Point in Time
Act No: No. 4 of 1994
Act Title: NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (CONTROL)
[ Date of commencement: 26th August, 1994. ]
[ Date of assent: 8th July, 1994. ]
Arrangement of Sections
PART I –PRELIMINARY
1.
Short title

This Act may be cited as the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994.

PART II – PROHIBITION OF POSSESSION OF, AND TRAFFICKING IN, NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES AND CULTIVATION OF CERTAIN PLANTS
3.
Penalty for possession of narcotic drugs, etc.
(1)

Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.

(2)

A person guilty of an offence under subsection (1) shall be liable—

(a)

in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment for ten years and in every other case to imprisonment for twenty years; and

(b)

in respect of a narcotic drug or psychotropic substance, other than cannabis, where the person satisfies the court that the narcotic drug or psychotropic substance was intended solely for his own consumption, to imprisonment for twenty years and in every other case to a fine of not less than one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, or to imprisonment for life or to both such fine and imprisonment.

(3)

Subsection (1) shall not apply to—

(a)

a person who has possession of the narcotic drug or psychotropic substance under a licence issued pursuant to section 16 permitting him to have possession of the narcotic drug or psychotropic substance; or

(b)

a medical practitioner, dentist, veterinary surgeon or registered pharmacist who is in possession of a narcotic drug or psychotropic substance for any medical purposes; or

(c)

a person who possesses the narcotic drug or psychotropic substance for medical purposes from, or pursuant to a prescription of, a medical practitioner, dentist or veterinary surgeon; or

(d)

a person authorized under the regulations to be in possession of the narcotic drug or psychotropic substance.

4.
Penalty for trafficking in narcotic drugs, etc.

Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—

(a)

in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life; or

(b)

in respect of any substance, other than a narcotic drug or psychotropic substance, which he represents or holds out to be a narcotic drug or psychotropic substance to a fine of five hundred thousand shillings, and, in addition, to imprisonment for a term not exceeding twenty years.

5.
Penalty for other acts connected to narcotic drugs, etc.
(1)

Subject to this Act, any person who—

(a)

smokes, inhales, sniffs or otherwise uses any narcotic drug or psychotropic substance; or

(b)

without lawful and reasonable excuse, is found in any house, room or place to which persons resort for the purpose of smoking, inhaling, sniffing or otherwise using any narcotic drug or psychotropic substance; or

(c)

being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of—

(i) the preparation of opium for smoking or sale, or the smoking, inhaling, sniffing or otherwise using any narcotic drug or psychotropic substance; or
(ii) the manufacture, production, sale or distribution of any narcotic drug or psychotropic substance in contravention of this Act; or
(d)

has in his possession any pipe or other utensil for use in connection with the smoking, inhaling or sniffing or otherwise using of opium, cannabis, heroin or cocaine or any utensil used in connection with the preparation of opium or any other narcotic drug or psychotropic substance for smoking,

shall be guilty of an offence and liable to a fine of two hundred and fifty thousand shillings or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment.

(2)

Any person who, knowing or having reason to believe that a parcel, package, container or other thing contains any narcotic drug or psychotropic substance, handles the parcel, package, container or other thing, shall, except where such handling is by a public officer in the course of his official duties or a registered pharmacist, be guilty of an offence and liable to a fine of one hundred thousand shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

(3)

Any person who commits any offence referred to in subsection (2) in relation to any narcotic drug or psychotropic substance with a view to aiding, abetting or procuring the trafficking in the narcotic drug or psychotropic substance shall be liable to the penalty prescribed by section 4.

6.
Penalty for cultivation of certain plants

Any person who—

(a)

cultivates any prohibited plant; or

(b)

being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of the cultivation, gathering or production of any prohibited plant,

shall be guilty of an offence and liable to a fine of two hundred and fifty thousand shillings or three times the market value of the prohibited plant, whichever is the greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment.

7.
Forfeiture of land used for cultivation of prohibited plants
(1)

Where a person is convicted of an offence under section 6 with reference to the cultivation of the prohibited plant on any land, not being Government land, and that person was at the time of the commission of the offence—

(a)

the owner of the land on which the prohibited plant was cultivated; or

(b)

the holder of a lease, licence, permit or any other similar right in the land and he has carried on the cultivation of the prohibited plant with the consent, co-operation or assistance of the owner of the land,

then, the court convicting him shall, in addition to the penalty provided for that offence in section 6, order the land to be forfeited to the Government.

(2)

Where a person is convicted of any offence under section 6 with reference to the cultivation of any prohibited plant on any land, not being Government land, and—

(a)

such person was, at the time of the commission of the offence, the holder of a lease, licence, permit or any other similar right in the land on which the prohibited plant was cultivated; and

(b)

the cultivation of the prohibited plant was carried on without the consent, co-operation or assistance of the owner of the land,

then, the court convicting him shall, in addition to the penalty provided for that offence in section 6, order that the lease, licence, permit or any other right in the land shall stand terminated forthwith and thereupon all the interest in the land of the person so convicted shall revert to the owner of the land, who shall, subject to the other provisions of this Act, be entitled to enforce the order as if it were an order for possession made in his favour by a tribunal under the Rent Restriction Act (Cap. 296):

Provided that the person so convicted shall not be entitled either to remove any prohibited plant from the land or to receive any sum by way of compensation for or otherwise in relation to the value of any such plant.

