PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

SEARCH WARRANTS

118. Power to issue search warrant
Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.

118A. Ex-parte application for search warrant
An application for a search warrant under section 118 shall be made ex-parte to a magistrate.

119. Execution of search warrants
A search warrant may be issued on any day (including Sunday), and may be executed on any day (including Sunday) between the hours of sunrise and sunset, but the court may, by the warrant authorize the police officer or other person to whom it is addressed to execute it at any hour.

120. Persons in charge of closed place to allow ingress and egress
(1) Whenever a building or other place liable to search is closed, a person residing in or being in charge of the building or place shall, on demand of the police officer or other person executing the search warrant and on production of the warrant, allow him free ingress thereto and egress therefrom and afford all reasonable facilities for a search therein.
(2) If ingress into or egress from the building or other place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 22 or section 23.
(3) Where a person in or about the building or place is reasonably suspected of concealing about his person an article for which search should be made, that person may be searched.
(4) If that person is a woman the provisions of section 27 shall be observed.

121. Detention of property seized
(1) When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.
(2) If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.
(3) If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise.

122. Provisions applicable to search warrants
The provisions of subsections (1) and (3) of section 102, and sections 104, 106, 109, 110 and 111, shall, so far as may be, apply to search warrants issued under section 118.

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

Finding Persons or Things, and Obtaining Evidence

76. (1) where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (a) of article 93 of the Rome Statute in locating, or identifying and locating, a person or a thing believed to
be in Kenya, the Attorney-General 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 to whom or thing to which the request relates is or may be in Kenya.

(2) If the Attorney-General gives authority for the request to proceed—
(a) the Attorney-General shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to locate or, as the case may be, identify and locate the person to whom or thing to which the request relates; and
(ii) advise the Attorney-General of the outcome of those endeavours.


77. (1) This section shall apply if the ICC requests, under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (b) of article 93 of the Rome Statute, that—
(a) evidence be taken in Kenya; or
(b) documents or other articles in Kenya be produced.

(2) The Attorney-General shall give authority for the request to proceed if the Attorney-General is satisfied that—
(a) the request relates to an investigation being conducted by the Prosecutor or to any proceed¬ings before the ICC; and
(b) there are reasonable grounds for believing that the evidence can be taken or, as the case may be, the documents or other articles can be produced in Kenya.

78. (1) If the Attorney-General gives authority for a request relating to the taking of evidence to proceed, the statement of each witness shall be taken in writing on the oath or affirmation of that witness by a Judge of the High Court.

(2) The Judge who takes evidence under subsection (1) shall—
(a) certify that the evidence was taken by the Judge; and
(b) ensure that the evidence, as certified, is sent to the Attorney-General.


79. (1) If the Attorney-General gives authority for a request relating to the production of documents or other articles to proceed, a Judge of the High Court may make an order requiring their production.

(2) If the documents or other articles are produced, the

Judge shall send them to the Attorney-General together with a written statement certifying that they were pro¬duced to the Judge.

(3) Notwithstanding subsection (2), in the case of documents that are produced, the Judge may send to the Attorney-General copies of the documents certified by the Judge to be true copies instead of the originals.



80. (1) The applicable law with respect to compelling
. a person to appear before a Judge under section 78 or 79 and to give evidence or answer questions, or to produce documents or other articles, is the law specified in sub¬section (2), which law shall apply with any necessary modifications.
(2) For the purposes of subsection (1), the applicable law is the law of Kenya that applies to the giving of evidence or the answering of questions or the production of documents or other articles on the hearing of a charge against a person for an offence against the law of Kenya.
(3) Notwithstanding subsection (1), for the purposes of sections 78 and 79, the person to whom the inves¬tigation being conducted by the Prosecutor, or the proceedings before the ICC, relates is competent but not compellable to give evidence.
(4) Notwithstanding subsection (1), a person who is required under section 78 or 79 to give evidence, or to produce documents or other articles, is not required to give any evidence, or to produce any document or article, that the person could not be compelled to give or produce in the investigation being conducted by the Prosecutor or the proceedings before the ICC.
(5) A person who is required under section 78 or 79 to give evidence or to produce documents or other articles—
(a) has the same privileges in relation to the answering of questions and the production of documents or articles as if the investigation were

being conducted in Kenya or the proceedings were pending in a Kenyan court, as the case may be; and
(b) shall be given a copy of any statement required to be given to a witness under the ICC Rules in the manner and form required by those Rules.

(6) Subsections (4) and (5) shall have effect subject to section 27 and any contrary provision in the Rome Statute
or the ICC Rules.



