CHAPTER FOUR –– THE BILL OF RIGHTS

Part 2—Rights and fundamental freedoms

51. Rights of persons detained, held in custody or imprisoned.

(3) Parliament shall enact legislation that––

(a) provides for the humane treatment of persons detained, held in custody or imprisoned ; and
(b) takes into account the relevant international human rights instruments.

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

333. Warrant in case of sentence of imprisonment
(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.
(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

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 VII—PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Enforcement of Sentences in Kenya

134.

(5) Any advice given under subsection (4) does not affect the enforcement of sentences for which the Minister has accepted the designation of the ICC under section 135 (1) (c).

PART VII—PERSONS IN TRANSIT TO ICC OR SERVING SENTENCES IMPOSED BY ICC

Enforcement of Sentences in Kenya

134. (1) The Minister may advise the ICC that Kenya is willing to allow persons who are ICC prisoners as a result of being sentenced to imprisonment by the ICC to serve those sentences in Kenya, subject to any specified conditions.

(2) If advice is given under subsection (1), the Minister may, at any time, advise the ICC—
(a) of further conditions that Kenya wishes to impose in relation to the serving of sentences in Kenya by ICC prisoners; or
(b) that it wishes to withdraw a condition referred to in subsection (1) or paragraph (a).

(3) Before providing advice under subsection (1) or subsection (2), the Minister shall consult with—
(a) the Commissioner of Police;
(b) the permanent secretary in the Ministry respon¬sible for prisons; and
(c) the permanent secretary in the Ministry respon¬sible for labour.

(4) If advice is given under subsection (1), the Minister may, at any time, advise the ICC that Kenya is no longer willing to allow ICC prisoners to serve their sentences in Kenya.

(5) Any advice given under subsection (4) does not affect the enforcement of sentences for which the Minister has accepted the designation of the ICC under section 135 (1) (c).

135. (1) This section and sections 136 to 151 shall apply if—
(a) the Minister has given advice under section 134 (1) and has not withdrawn that advice under section 134(4);
(b) the ICC imposes a sentence of imprisonment on a person—

(i) convicted of an international crime; or
(ii) convicted of an offence against the admin¬istration of justice; and
(c) the ICC designates Kenya, under article 103 of the Rome Statute, as the State in which the sentence is to be served.

(2) If the Minister accepts the designation, the Minister shall issue an order for detention in the prescribed form, and forward that order and any information about the person supplied by the ICC to each of the following persons—

(a) the Commissioner of Police;
(b) the permanent secretary in the Ministry respon¬sible for prisons; and
(c) the permanent secretary in the Ministry respon¬sible for labour.
(3) The Minister may, at any time, ask the ICC to give one or more of the following assurances—

(a) that all or part of the transportation costs incurred by Kenya in the enforcement of the sentence will
be met by the ICC;
(b) that the ICC will arrange for the transportation of the ICC prisoner who is the subject of the designation—

(i) to Kenya, for the purpose of enabling his sentence to be enforced in Kenya; or
(ii) from Kenya, on the completion of the sentence, or if the ICC prisoner is to be transferred to another country;
(c) an assurance relating to such other matters as the Minister thinks appropriate.

136. (1) If the Minister accepts the designation of Kenya as the State in which a sentence of imprisonmentimposed by the ICC is to be served, the ICC prisoner may be transported to Kenya in the custody of—
(a) a member of the police force;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.

(2) On arrival in Kenya or, if the person is already in
Kenya when the sentence is imposed, on the imposition of
the sentence, the ICC prisoner shall be detained in
accordance with the Prisons Act as if the prisoner had
been sentenced to imprisonment under Kenyan law.

(3) Notwithstanding subsection (2) and any other enactment—
(a) the ICC prisoner has the right to communicate on a confidential basis with the ICC, without impediment from any person; and
(b) a Judge of the ICC or a member of the staff of the ICC may visit the ICC prisoner for the purpose of hearing any representations by the prisoner without the presence of any other person, except any representative of the prisoner;

137. The order for detention issued by the Ministerunder section 135 (2) shall, for the purposes of this Part and the Prisons Act, be sufficient authority for the detention of the prisoner to which the notice relates—
(a) until the ICC prisoner completes, or is released from, the sentence or is transferred to another country; and
(b) during any further period that the ICC prisoner is required to serve the sentence if the ICC makes an order for recall of the prisoner.