(3)

Where a person is convicted of an offence under section 6, with reference to the cultivation of any prohibited plant on any Government land, and such person is the holder of a lease, licence, permit or any other similar right in the land, then, subject to subsection (4), the court convicting him shall, in addition to the penalty provided for that offence in section 6, order the lease, licence, permit or any other right in the land of the person so convicted shall revert the Government.

(4)

Where under this section—

(a)

any land, is forfeited to the Government, the holder of any mortgage or charge on such land, so forfeited shall, where such mortgage or charge was created bona fide and for valuable consideration, be entitled, notwithstanding such forfeiture, to enforce the mortgage or charge against the land so forfeited; or

(b)

any lease is forfeited to the Government or stands terminated, the holder of any mortgage or charge on the leasehold right shall, where such mortgage or charge was created bona fide and for valuable consideration be entitled, notwithstanding such forfeiture or termination, to enforce the mortgage or charge against the land to the extent of the value of the leasehold right on the date of the creation of the mortgage or charge:

Provided that this subsection shall not apply in the case of the holder of any mortgage or charge where he was concerned in, or was privy to, the commission of the offence of which the person referred to in section 6 was convicted and as a result of which conviction the land is forfeited to the Government or, as the case may be, the lease is forfeited to the Government or stands terminated.

8.
Owner of land to inform police officer, etc.

For the purposes of sections 7 and 9—

(a)

where any person, having any interest in any land, and knowing that any prohibited plant is being cultivated on that land or that the land is being prepared for the purpose of cultivating any prohibited plant, does not promptly inform the officer in charge of the police station nearest either to the land on which the prohibited plant is being cultivated or to the ordinary place of residence or business of such person of that fact, the burden of proving that the person did not consent to, co-operate with or assist in the cultivation of the prohibited plant on that land shall be on that person;

(b)

any reference to cultivation of any plant shall be deemed to include a reference to all activities relating to the cultivation of that plant and harvesting or gathering of the plant or, any part thereof; and

(c)

any reference to the owner, or the holder of any lease, licence, grant, permit or other right in any land shall be deemed, where the land, or the lease, licence, permit or other right, is held by any person jointly or severally with any other person or persons, to be a reference to each other of such persons.

9.
Publication of notice
(1)

As soon as may be after the conviction of any person under section 6 and before the court makes any order under section 7 the court convicting him shall publish in a newspaper circulating in Kenya and in the Gazette a notice stating—

(a)

the particulars of the person convicted;

(b)

the particulars of the land on which the prohibited plant was being cultivated;

(c)

other relevant particulars relating to the offence;

(d)

the date fixed for the hearing of an application for an order under section 7;

(e)

the name and address and the nature of the rights of every person who, according to information available to the court, is the owner or is the intermediate lessee of or has any other right in the land or is in possession of the land at the time of the conviction of the person; and

(f)

such other particulars as may be prescribed by regulations or, subject to such regulations, by rules of court.

(2)

The notice referred to in subsection (1) shall be served on all persons who are known to the court, at the time of the conviction of the person under section 6, as being the owners, or as having any interest in, or as being in possession of, the land in respect of which an order is proposed to be made under section 7, and every such person shall be given a reasonable opportunity of being heard before the order is made.

10.
Notice where owner of land is holder of a lease
(1)

Where the person convicted under section 6 and referred to in section 7 is the holder of a lease, licence, permit or any other right in the land granted by an intermediate lessee and the cultivation of the prohibited plant was carried on by that person without the consent, co-operation or assistance of the intermediate lessee, the intermediate lessee may, before an order of forfeiture is made under any of those provisions, apply to the court convicting the person before the date for hearing specified in the notice under section 9 praying that, instead of the land being forfeited to the Government or reverting to the owner of the land, as the case may be, the intermediate lessee may be allowed to be in possession of the land on the terms of the lease in his favour.

(2)

If the court is satisfied of the facts mentioned in subsection (1) in relation to the applicant, and subject to subsection (3), the court may allow the application and thereupon all the interests in the land of the person so convicted shall revert to the intermediate lessee, instead of being forfeited to the Government or reverting to the owner of the land, as the case may be, and the intermediate lessee shall be entitled to enforce the order in the same manner as the owner of the land may enforce an order under section 7:

Provided that the person so convicted shall not be entitled either to remove any prohibited plant from the land or to receive any sum by way of compensation for or otherwise in relation to the value of any such plant.

(3)

Where there are more intermediate lessees than one, an application under subsection (1) may be made by any of them and the court convicting any person may allow the application of the intermediate lessee who—

(a)

has not consented to, co-operated with or assisted in the cultivation of the prohibited plant by the convicted person; and

(b)

is among the intermediate lessees who have not so consented, co-operated, or assisted, the intermediate lessee nearest to the convicted person having regard to the order in which the sub-leases were executed.

(4)

Upon the making of an order under section 7 the Commissioner of Lands or the Chief Land Registrar, as the case may be, or any officer nominated by him in that behalf shall, with such assistance as, in his opinion, is required or expedient, take possession of the land described in the order for and on behalf of the Government and for that purpose may, if need be, remove therefrom any person refusing to vacate such land and use such force as may be reasonable for that purpose.

(5)

Where an order is made under section 7 or subsection (1) forfeiting any land or reverting any land to the owner or an intermediate lessee of the land, the order shall be treated for all purposes as if it were a transfer or other document effecting a transfer of immovable property or any interest therein and the Commissioner of Lands or Chief Land Registrar shall, on the production to him of the original order, take due notice thereof and shall make such annotations on the records as may be necessary.

