the manner provided in sections 122 to 126.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Assistance with Enforcement of Forfeiture Orders

122. (1) The Attorney-General may apply to the High Court for the registration of a forfeiture order or an amendment to such an order.
(2) On an application under subsection (1), the Court shall register the order or the amendment to the order under section 123 if it is satisfied that the order or amendment to the order is in force.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Assistance with Enforcement of Forfeiture Orders

123. (1) A forfeiture order, or an amendment to such an order, shall be registered in the High Court by the registration in accordance with the prescribed procedure, if any, of—
(a) a copy of the order or amendment sealed by the ICC; or
(b) a copy of the order or amendment authenticated in accordance with subsection (2).


(2) A document is authenticated for the purposes of subsection (1) (b) if it purports to be—

(a) signed or certified by a Judge, the Registrar, the Deputy Registrar, or an authorized member of the staff of the ICC; or
(b) authenticated in any other manner authorised by the Rome Statute or the ICC Rules.
(3) An amendment to a forfeiture order does not, for the purposes of this Act, have any effect until it is registered.
(4) A facsimile copy of a sealed or authenticated copy of an order or an amendment of an order has the same effect, for the purposes of this Act, as the sealed or authenticated copy that is not a facsimile.
(5) Notwithstanding subsection (4), registration effec¬ted by means of a facsimile copy ceases to have effect on the expiry of the period of twenty-one days commencing on the date of registration unless, before the expiry of that period, the sealed or authenticated copy is registered.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Assistance with Enforcement of Forfeiture Orders

124. If the High Court registers an order under section 123, the Court may direct the Attorney-General to do either or both of the following—

(a) give notice of the registration, in the manner and within the time the Court considers appropriate, to such persons (other than a person convicted of an offence in respect of which the order was made) as the Court has reason to believe may have an interest in the property;
(b) publish notice of the registration in the manner and within the time the Court considers appropriate.

PART V—DOMESTIC PROCEDURES FOR OTHER TYPES OF CO-OPERATION

Assistance with Enforcement of Forfeiture Orders

125. (1) Where a forfeiture order is registered under section 123—
(a) the property shall, to the extent of the estate, interest or rights (if any) specified in the forfeiture order, be thereby vested in the Republic;
(b) the property is so vested subject to every charge or encumbrance to which the property was subject immediately before the forfeiture order was made and, in the case of land under the provisions of
the Registration of Titles Act, is subject to every
mortgage, lease or other interest recorded under that Act;
(c) if the property is not already in the possession of the Republic, the Republic may take possession of the property;
(d) the property shall not, except with the leave of the High Court and in accordance with any directions of the Court, be disposed of, or otherwise dealt with, by or on behalf of the Republic, before the relevant time; and
(e) if, at the relevant time, the forfeiture order has not been discharged or revoked—

(i) the property shall be disposed of in accordance with any direction of the High Court; and
(ii) the proceeds shall be dealt with in accordance with section 130.

(2) In subsection (1), "relevant time", in relation to property that is the subject of a forfeiture order, means—

(a) if no appeal against either the forfeiture order or the conviction in respect of which it was made is lodged within the period prescribed for doing so—the expiration of that period; or
(b) if any such appeals are lodged—the time when all such appeals have lapsed or been finally determined.

(3) Subsection (1) shall have effect subject to sections
127 and 128.


126. (1) If the Attorney-General is unable to give effect to a forfeiture order, the Attorney-General shall take measures to recover—
(a) the value specified by the ICC as the value of the
property ordered by the ICC to be forfeited; or
(b) if the ICC has not specified the value of the
property, the value that, in the opinion of the
Attorney-General, is the value of the property
ordered by the ICC to be forfeited.

(2) In a case to which subsection (1) applies, the
forfeiture order is to be treated as a fine ordered to paid
under the Penal Code for the equivalent amount and may
be enforced accordingly as if it were a fine imposed on the date the forfeiture order was registered under this Act.

127. (1) If a forfeiture order is registered under section 123, a person (other than a person convicted of an
offence in respect of which the order was made) who
claims an interest in any of the property to which the order relates may apply to the High Court for an order under section 128.

(2) A person on whom notice of the hearing of the
ICC held in connection with the making of the forfeiture
order was served, or who appeared at the hearing, may
not make an application under subsection (1) without the
leave of the High Court.

(3) The High Court shall not grant leave under
subsection (2) unless it is satisfied that—
(a) the applicant had good reason for failing to attend the hearing held by the ICC in connection with the making of the forfeiture order;
(b) evidence proposed to be adduced by the applicant in connection with the application under subsection (1) was not reasonably available to the applicant at the time of the hearing of the ICC; or
(c) there are special reasons justifying the grant of leave.

(4) An application under subsection (1) shall be made before the expiry of the period of two months beginning on the date on which the forfeiture order is registered in the High Court.
(5) Notwithstanding subsection (4), the High Court may grant a person leave to make an application under subsection (1) after the expiry of the period referred to in subsection (4) if it is satisfied that the person's failure to apply within that period was not owing to any neglect on the person's part.
(6) A person who makes an application under subsection (1) shall serve notice of the application on the Attorney-General, who shall be a party to any pro¬ceedings on the application.
(7) This section and section 128 shall have effect subject to any contrary provision in the Rome Statute or
the ICC Rules.

128. (1) This section shall apply if—
(a) a person applies to the High Court for an order under this section in respect of an interest in property; and
(b) the Court is satisfied that the applicant's claim is valid.

(2) The High Court shall make an order
(a) declaring the nature, extent, and value of the applicant's interest in the property; and
(b) either—

(i) directing that the interest be transferred to the applicant; or
(ii) declaring that payment be made to the applicant of an amount equal to the value of the interest declared by the Court.

(3) Notwithstanding subsection (2), the Court may, if it thinks fit, refuse to make an order under that subsection if it is satisfied that—
(a) the applicant was, in any respect, involved in the commission of the offence in respect of which the order was made; or
(b) although the applicant acquired the interest at the time of or after the commission of the offence, it was not acquired in good faith and for value.

129. (1) If a forfeiture order has been registered under section 123, the Attorney-General may apply to the High Court for cancellation of the registration.
(2) Without limiting the generality of subsection (1), the Attorney-General may act under that subsection in relation to a forfeiture order if—

(a) the order has, since its registration in Kenya, ceased to have effect;
(b) the order was registered in contravention of section 121;
(c) the Attorney-General considers that cancellation is appropriate having regard to the arrangements in force with the ICC in relation to the enforcement of orders of that kind; or
(d) the ICC so requests.
(3) If, in accordance with subsection (1), the Attorney-General applies to the High Court for cancellation of the registration of a forfeiture order, the Court shall cancel the registration accordingly.

(4) If a forfeiture order registered under section 123 is discharged (in whole or in part) or is revoked, that discharge or revocation constitutes a ground for an application for cancellation of the order under this section.