81. (1) In this section, "evidence certificate" means a certificate or declaration that—
(a) is given or made by or on behalf of the ICC; and
(b) specifies or declares whether, under the Rome Statute or the ICC Rules, a specified person or class of persons could or could not be required to answer a specified question or to produce a specified document—
(i) generally;
(ii) in specified proceedings; or
(iii) in specified circumstances.

(2) An evidence certificate authenticated under subsection (3) is admissible in proceedings for the pur¬poses of the application of section 80 (4) as prima facie evidence of the matters stated in the certificate.
(3) A certificate is authenticated for the purposes of subsection (2) if it purports to be—

(a) signed or certified by a Judge, the Registrar, the Deputy Registrar, or a member of the staff of the
ICC; or
(b) authenticated in any other manner authorised by the Rome Statute or the ICC Rules.







82. (1) The following persons may appear and be legally represented at a hearing held under section 78 or 79—
(a) the person to whom the proceedings before the ICC or the investigation conducted by the Prosecutor relates;
(b) any other person giving evidence or producing documents or other articles at the hearing;
(c) a representative of the Prosecutor or ICC.

(2) This section shall have effect subject to any contrary provision of the Rome Statute or the ICC Rules.
(3) A certificate by a Judge under section 78 (2) or section 79 (2) shall state whether any of the persons specified in subsection (1) were present when the evidence was taken or the documents or other articles were produced.

83. (1) The Chief Justice may authorise the Registrar of the High Court to exercise the powers of a Judge under section 78 or 79 in respect of any particular case.
(2) An authorisation given under subsection (1) may be revoked at any time by the Chief Justice
(3) If a matter in respect of which the Registrar has jurisdiction under an authorisation given under subsection (1) appears to the Registrar to be one of special difficulty, the Registrar may refer the matter to a Judge, who may—

(a) dispose of the matter; or
(b) refer it back to the Registrar with such directions as the Judge thinks fit.
(4) Nothing in this section prevents the exercise by any Judge of any jurisdiction or powers conferred on any Registrar under this section.

Questioning persons

.

84. (1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (c) of article 93 of the Rome Statute in


questioning a person who is being investigated or prosecuted, the Attorney-General may 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 is or may be in Kenya.

(2) If the Attorney-General gives authority to proceed—
(a) he shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—

(i) use its best endeavours to undertake the questioning that the ICC has requested;
(ii) ensure that the answers to the questions put are recorded in writing and make any other report on the questioning as it considers to be appropriate in the circumstances; and
(iii) advise the Attorney-General of the outcome of those endeavours and, if relevant, deliver to him the record and any report of the quest¬ioning.

8 5. (1) Where there are grounds to believe that a person who is to be questioned by a Kenyan agency following a request under paragraph 1 (c) of article 91 the Rome Statute has committed a crime within the jurisdiction of the ICC, the person—
(a) shall not be compelled to incriminate himself or herself or to confess guilt;
(b) shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness;
and
(d) shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in the Rome Statute; and
(e) shall be informed, before being questioned, that there are grounds to believe that he has committed a crime within the jurisdiction of the ICC and that he has the right—

(i) to remain silent, without such silence being a consideration in the determination of his guilt or innocence;
(ii) to have legal assistance of his choosing, or, if he does not have legal assistance, to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; and
(iii) to be questioned in the presence of a lawyer unless he voluntarily waives the right to counsel.

(3) If there is any inconsistency between subsection (2) and any other written law, subsection (2) shall prevail to the extent of the inconsistency.
(4) If the person seeks to have legal assistance assigned under subsection (2) (e) (ii), the Attorney-General shall cause such assistance to be provided.
(5) This section does not give any person a power to require another person to answer questions.

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.

87. (1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, paragraph 7 of article 58, article 64 or paragraph 1 (e) of article 93 of the Rome Statute in facilitating the voluntary appearance of a witness before the ICC, the Attorney-General may 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 witness's attendance is sought so that the witness can give evidence or information relating to the investigation or proceedings; and
(c) the witness is or may be in Kenya.

(2) In this section and sections 88 and 89, "witness" includes a person who may give expert evidence, but does not include a person who has been accused of an international crime in the proceedings to which the request related

88. (1) If the Attorney-General gives authority for the request to facilitate the voluntary appearance of a witness to proceed, he shall forward the request to the appropriate agency.
(2) The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries as may be necessary to ascertain if the prospective witness consents to giving evidence or assisting the ICC.