11.
Power of entry in respect of Government land
(1)

Without prejudice to any other provision of this Act in relation to the power to enter or search, where the Commissioner of Lands or any officer authorized by him, any forest officer appointed under the Forests Act (Cap. 385) or any police officer has reasonable ground to suspect that—

(a)

any prohibited plant was or is being cultivated on any Government land, whether held by any person under a lease, licence, permit or any other right, or entered upon by any person without any right; or

(b)

that any prohibited plant is on that land,

he may, by himself or with such assistance as in his opinion is reasonable, enter upon and inspect such land.

(2)

Without prejudice to any other provision of this Act, where any police officer or any other person authorized by the Commissioner of Police for the purposes of this section has reasonable grounds to suspect—

(a)

that any prohibited plant was, or is being cultivated on any land, not being Government land; or

(b)

that any prohibited plant is on the land,

he may, by himself or with such assistance as in his opinion is reasonable, enter upon and inspect the land.

12.
Power to court to order destruction of prohibited plants
(1)

A court convicting any person of an offence under this Act shall direct the Commissioner of Police or any police officer authorized by him to destroy all the prohibited plants found on any land to which the offence relates and the Commissioner of Police or any such police officer, as the case may be, shall cause all such plants to be destroyed in such manner as may be prescribed by regulations.

(2)

Where any police officer authorized in that behalf by the Commissioner of Police is, upon entry and inspection under section 11, satisfied that the plants found on any land, are prohibited plants, he shall destroy them in such manner as may be prescribed by regulations.

13.
Provisions relating to certain prescriptions
(1)

A medical practitioner or dentist shall not—

(a)

prescribe for, administer, sell or supply to, any person any narcotic drug or psychotropic substance; or

(b)

sign any prescription or order for the supply of any narcotic drug or psychotropic substance to any person,

unless the narcotic drug or psychotropic substance is required for the medical or dental treatment of the person.

(2)

A veterinary surgeon shall not—

(a)

prescribe, administer, sell or supply any narcotic drug or psychotropic substance; or

(b)

sign any prescription or order for the supply of any narcotic drug or psychotropic substance,

otherwise than in accordance with the provisions of the regulations made under section 84.

(3)

Any person who contravenes subsection (1) or (2) shall be guilty of an offence and liable to a fine of not less than two hundred and fifty thousand shillings or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment.

14.
Penalty for receiving additional narcotic drug or psychotropic substance or prescription without disclosure of earlier receipt

Any person who, in the course of treatment for any physical, dental or mental disorder is supplied with any narcotic drug or psychotropic substance, or a prescription therefor, by a medical practitioner or dentist treating him and who without disclosing that fact receives additional narcotic drugs or psychotropic substances, or a prescription therefor, from any other medical practitioner or dentist, shall be guilty of an offence and liable to a fine of not less than fifty thousand shillings and, in addition, to imprisonment for a term not exceeding ten years.

15.
Removal of name from register

Where a medical practitioner, dentist or veterinary surgeon is convicted of an offence under this Act, he shall, notwithstanding anything contained in any other written law, be liable to have his name removed from the register of those licensed or registered to practise within Kenya as a medical practitioner, dentist or veterinary surgeon, as the case may be.

16.
Board to issue licences for export, import, manufacture, etc.
(1)

The Minister shall establish a Board which shall consist of—

(a)

the Attorney-General or his representative;

(b)

the Permanent Secretary of the Ministry for the time being responsible for Provincial Administration and/or Internal Security or his representative;

(c)

the Permanent Secretary of the Ministry for the time being responsible for Health or his representative;

(d)

the Commissioner of Police or his representative;

(e)

three other persons appointed by the Minister of whom one shall be appointed as the chairman.

(2)

The Board shall—

(a)

issue licences for the importation, exportation, diversion, sale, manufacture, production or distribution (at stated places) of any narcotic drug of psychotropic substance;

(b)

name ports or places in Kenya where any narcotic drug or psychotropic substance may be exported or imported;

(c)

prescribe the manner in which any narcotic drug or psychotropic substance is to be packed or marked for export; and

(d)

prescribe the records to be kept by any person in connection with the export, import, receipt, sale, disposal or distribution of narcotic drugs or psychotropic substances.

17.
Penalty for obstruction, etc.

Any person who—

(a)

delays or obstructs any police officer or any person authorized by the Commissioner of Police, the Director of Medical Services or any other person in the exercise of any of his functions under this Act; or

(b)

wilfully destroys or mutilates or attempts to destroy or mutilate any books or documents required, or liable to be produced before any police officer or any person authorised by the Commissioner of Police, the Director of Medical Services or any other public officer or any other person or any other authority or a court under any provision of this Act; or

(c)

refuses or fails to produce, or conceals, or attempts to conceal, any books or documents or stocks of narcotic drugs or psychotropic substances when their production is demanded by any person in the exercise of his powers under this Act; or

(d)

refuses or fails to comply with any lawful order or direction given by any public officer in the course of, or in connection with, the administration of any provision of this Act, not being a non-compliance referred to in paragraph (c),

shall be guilty of an offence and liable to a fine of not less than one hundred thousand shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

18.
Penalty for failure to furnish information or to produce evidence, etc.

Any person who—

(a)

fails or refuses to comply with any obligation to give information or to produce any book, record or other document, thing or other material to which he is subject under or by virtue of any provision of this Act or any order made thereunder; or

(b)

in purported compliance with any obligation to give information or to produce any book, record or other document or other material to which he is subject under or by virtue of any provision of this Act, gives any information which he knows to be false in a material particular or gives any information which he does not believe to be true, or produces or otherwise makes use of any book, record or other document or other material containing any statement which to his knowledge is false in a material particular or which he does not believe to be true; or

(c)

for the purpose of obtaining, whether for himself or any other person the grant or renewal of a licence or authority under this Act—

(i) makes any statement or gives any information which he knows to be false in a material particular or which he does not believe to be true; or
(ii) produces or otherwise makes use of any book, record or other document or other material containing any statement which to his knowledge is false in a material particular or which he does not believe to be true,

shall be guilty of an offence and liable to a fine of not less than one hundred thousand shillings or imprisonment for a term not exceeding five years or to both such fine and imprisonment.

