PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

PROCESSES TO COMPEL THE APPEARANCE OF ACCUSED PERSONS

Warrant of Arrest

100. Warrant after issue of summons
Notwithstanding the issue of a summons, a warrant may be issued at any time before or after the time appointed in the summons for the appearance of the accused.

101. Warrant on disobedience of summons
If the accused does not appear at the time and place appointed in and by the summons, and his personal attendance has not been dispensed with under section 99, the court may issue a warrant to apprehend him and cause him to be brought before it; but no warrant shall be issued unless a complaint has been made upon oath.

102. Form, contents and duration of warrant
(1) Every warrant of arrest shall be under the hand of the judge or magistrate issuing it and shall bear the seal of the court.
(2) Every warrant shall state shortly the offence with which the person against whom it is issued is charged, and shall name or otherwise describe that person, and shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant, or before some other court having jurisdiction in the case, to answer to the charge therein mentioned and to be further dealt with according to law.
(3) A warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.

103. Court may direct security to be taken
(1) A court issuing a warrant for the arrest of a person in respect of an offence other than murder, treason or rape may direct by endorsement on the warrant that, if the person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take the security and shall release the person from custody.
(2) The endorsement shall state—
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and
(c) the time at which he is to attend before the court.
(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the court.

104. Warrants, to whom directed
(1) A warrant of arrest may be directed to one or more police officers, or to one police officer and to all other police officers of the area within which the court has jurisdiction, or generally to all police officers of the area:
Provided that a court issuing a warrant may, if its immediate execution is necessary, and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.
(2) When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.

105. Warrants may be directed to landholders, etc.
(1) A magistrate empowered to hold a subordinate court of the first class may direct a warrant to a landholder, farmer or manager of land within the local limits of his jurisdiction for the arrest of an escaped convict or person who has been accused of a cognizable offence and has eluded pursuit.
(2) The landholder, farmer or manager shall acknowledge in writing the receipt of the warrant and shall execute it if the person for whose arrest it was issued is in or enters on his land or farm or the land under his charge.
(3) When the person against whom the warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a magistrate having jurisdiction, unless security is taken under section 103.

106. Execution of warrant directed to police officer
A warrant directed to a police officer may also be executed by another police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

107. Notification of substance of warrant
The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

108. Person arrested to be brought before court without delay
The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 103 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce that person.

109. Where warrant may be executed
A warrant of arrest may be executed at any place in Kenya.

110. Forwarding of warrants for execution outside jurisdiction
(1) When a warrant of arrest is to be executed outside the local limits of the jurisdiction of the court issuing it, the court may, instead of directing the warrant to a police officer, forward it by post or otherwise to a magistrate within the local limits of whose jurisdiction it is to be executed.
(2) The magistrate to whom a warrant is so forwarded shall endorse his name thereon, and, if practicable, cause it to be executed in the manner hereinbefore provided within the local limits of his jurisdiction.

111. Warrant directed to police officer for execution outside jurisdiction
(1) When a warrant of arrest directed to a police officer is to be executed outside the local limits of the jurisdiction of the court issuing it, he shall take it for endorsement to a magistrate within the local limits of whose jurisdiction it is to be executed.
(2) The magistrate shall endorse his name thereon, and the endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute it within those limits, and the local police officers shall, if so required, assist that officer in executing the warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the magistrate within the local limits of whose jurisdiction the warrant is to be executed will prevent its execution, the police officer to whom it is directed may execute it without endorsement in any place outside the local limits of the jurisdiction of the court which issued it.

112. Procedure on arrest of person outside jurisdiction
(1) When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by which it was issued, the person arrested shall, unless the court which issued the warrant is within twenty miles of the place of arrest, or is nearer than the magistrate within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 103, be taken before the magistrate within the local limits of whose jurisdiction the arrest was made.
(2) The magistrate shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to that court:
Provided that if the person has been arrested for an offence other than murder, treason or rape, and he is ready and willing to give bail to the satisfaction of the magistrate, or if a direction has been endorsed under section 103 on the warrant and the person is ready and willing to give the security required by the direction, the magistrate shall take the bail or security, as the case may be, and shall forward the bond to the court which issued the warrant.
(3) Nothing in this section shall prevent a police officer from taking security under section 103.

113. Irregularities in warrant
An irregularity or defect in the substance or form of a warrant, and any variance between it and the written complaint or information, or between either and the evidence produced on the part of the prosecution at a trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case, but, if a variance appears to the court to be such that the accused has been thereby deceived or misled, the court may, at the request of the accused, adjourn the hearing of the case to some future date, and in the meantime remand the accused or admit him to bail.