(3) The Attorney-General may, at any time, ask the ICC to give one or more of the following assurances—
(a) that the witness will not be prosecuted, detained, or subjected to any restriction of personal freedom by the ICC in respect of all or any specified acts or omissions that occurred before the person's departure from Kenya;
(b) that the witness will be returned to Kenya as soon as practicable in accordance with arrangements agreed to by the Attorney-General;
(c) an assurance relating to such other matters as the Attorney-General thinks appropriate.

89. (1) The Attorney-General shall assist in the

making of arrangements to facilitate a witness’s
attendance before the ICC if he is satisfied that—

(a) the prospective witness has consented to giving
the evidence or assistance requested; and
(b) the ICC has given adequate assurances where
Appropriate.


(2) The Attorney-General shall —
(a) approve and arrange the travel of the witness to
the ICC;
(b) obtain such approvals, authorities, and permissions as are required for that purpose, including, in the case of a person who although not liable to be detained in a prison is subject to a sentence—

(i) the variation, discharge, or suspension of the conditions of the person's release from prison; or
(ii) the variation or suspension of the person's sentence, or of the conditions of the person's sentence; and
(c) take such other action for the purposes of subsection (1) as he thinks appropriate.





Temporary Transfer of Prisoners

90. Where the ICC requests assistance under paragraph 1 (f) of article 93 of the Rome Statute in facilitating the temporary transfer to the ICC of a Kenyan prisoner, the Attorney-General 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 prisoner's attendance is sought for the purposes of identification or for obtaining evidence or other assistance.

91. (1) If the Attorney-General gives authority for the request to facilitate the temporary transfer of a Kenyan prisoner to proceed, he shall forward the request to the appropriate Kenyan agency.

(2) The Kenyan agency to which a request is forwarded under subsection (1) shall make such inquiries as may be necessary to ascertain if the prisoner will consent to the transfer.

(3) The Attorney-General may ask the ICC to give one or more of the following assurances—
(a) that the prisoner will not be released from custody without the prior approval of the Attorney-General;
(b) that the prisoner will be returned to Kenya without delay in accordance with arrangements agreed to by the Attorney-General;
(c) assurances relating to such other matters as he thinks appropriate.

92. (1) The Attorney-General may authorise the temporary transfer of a Kenyan prisoner to the ICC if he satisfied that—
(a) the prisoner has consented to giving the evidence or assistance requested; and
(b) the ICC has given adequate assurances where appropriate.

(2) If the Attorney-General authorises the temporary transfer of the prisoner to the ICC, he may—
(a) direct that the prisoner be released from the prison in which that person is detained, for the purpose of the transfer to the ICC; and
(b) make arrangements for the prisoner to travel to the ICC in the custody of—
(i) a member of the police force;
(ii) a prison officer; or
(iii) a person authorised for the purpose by the ICC.

(3)A direction given by the Attorney-General under
subsection (2) in respect of a prisoner is sufficient
authority for the release of the prisoner from the
prison in which the prisoner is detained, for the
purposes of the direction.

(4) Every person released under a direction given
under subsection (2) is to be treated, for the
purposes of sections 122, 123 and 124 of the Penal
Code, (which relate to rescue or escape from lawful
custody), as continuing to be in lawful custody
while in Kenya during the period of that release.


93. (1) If a prisoner who is charged with or
convicted of an offence against the law of Kenya is
transferred to the ICC under section 92, the
provisions of section 94 shall apply to any period
that the person spends in custody outside Kenya in
connection with the request before sentence is
imposed for the Kenyan offence.

(2) If a prisoner who is serving a sentence for a
Kenyan offence is transferred to the ICC under
section 92—

(a) the prisoner is to be treated, while in custody
outside Kenya in connection with the request, as
being in custody for the purposes of the Kenyan
sentence, which shall continue to run; and

(b)the Attorney-General—

(i) may at any time notify the ICC that the
prisoner is no longer required to be kept in
custody; and

(ii) shall notify the ICC if the prisoner is no
longer liable to be detained in a Kenyan
prison.


94. (1) If a prisoner who is charged with or convicted of an offence against the law of Kenya (in this section referred to as “the Kenyan offence”) is transferred to the ICC under section 92 before sentence is imposed for the Kenyan offence, the Attorney-General may -

(a) advise the ICC of the date on which the prisoner was sentenced for the Kenyan offence; and

(b) request the ICC to provide a certificate recording the total period during which the prisoner was detained outside Kenya in connection with the request until sentence was imposed for the Kenyan offence.
(2) A certificate obtained under subsection (1) shall be presumed to be accurate in the absence of any evidence to the contrary.
(3) The Attorney-General may issue a certificate setting out the date and period specified in subsection (1) if—

(a) the ICC does not provide a certificate within a reasonable time after the Attorney-General makes a request under subsection (1); and
(b) the Attorney-General is satisfied on such infor¬mation that he has that an accurate calculation can be made of the period referred to in paragraph (b) of subsection (1).