PART III – FORFEITURE OF NARCOTIC DRUGS, PSYCHOTROPIC SUBSTANCES, IMPLEMENTS AND CONVEYANCE
19.
Forfeiture of narcotic drugs, etc.

Where—

(a)

any person is found in possession of any narcotic drug or psychotropic substance and—

(i) he has no legal authority for the possession of the narcotic drug or psychotropic substance; or
(ii) the narcotic drug or psychotropic substance found in his possession is in excess of the quantity, or is of a quality different from the quality, he is authorized to have in his possession; or
(b)

any narcotic drug or psychotropic substance is found in a place, other than a place where it is authorized to be kept; or

(c)

a contravention of any provision of this Act is committed in relation to any narcotic drug or psychotropic substance,

all the narcotic drugs or psychotropic substances found in the possession of that person or found in that place or in relation to which a contravention of any provision of this Act is committed shall be forfeited to the Government.

20.
Forfeiture of conveyance, implement, etc.
(1)

Any machinery, equipment, implement, pipe, utensil, or other article used for the commission of any offence under this Act shall be forfeited to the Government.

(2)

Every conveyance used for the commission of any offence under this Act or for carrying any machinery, equipment, implement, pipe, utensil or other article used for the commission of any offence under this Act, or any narcotic drug or psychotropic substance, shall be forfeited to the Government:

Provided that where, on application made by the person who was the owner of the conveyance to the court in which any prosecution for any offence under this Act or before which any proceedings under this Act for the forfeiture and condemnation of any conveyance, not being a proceeding under Part IV is pending, the court is satisfied beyond reasonable doubt that—

(a)

the person who was the owner of the conveyance; and

(b)

in the case of an aircraft or ship, every person who was a responsible officer thereof,

when it was made use of for such conveyance, was not concerned in or privy to such use, the conveyance shall be restored to the owner by the court.

PART IV – RESTRAINT ORDER, FORFEITURE OF PROPERTY AND PROCEEDS OF CRIME
Interpretation
21.
Interpretation of Part
(1)

In this Part, unless the context otherwise requires—

“Court” means the High Court;

“defendant” has the same meaning as in the Civil Procedure Act (Cap. 21);

“respondent” means the person against whom an application is made under section 22(1);

“restraint order” means any order under section 26(1);

“revenue” means all tolls, taxes, rates, duties, fees, fines, penalties, rents and other sums due to the Government or a local authority;

“specified offence” means—

(a)

any offence under sections 3, 4, 5 and 6 or any other offence under this Act specified by the Minister by order published in the Gazette for the purposes of this Part;

(b)

a conspiracy to commit or an attempt to commit any offence referred to in paragraph (a);

(c)

inciting another person or attempting to incite any person to commit any offence referred to in paragraph (a); or

(d)

aiding, abetting, counselling or procuring any offence referred to in paragraph (a);

(2)

For the purposes of this Part references to an “accused person” shall be deemed to include reference to any defendant in a complaint in respect of an offence under this Act.

Restraint order
24.
Statement of assets and examination of respondent
(1)

The Court may, before or after an order is made on any application under section 22, direct the respondent to submit, within such time as is allowed by the Court, a statement of all his assets and liabilities.

(2)

A respondent who, after being directed by the Court to do so under subsection (1)—

(a)

refuses or fails to submit a statement of all his assets and liabilities; or

(b)

submits a statement which is false or misleading in any material particular,

shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

25.
Service of notice of application for restraint order
(1)

Subject to this Act, a copy of the application for a restraint order shall be served on the respondent in the same manner as if it is a notice of motion and the respondent shall be given by the Court a reasonable opportunity of being heard before a final order is made on the application in accordance with the rules of court made in respect thereof, or until rules are made, in accordance with the rules of court applicable to the hearing of motions.

(2)

Nothing in subsection (1) shall be deemed to prevent the Court from making such interlocutory orders as it deems appropriate to meet the ends of justice and to prevent the respondent from defeating the purposes of the provisions of this Part before the service of notice under subsection (1) on the respondent.

(3)

Without prejudice to subsection (2), the Court may, pending decision on an application under section 22, attach any movable property of the respondent including moneys payable to him.

26.
Restraint order
(1)

Where an application for a restraint order has been made under section 22, and the Court is satisfied of the matters referred to in that section in relation to the respondent, the Court may make either or both of the following orders—

(a)

prohibiting the respondent or any other person on his behalf, from disposing of, or otherwise dealing with, the property specified in the order or any interest therein; or

(b)

prohibiting the respondent or the other person from disposing of or otherwise dealing with the property or interest therein otherwise than in such manner as may be specified in the order; or

(c)

directing the Official Receiver to take custody and control of the property specified in the order and to manage or otherwise deal with the property in accordance with the directions of the Court.