Miscellaneous Provisions regarding Processes

114. Power to take bond for appearance
Where a person for whose appearance or arrest the officer presiding in a court is empowered to issue a summons or warrant is present in court, the officer may require the person to execute a bond, with or without sureties, for his appearance in that court.

115. Arrest for breach of bond
When a person who is bound by a bond taken under this Code to appear before a court does not so appear, the officer presiding may issue a warrant directing that the person be arrested and produced before him.

116. Power of court to order prisoner to be brought before it
(1) Where a person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in prison within the local limits of the jurisdiction of that court, the court may issue an order to the officer in charge of the prison requiring him to bring the prisoner in proper custody, at a time to be named in the order, before the court.
(2) The officer so in charge, on receipt of the order, shall provide for the safe custody of the prisoner during his absence from the prison.

117. Provisions of this Part generally applicable to summonses and warrants
The provisions of this Part relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.

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—
(a) in the case of a request for surrender— in the manner provided in Parts III and IV, which Parts shall apply with any necessary modifications and subject to any contrary 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—

(a) Part 9 of the Rome Statute, in relation to—

(i) the provisional arrest, the arrest, and the surrender to the ICC of a person in relation to whom the ICC has issued an arrest warrant or given a judgment of conviction

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

28. (1) This Part shall apply to a request made by theICC under paragraph 1 of article 89 of the Rome Statutefor the arrest and surrender from Kenya of—
(a) a person in respect of whom the Pre-Trial Chamber has issued a warrant of arrest under article 58 or article 60 of the Rome Statute for an international crime; or
(b) a person who has been convicted by the ICC of an international crime.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

28.

(3) The provisions of this Part applying in respect of—
(a) arrest where a request for surrender is received (sections 29 to 31);
(b) provisional arrest in urgent cases (sections 32 to 34);
(c) remand and bail (sections 35 to 38);
(d) eligibility for surrender (sections 39 to 42); and
(e) surrender and temporary surrender (sections 43 to 50),
shall have effect subject to sections 51 to 62 (which prescribe restrictions on surrender and the execution of a request for surrender).

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

52. (1) The Minister may postpone the execution of a request for surrender under this Part at any time before the person sought is surrendered if, and only if -

(a) a ruling on admissibility of the kind specified in section 53 (1) or section 55 (1) or section 56 is pending before the ICC;

(b) the request would interfere with an investigation or prosecution for a different offence against Kenyan law, as provided in section 54; or

(c) a request of the kind referred to in section 62 (1) (c) is made to the ICC.

(2) Even if a case is one to which subsection (1) applies, the Minister may decide not to postpone the execution of the request; and, in that event, the Minister may take such steps under this Part as may be appropriate in the circumstances, including making a surrender order with immediate effect under section 43 or with effect at a later date under section 44 or a temporary surrender order under section 45.

(3) If the Minister postpones the execution of the request, the postponement may be for a reasonable time and may, if the Minister considers it desirable, be extended from time to time.
(4) A decision by the Minister to postpone the execution of a request—

(a) does not limit or affect—

(i) the High Court's ability to accept notification of consent to the surrender;
(ii) the ability to continue to detain a person under any warrant issued under this Part; and
(b) does not affect the validity of any act that has been done or any warrant or order made under this Part before the decision was made.
(5) If no decision on the execution of the request for surrender is made within six months after the date of the Minister's decision to postpone the execution of the request, the person may apply to a Judge of the High Court to be discharged.
(6) If an application to be discharged is made under subsection (5), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge—

(a) discharge any order made under this Act; and
(b) order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender

54. (1) Where the ICC makes a request for surrender that would interfere with any investigation or proceedings in Kenya involving different conduct, the Minister may, after consultation with the ICC—

(a) proceed with the execution of the request in accordance with section 52 (2), despite the Kenyan investigation or proceedings;

PART IV—ARREST AND SURRENDER OF PERSONS TO ICC

Restrictions on Surrender


62. (1) Where—
(a) the ICC makes a request for surrender;
(b) the ICC has not previously made a final deter¬mination on whether or not article 98 of the Rome Statute applies to that request; and
(c) a request is made to the ICC to determine whether or not article 98 of the Rome Statute applies to the request for surrender,
the Minister may postpone the request for surrender until the ICC advises whether or not it intends to proceed with the request for surrender.
(2) If the ICC advises that it does not intend to proceed with the request, surrender shall be refused.
(3) If the ICC advises that it intends to proceed with the request for surrender, and there is no other ground for refusing or postponing the request, the request shall continue to be dealt with under this Part.

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 .