Evidence

95. (1) Where the ICC requests assistance under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (g) of article 93 of the Rome Statute in examining places or sites in Kenya, the Attorney-General shall give authority for the request to proceed if he is satisfied that the request relates to an investigation being conducted by the Prosecutor or any proceedings before the ICC.

(2) If the Attorney-General gives authority for the request to proceed—
(a) he shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to undertake the examination of the place or site in the manner that the ICC has requested;
(ii) make such report on the examination as it considers to be appropriate in the circumstances; and
(iii) deliver the report of the examination to the Attorney-General.

(3) This section does not confer on any person a power to enter a place or site.

96. (1) Where the ICC makes a request under paragraph 8 of article 19, article 56, article 64 or paragraph 1 (h) of article 93 of the Rome Statute for search and seizure, the Attorney-General shall give authority for therequest 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) any thing relevant to the investigation or proceedings is or may be located in Kenya.

(2) If the Attorney-General gives authority for the request to proceed, he may authorise a member of the police force, in writing, to apply to a Judge of the High Court for a search warrant under section 97.

97. (1) Where a Judge of the High Court, on an application in writing made on oath or affirmation by a member of the police force, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing—
(a) any thing on or in respect of which an inter¬national crime has been, or is suspected of having been, committed; or
(b) any thing that may be evidence as to the commission of any such crime,
the Judge shall issue a warrant in respect of that thing.

(2) A Judge shall not issue a warrant under this section unless the application contains, or the applicant otherwise supplies to the Judge, such information as the
Judge requires concerning the grounds on which the warrant is sought.

(3) A Judge may issue a warrant under this section subject to such conditions as he thinks fit.

98. A warrant issued under section 97 shall—
(a) be in the prescribed form;
(b) be directed to a member of the police force by name, or to any class of members of the police specified in the warrant, or generally to every member of the police force; and
(c) specify any conditions that the Judge has imposed under section 97 (3).

99. (1) Subject to any conditions specified in the warrant under section 98, a warrant issued under section 97 authorises the member of the police force executing the warrant—
(a) to enter and search the place or thing specified in the warrant at any time by day or night during the currency of the warrant;
(b) to use such assistants as may be reasonable in the circumstances for the purpose of the entry and search;
(c) to use such force as is reasonable in the circum¬stances for the purposes of effecting entry, and for breaking open any thing in or on the place searched; and
(d) to search for and seize any thing referred to in section 97 (1).

(2) A person called on to assist any member of the police force executing a warrant issued under section 97 has the powers described in paragraphs (c) and (d) of sub¬section (1).



100. (1) A member of the police force may stop a vehicle (other than an aircraft which is airborne) for the purpose of exercising a search power conferred by a


warrant issued under section 97.

(2) A person who fails to stop a vehicle when required to do so by virtue of this section is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding sir months or to a fine, or both.

101. Every member of the police force executing any
(a) shall have that warrant with him;
(b) shall produce it on initial entry and, if requested, at any subsequent time; and
(c) shall, if requested at the time of the execution of the warrant or at any subsequent time, provide a copy of the warrant within seven days after the request is made.


102. (1) Every member of the police force who executes a warrant issued under section 97 shall, not later than seven days after the seizure of any thing under that warrant, give to the owner or occupier of the place or thing searched, and to every other person whom the member of the police force has reason to believe may have an interest in the thing seized, a written notice specifying—
(a) the date and time of the execution of the warrant;
(b) the identity of the person who executed the warrant; and
(c) the thing seized under the warrant.

(2) If the warrant is executed, a report on the execution of the warrant, together with a copy of any notice given under subsection (1) shall be sent to the Attorney-General, without delay.

(3) If the warrant is not able to be executed, a report explaining the reasons for this shall be sent to the Attorney-General without delay.