(2)

Where an order has been made under subsection (1)(b)—

(a)

every person who is in possession of any property to which the order relates shall forthwith hand over the property to the Official Receiver, failing which the Official Receiver shall have power to recover possession of that property and for that purpose to break open any lock and to use such force as he deems reasonable; and

(b)

without prejudice to subsection (1), a bank shall not pay to the respondent, or to any other person on the order or on behalf of the respondent any money from sums held in any current, deposit or other account in the bank in the name of the respondent.

27.
Notice of order under section 26

An order made under section 26 shall be served on the respondent in the same manner as if it is an order of injunction and shall be published in at least one newspaper circulating in Kenya and in the Gazette and, where any property to which the order relates is situated in a country outside Kenya on the date of the order, in at least one newspaper having circulation in that country.

28.
Effect of restraint order
(1)

Where a restraint order has been made by the Court in respect of any property, all transfers of that property or any interest in that property, during the period when the restraint order is in force, shall be void.

(2)

Nothing in subsection (1) shall prevent—

(a)

any court from enforcing a mortgage or charge against any property referred to therein where the Court is satisfied that—

(i) the mortgage or charge was created bona fide for valuable consideration; or
(ii) the person in whose favour the mortgage or charge was created and registered was not concerned in, or privy to, the commission of a specified offence by the person against whom the restraint order has been made; or
(b)

the recovery of any revenue due to the Government or a local authority by sale of any property referred to therein.

(3)

Where a restraint order has been made in respect of any property, the Attorney-General shall be made a party to any action or other proceeding for the enforcement of any mortgage or charge against the property.

29.
Duration of restraint order

Subject to this Part, a restraint order in respect of any property shall remain in force until it is revoked by the Court or the property, in respect of which it has been made, is forfeited to the Government.

30.
Offences in respect of restraint order

Any person on whom an order made under section 26 is served and who, while the order is in force, contravenes, or fails to comply with the order shall be guilty of an offence and liable to imprisonment for a period not exceeding ten years.

32.
Exclusion of property, recognition of claims, and revocation of restraint order
(1)

Any person who has title to any property or claims an interest, including a mortgage or charge in or over any property in respect of which a restraint order has been made, may apply to the Court, within thirty days of the making of the restraint order, stating the particulars of his claim and if the Court is satisfied that the applicant has title to the property, the Court may exclude the property from the operation of the restraint order.

(2)

An application under subsection (1) may be entertained by the Court after the expiry of the period of thirty days if the Court is satisfied that there are sufficient reasons to do so.

(3)

No order in favour of any applicant under subsection (1) shall be made by the Court if there is reasonable ground to believe that the applicant was concerned in, or privy to, the specified offence alleged to have been committed by the person against whom the restraint order has been made.

(4)

Where—

(a)

before the expiry of six months or such further time as may be allowed by the Court in that behalf, from the date of the restraint order, no complaint is made or information is laid before any Court in respect of any specified offence against the person against whom the restraint order is made; or

(b)

a complaint is made or information is laid against such person in respect of a specified offence and the complaint is dismissed or the

person is discharged or acquitted by the court which tried him and there is no appeal from the dismissal of the complaint or the discharge or acquittal is confirmed on appeal,

the Court may, on the application of the person against whom the restraint order was made, revoke the restraint order.

35.
Variation of restraint order

On application made by the person against whom a restraint order has been made, or by any other person, the Court may vary the restraint order in such manner as may be necessary to meet the ends of justice.

Forfeiture of Property
36.
Forfeiture of property

Subject to this Part, where any person has committed a specified offence, all the property owned by him on the date of the commission of that offence or acquired by him after that date shall be forfeited to the Government.

37.
Section 36 not to affect certain liabilities

The provisions of section 36 shall not affect—

(a)

the rights of any person who has any mortgage or charge in respect of any property liable to forfeiture under that section where—

(i) the mortgage or charge was created before the commission of the specified offence bona fide and for valuable consideration;
(ii) the mortgagee or chargee was not concerned in or privy to the commission of the offence; or
(b)

the right of any local authority to recover any arrears of revenue by the sale of any such property.

39.
Provision for payment of moneys owed
(1)

Where a person, in respect of whom a notice has been published under section 41(2) or (5), owed immediately before the commission by him of the relevant specified offence, moneys not secured by or charged on property liable to forfeiture under section 36, any person to whom the moneys were due may apply to the Court, within thirty days of the publication of the notice in a newspaper or such further time as may be allowed by the Court, requesting that such part of the property be liable to forfeiture and placed at the disposal of the Official Receiver for the payment of the moneys so owed.

(2)

On the receipt of an application under subsection (1) and on being satisfied that the applicant was not concerned in, or privy to, the commission of the offence, the Court may release from forfeiture and place at the disposal of the Official Receiver such part of the property of the person in respect of whom a notice has been published under section 41(2) or (5), as it thinks fit having regard to the following—

(a)

whether the liability was incurred bona fide;

(b)

the secured debts of the person;

(c)

the revenues that the person owes to the Government or any local authority; and

(d)

the proportion of the total liabilities of the person to his total assets.

40.
Claim by person who has committed a specified offence
(1)

Any person in respect of whom a notice has been published under section 41(2) or (5) may apply to the Court, within thirty days of the publication of the notice in a newspaper, for the release from forfeiture of any property belonging to him on the grounds that he acquired it—

(a)

by succession; or

(b)

by gift from a relation who was not concerned in, or privy to, the specified offence of which he was convicted or with reference to which the application for forfeiture has been made under section 41(4), or any other offence under this Act; or

(c)

with moneys earned by him through lawful means.