138. (1) The administration of a sentence of imprisonment imposed by the ICC that is served in Kenya, including any decision to release or transfer the ICC prisoner, shall be undertaken in accordance with Part 10 of the Rome Statute and the ICC Rules.
(2) If, in relation to the administration of a sentence of
imprisonment that is served in Kenya by an ICC prisoner,
there is any inconsistency between the provisions of the
Penal Code or the Prisons Act and the provisions of the
Rome Statute and the ICC Rules, the provisions of that
Statute and those Rules shall prevail.

139. (1) where the ICC, under article 110ofthe Rome Statute, decides to review the sentence of an ICC prisoner who is serving that sentence in Kenya, the Minister shall direct that the prisoner be transferred to the ICC for the purposes of enabling the ICC to review the prisoner's sentence if the Minister is satisfied that—
(a) the prisoner is entitled to appear before the ICC at the review of the prisoner's sentence;
(b) the ICC has requested the prisoner to appear before it at the review; or
(c) the interests of justice require the prisoner's attendance at the ICC.

(2) If the Minister gives a direction under subsection (1), the Minister shall forward a notice of the direction to each of the following persons—
(a) the Commissioner of Police;
(b) the permanent secretary in the Ministry respon¬sible for prisons; and
(c) the permanent secretary in the Ministry respon¬sible for labour.

(3) On the giving of a direction under subsection (1), the prisoner may be transported to the ICC and, if necessary, from the ICC in the custody of—
(a) a member of the police force; or
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.


140. (1) This section shall apply if the ICC—
(a) directs that an ICC prisoner appear before it to
give evidence in another case; or
(b) requests that an ICC prisoner appear before it for any other reason.
(2) The Minister—

(a) if subsection (1) (a) applies, shall direct that the ICC prisoner be transferred to the ICC; or
(b) if subsection (1) (b) applies, may direct that the ICC prisoner be transferred to the ICC if the Minister is satisfied that the interests of justice require the prisoner's attendance at the ICC.
(3) If the Minister gives a direction under subsection (2), section 139 (2) and (3) shall apply, with any neces¬sary modifications.
(4) This section shall not apply if the request by the ICC is a request to which section 90 (1) applies.

141. If an ICC prisoner of any nationality is to be to transferred from Kenya to another State to complete that sentence, the prisoner may be transported from Kenya to that State in the custody of—
(a) a member of the police force;
(b) a prison officer; or
(c) a person authorised for the purpose by the ICC.

142. (1) If an ICC prisoner is to complete his sentence in Kenya or to be released at the direction of the ICC while in Kenya and the prisoner is not a Kenyan citizen, the Minister shall, before the date of completion or release, either—
(a) make a removal order under section 148; or
(b) issue a certificate under section 145 giving the prisoner temporary authority to remain in Kenya.

(2) The Minister shall not issue the certificate referred to in subsection (1) (b) unless the Minister is satisfied
that—
(a) because of the special circumstances of the ICC prisoner, it would be inappropriate to make a removal order; or
(b) it is desirable to issue a certificate under section 145 in order to facilitate the processing of a request for extradition of the ICC prisoner, or the investigation of an offence, or to enable the prisoner to serve another sentence in Kenya, or for any other reason in the interests of justice.

(3) This section shall have effect subject to section
143.


143. (1) An ICC prisoner serving a sentence in Kenya may—
(a) be extradited to another country in accordance with the Extradition (Commonwealth Countries) Act or the Extradition (Contiguous and Foreign Countries) Act, either—
(i) at the completion of the sentence; or
(ii) during the sentence, but only for a temporary
period;
(b) be required to remain in Kenya in order to serve any sentence that the prisoner is liable to serve under Kenyan law; or
(c) be required to remain in Kenya to undergo trial for an offence under Kenyan law.

(2) Notwithstanding subsection (1)—
(a) a person to whom subsection (1) (a) applies may not be extradited to another country without the prior agreement of the ICC;
(b) a person to whom subsection (1) (b) or subsection (1) (c) applies may not be required to serve a sentence in Kenya or to undergo trial for an offence under Kenyan law, as the case may be, that relates to an act or omission that occurred before the designation referred to in section 135 (1) (c), without the prior agreement of the ICC.
(3) Subsection (2) shall not apply to a person who—
(a) remains voluntarily in Kenya for more than thirty days after the date of completion of, or release from, the sentence imposed by the ICC; or
(b) voluntarily returns to Kenya after having left it.