103. (1) If a member of the police force seizes a thing under a warrant issued under section 97, it shall be delivered into the custody and control of—
(a) the Commissioner of Police; or
(b) a commissioned officer of police designated by
the Commissioner to receive things seized under
this Act.
(2) The Commissioner of Police or designated officer shall—

(a) inform the Attorney-General, without delay, that the thing has been so delivered;
(b) retain the thing for a period not exceeding three months from the day on which the thing was seized, pending the Attorney-General's direction under subsection (3) about how to deal with it; and
(c) comply with any direction that the Attorney-General gives him.
(3) The Attorney-General may, by written notice, give the Commissioner of Police or the designated officer a direction—

(a) requiring the Commissioner or designated officer to send the thing to the ICC; or
(b) requiring the Commissioner or designated officer to deal with it in some other way.
(4) The Attorney-General shall direct the Commis¬sioner of Police or the designated officer to return the thing seized to the person from whose possession it was seized as soon as practicable, if—

(a) the ICC advises that the thing is not required for the Prosecutor's investigation or its proceedings; or
(b) no other direction is given by the Attorney-General before the expiry of three months from the day on which the thing was seized.

(5) Notwithstanding subsection (4), the Attorney-
General may refuse to return the thing to the person from whom it was seized if—
(a) the thing is the subject of a dispute as to who is entitled to it;
(b) the thing is required for the investigation of an offence within the jurisdiction of Kenya; or
(c) possession of the thing by the person would be unlawful in Kenya.

104. (1) Where the ICC makes a request underparagraph 1 (i) of article 93 of the Rome Statute for theprovision of records and documents, including official records and documents, the Attorney-General 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 document or record sought is or may be in
Kenya.

(2) If the Attorney-General gives authority for the request to proceed—
(a) he shall forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—

(i) use its best endeavours to locate and make available the document or record sought;
(ii) make such report on its endeavours as it considers to be appropriate in the circumstances; and
(iii) deliver the document or record, if located, to the Attorney-General.

(3) This section does not confer on any person power to require the production of a document or record.


105. (1) This section shall apply if the ICC requests— (a) assistance under paragraph 1 (j) of article 93 of the Rome Statute in protecting victims and witnesses or preserving evidence; or
the Rome Statute in protecting victims and witnesses or preserving evidence; or
(b) assistance under paragraph 8 of article 19, or paragraphs 2 or 3 of article 56, in preserving evidence.


(2) The Attorney-General 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 assistance sought is not prohibited by Kenyan law.

(3) If the Attorney-General gives authority for the request to proceed—
(a) he shall—

(i) take such steps as he thinks appropriate in the particular case; and
(ii) forward the request to the appropriate Kenyan agency; and
(b) that agency shall, without delay—

(i) use its best endeavours to give effect to the request;
(ii) make such report on its endeavours as it considers to be appropriate in the circum¬stances; and
(iii) deliver the report to the Attorney-General.

Identifying, Freezing or Seizing Property associated with International Crimes

106. Where the ICC requests assistance underparagraph 1 (k) of article 93 of the Rome Statute in identifying, tracing and freezing, or seizing, any property for the purpose of eventual forfeiture, the Attorney-
General shall give authority for the request to proceed if he is satisfied that—
(a) the request relates to an international crime that is being investigated by the Prosecutor, or which is the subject of proceedings before the ICC; and
(b) the property concerned is or may be located in
Kenya.

107. If the Attorney-General gives authority for the request for assistance in identifying, tracing and freezing,
or seizing, property to proceed, he may authorise the appropriate Kenyan authority to apply for one or more of the following orders or warrants—
(a) a search warrant in respect of property under Part B of the Second Schedule;
(b) a restraining order under Part C of the Second Schedule;
(c) a production order under Part D of the Second Schedule;
(d) a monitoring order under Part E of the Second Schedule.

Other Types of Assistance

108. (1) Where the ICC requests any other type of assistance under paragraph 1 (l) of article 93 of the Rome Statute for the purposes of facilitating the investigation and prosecution of crimes within the jurisdiction of the ICC, the Attorney-General 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 assistance sought is in accordance with Kenyan law.

(2) If the Attorney-General gives authority for the request to proceed—
(a) he shall—
(i) take such steps as the Attorney-General thinks
appropriate in the particular case; and
(ii) forward the request to the appropriate Kenyan
agency; and
(b) that agency shall, without delay—
(i) use its best endeavours to give effect to the request;
(ii) make such report on its endeavours as it considers to be appropriate in the circumstances; and
(iii) deliver the report to the Attorney-General.

(3) If the Attorney-General considers that the assistance sought cannot lawfully be provided, he shall, before refusing the request, and in accordance with paragraph 5 of article 93 of the Rome Statute—
(a) consult with the ICC; and
(b) consider whether the assistance can be provided subject to conditions or whether it can be provided at a later date or in an alternative
manner.

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.