(2)

Where the Court is satisfied that the property was acquired by the person applying under subsection (1) in any manner specified in that subsection, the Court shall, subject to any terms and conditions as may be specified by it, exclude it from the property forfeited to the Government under section 36.

(3)

In this section, “relation” includes, in the case of a man, his wife or reputed wife and in the case of a woman her husband or reputed husband.

42.
Forfeiture order
(1)

At the conclusion of the proceedings under section 41 the Court shall make an order determining—

(a)

whether the person against whom the application has been made has committed a specified offence;

(b)

the property of that person;

(c)

any mortgage or charge secured by or over the property;

(d)

the property placed at the disposal of the Official Receiver under section 39(1) and the sums of money the Official Receiver has to pay in respect of the person mentioned in section 38(1)(a) or (b), the person to whom the sum payable in respect of each minor child shall be paid, and the dates of payment;

(e)

the property excluded from forfeiture under section 40;

(f)

the property forfeited to the Government; and

(g)

the extent to which any property forfeited to the Government, shall be liable for arrears of revenue due to a local authority.

(2)

A notice shall be published in a newspaper circulating in Kenya and in the Gazette stating the particulars of the property placed at the disposal of the Official Receiver and the property forfeited to the Government under subsection (1).

(3)

An order under subsection (1) so far as it relates to immovable property forfeited to the Government shall be treated for all purposes as if it were a transfer or other document effecting the transfer of immovable property and the Commissioner of Lands or Chief Land Registrar, as the case may be, shall take due notice thereof and shall make such annotations on the records as may be necessary.

43.
Effect of forfeiture order
(1)

Where any order has been made under section 42—

(a)

no mortgage or charge in favour of any person or authority (not being the Government or a local authority), other than a mortgage or charge mentioned in the order as being secured by any or all of the property in respect of which the order is made, shall be enforceable by any court or other authority in respect of the property stated in the order; and

(b)

the property stated in the order as forfeited to the Government shall vest in the Government absolutely subject only to any mortgage or charge, or arrears of revenue due to a local authority, to which, as expressly stated in the order, the property is subject.

(2)

An order under section 42(1) in respect of immovable property shall be treated for all purposes as if it were a transfer or other document effecting the transfer of immovable property and on the production of a certified copy of the order the Chief Land Registrar or the Commissioner of Lands, as the case may be, shall make such annotations on the records as may be necessary.

(3)

Every person who is in possession of any property forfeited to the Government under section 42(1) shall, on the production of a certified copy of the order, forthwith hand over possession of it to the officer specified in that behalf, by the Minister for the time being responsible for finance, by general or special order.

(4)

Without prejudice to the provisions of subsection (3), an order under section 42(1) may be executed as if it were an order for the delivery of possession of movable or immovable property, as the case may be.

44.
Penalty for contravention of section 43(3)

Any person who contravenes the provisions of section 43(3) shall be guilty of an offence and liable to a fine which shall not be less than the value of the property, the possession of which he refuses or fails to hand over in addition to imprisonment for one year.

46.
Arrangement regarding tracing, realisation, etc. of property in a country outside Kenya

The Government of Kenya may enter into an arrangement with the Government of any other country and make provisions for the recovery and handing over of possession to the Government of Kenya, of any property in respect of which an order of forfeiture has been made under section 42 and which is in that country or for tracing and preserving any property in that country owned by or under the control of any person who has, or is suspected to have, committed any offence under this Act.

47.
Arrangement regarding tracing, realisation, etc. of property in Kenya
(1)

The Government of Kenya may enter into an arrangement on a reciprocal basis with the Government of any other country in respect of the recovery, and handing over of possession to the Government of that country of any property in Kenya which is confiscated by or forfeited to the Government of that country in consequence of the commission by any person of an offence against a corresponding law of that country or for tracing and preserving any property in Kenya owned by or under the control of any person who has, or is suspected to have, committed an offence against such corresponding law.

(2)

Where an arrangement referred to in subsection (1) has been entered into between the Government of Kenya and the Government of any other country, the Minister may, by order, give effect to that arrangement and prescribe the procedure in relation to the recovery and handing over of possession to the Government of that country, or tracing and preserving, of any property to which the arrangement applies.

(3)

An order made under subsection (2) shall be laid before the National Assembly without unreasonable delay, and if a resolution is passed by the Assembly within twenty days on which it next sits after the order is so laid that the order be annulled, it shall henceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the issuing of a new order.

48.
Procedure
(1)

Proceedings under this Part shall be deemed to be civil proceedings.

(2)

Subject to this Part, the practice and procedure of the Court or any other court in regard to any matter referred to in this Part shall be governed by regulations made by the Attorney-General and, subject to any such regulations, by rules of court.

Money Laundering
50.
Provisions of Part in addition to and not in derogation of Parts II and III

The provision of this Part shall be in addition to, and not in derogation of, the provisions of Part II and Part III in relation to forfeiture of any land, narcotic drug or psychotropic substance, conveyance or any other article or thing.

PART V – REHABILITATION
51.
Interpretation of Part

In this Part—

“Centre” means a rehabilitation centre established under section 52;

“Council” means the Advisory Council for the Rehabilitation of Narcotic Addicts appointed under section 56;

“Fund” means the Rehabilitation Fund established under section 53;

“Minister” means the Minister for the time being responsible for Health.

52.
Rehabilitation Centres

The Minister may establish such number of rehabilitation centres as he thinks fit for the care, treatment and rehabilitation of persons addicted to narcotic drugs or psychotropic substances.

53.
Rehabilitation Fund
(1)

The Minister shall establish a special fund to be known as the Rehabilitation Fund.

(2)

The Fund shall consist of—

(a)

such sums as may be provided by Parliament;

(b)

such portion of the property forfeited to the Government under Part IV as may be assigned to the Fund by the Minister for the time being responsible for Finance by order published in the Gazette;

(c)

sums or other property received by the Fund by way of fees, contribution, gift or grant from or by way of testamentary bequest by any person;

(d)

such sums as may be allocated from time to time to the Fund from loan funds;

(e)

moneys earned or arising from any property, investments, mortgages and debentures acquired by, or vested in, the Fund;

(f)

any property, mortgages, debentures, or investments, acquired by, or vested in, the Fund;

(g)

sums borrowed by the Fund for the purposes of meeting any of its obligations or discharging any of its functions; and

(h)

all other sums or other property which may in any manner become payable to, or vested in, the Fund.

(3)

For the purposes of this section “loan funds” means such sums as may be made available from time to time by the Government by way of loan.

(4)

Where by an order under subsection (2)(b) any immovable property is assigned to the Fund, the Minister shall deal with the property in such manner as he thinks fit and may sell the property and use the proceeds of sale for the purposes for which the Fund is established.

(5)

The Fund shall be used for meeting the capital and current expenditure relating to the Centres.

54.
Board to manage the Fund
(1)

Subject to this Part, the Fund shall be administered by a Board consisting of the Permanent Secretary to the Treasury and two other persons appointed by the Minister responsible for finance in consultation with the Minister, of whom one shall be appointed as the Chairman.

(2)

The Board may, with the approval of the Minister for the time being responsible for finance, invest or place on a deposit account any of the moneys of the Fund and any interest earned on moneys so invested or deposited shall be placed to the credit of the Fund.

55.
Management of the Fund
(1)

The Board shall—

(a)

impose conditions as to the use to be made of any expenditure authorized by the Board and such conditions may impose any reasonable prohibitions, restrictions or requirements concerning such use or expenditure;

(b)

cause to be kept proper books of account and other books and records in relation to the Fund as well as to all the various activities and undertakings of the Fund;

(c)

transmit to the Controller and Auditor-General in respect of each financial year and within four months after the end of such financial year, a statement of account relating to the Fund specifying income to the Fund in such details as the Treasury may from time to time direct in accordance with section 18 of the Exchequer and Audit Act, (Cap. 412) including any investment or deposit made under section 54(2) and shall furnish such additional information as may be deemed sufficient and necessary for the purpose of examination and audit by the Controller and Auditor-General under section 19 of the Exchequer and Audit Act (Cap. 412), and every statement of account shall include details of the balance between the assets and liabilities of the Fund, and indicate the financial status of the Fund, as at the end of the financial year concerned.

56.
Advisory council for rehabilitation of narcotic addicts
(1)

The Minister shall appoint a council to be known as the Advisory Council for the Rehabilitation of Narcotic Addicts consisting of a chairman and such number of other persons, not exceeding fifteen, as the Minister thinks fit, from among persons who are qualified and have had experience of, and shown capacity in, matters relating to the care, treatment and rehabilitation of persons addicted to narcotic drugs or psychotropic substances or, in administration or finance.

(2)

The terms and conditions of appointment of the chairman and other members of the Council shall be such as shall be prescribed by the Minister by regulation.

57.
Functions of the Council

The Council shall advise the Minister on such matters, as may be referred to it by the Minister, relating to the administration of the Centres and the care, treatment and rehabilitation of drug addicts.

58.
Committal of persons to Centers
(1)

A court convicting any person for an offence under this Act may, if the court is satisfied that he is addicted to a narcotic drug or psychotropic substance and that he is in possession of the narcotic drug or psychotropic substance only for his personal consumption, order that such part, as it thinks fit, of the period of imprisonment imposed on him be spent in a Centre specified by the court.

(2)

The court may, on the application of the Attorney-General or the person convicted or otherwise, vary or revoke the order.

(3)

Where on the report of the officer in charge of the Centre to which a convicted person is committed under subsection (1), or otherwise, the court which committed him to the Centre is satisfied that the convicted person has successfully undergone the treatment and rehabilitation programme of the Centre and that he is no longer an addict the court may, having regard to all the circumstances of the case, grant remission of the whole or part of the remaining period of imprisonment imposed on him.

PART VI – INTERNATIONAL ASSISTANCE IN DRUG INVESTIGATION AND PROCEEDINGS
60.
Evidence, etc. obtained from another country

Evidence, documents or articles obtained pursuant to a request made under section 59 shall—

(a)

be received in evidence in Kenya;

(b)

not be used for a purpose other than that specified in that request, except with the consent of the appropriate authority of the foreign country; and

(c)

be returned when its use is no longer required, unless that authority indicates to the contrary.

62.
Requests to Kenya for evidence
(1)

Where another country requests assistance from Kenya in obtaining evidence for the purpose of an investigation or a proceeding in relation to an offence under corresponding law of that country, the Attorney-General may nominate a court in Kenya to receive such evidence as appears to the court appropriate in order to give effect to the request.

(2)

The court nominated pursuant to subsection (1) shall have the same power to secure the attendance of witnesses, administer oaths and receive evidence as it has for the purposes of other proceedings before the court.

(3)

The evidence received by the court shall be certified or verified by the court in such manner as the Attorney-General specifies and then furnished to the Attorney-General for transmission to the requesting country.

PART VII – MISCELLANEOUS PROVISIONS
65.
Jurisdiction

Any conduct which would constitute a specified offence if engaged in in Kenya shall constitute that offence if engaged in in a Kenyan ship or aircraft.

66.
Offences by body corporate

Where any offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly and in addition the court convicting may, where such body corporate is registered under such written law, make an order directing that such body corporate be de-registered.

68.
Burden of proof in respect of certain matters

In any proceedings against any person for an offence under this Act, it shall not be necessary for the prosecution to negative by evidence any licence, authority, or other matter of exception or defence, and the burden of proving any such matter shall be on the person seeking to avail himself thereof.

69.
Power to question and request production of documents, etc.
(1)

For the purpose of investigating the commission, or of preventing the commission, of any offence under this Act or for the purpose of giving effect to any provision of this Act, a police officer may—

(a)

question any person in respect of any matter relevant to that purpose, and such person shall answer fully and truthfully all such questions; or

(b)

request any person to produce before the police officer within such reasonable time not exceeding seven days as may be specified by him, or to allow him access to documents or other materials in the possession or control of such person and relevant to the aforesaid purpose, and such person shall fully and truthfully comply with that request.

(2)

A police officer may take one or more copies of any document produced before him, or to which he is allowed to have access, under this section.

(3)

The provisions of subsection (1)—

(a)

shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of any information imposed by any written law, other than this Act, or otherwise; and

(b)

shall not confer any right to production of, or to have access to, items subject to legal privilege or excluded material.

(4)

Where the documents or other material in respect of which a request to produce or to be allowed access is made under subsection (1)(b), consists of information contained in a computer, the request shall have effect as a request to produce the material in a form in which it can be taken away or, as the case may be, as a request to give access to the material in a form in which it is visible and legible.

70.
Interpretation
(1)

Subject to subsection (2), in section 69—

“items subject to legal privilege” means—

(a)

communications between an advocate and his client or any person representing his client, made in connection with the giving of legal advice to the client;

(b)

communications between—

(i)

an advocate and his client or any person representing his client; or

(ii)

between an advocate, or his client, or any such representative, and any other person,

made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; or

(c)

items enclosed with or referred to in such communications and made—

(i)

in connection with the giving of legal advice; or

(ii)

in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

when the items are in the possession of a person who is entitled to possession of them.

(2)

Any item held with the intention of furthering a criminal purpose is not an item subject to legal privilege.

(3)

Subject to subsection (4), in section 69—

“excluded material” means—

(a)

personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence; or

(b)

human tissue or tissue fluid which has been taken for the purpose of diagnosis or medical treatment and which a person holds in confidence; or

(c)

journalistic material which a person holds in confidence and which consists of documents or of records other than documents;

(4)

A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—

(a)

to an express or implied undertaking to hold it in confidence; or

(b)

to a restriction on disclosure or an obligation of secrecy contained in any written law whether made or enacted before or after the commencement of this Act.

(5)

A person holds journalistic material in confidence for the purposes of this definition if—

(a)

he holds it subject to such an undertaking, restriction or obligation; and

(b)

it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.

(6)

In subsection (3)—

“personal records” means documentary and other records concerning an individual (whether living or dead) who can be identified from them and relating to—

(a)

his physical or mental health;

(b)

spiritual counselling or assistance given or to be given to him; or

(c)

counselling or assistance given or to be given to him, for the purposes of his personal welfare, by any voluntary organization, or by any individual who—

(i)

by reason of his office or occupation has responsibilities for his personal welfare; or

(ii)

by reason of an order of a court has responsibilities for his supervision;

“journalistic material” means material acquired or created for the purposes of journalism but only if such material is in the possession of a person who acquired or created it for such purposes; and a person who receives material from someone who intends that the recipient shall use it for such purposes is to be taken to have acquired it for those purposes;

“document” includes, in addition to a document in writing—

(a)

any map, plan, graph or drawing;

(b)

any photograph;

(c)

any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(d)

any film, microfilm, negative, tape or other device in which one or more visual images are embodied so as to be capable of being reproduced therefrom.

71.
Inspection

Any police officer or any other person authorized in writing by the Commissioner of Police for the purposes of this section, the Director of Medical Services or any person authorized by him shall, for the purpose of the execution of this Act, have power to enter the premises, or other place, of any person lawfully carrying on business as a producer, manufacturer, seller or distributor of, or otherwise dealing in, any narcotic drugs or psychotropic substances and to demand the production of, and to inspect, any books or documents relating to his dealings in any such narcotic drug or psychotropic substance and to inspect any stocks of any such narcotic drugs or psychotropic substances and seize and detain any narcotic drug or psychotropic substance, which in the opinion of such authorized person, is below standard or unfit for use for medicinal purposes.

72.
Power to search person, vehicles, etc.
(1)

Any police officer, or any other person authorized in writing by the Commissioner of Police for the purposes of this section, who has reasonable cause to suspect that any person is in possession of, or is removing, any narcotic drug or psychotropic substance in contravention of this Act may—

(a)

stop and search that person and any conveyance in which he is and any package in his possession or under his control;

(b)

seize and detain for the purposes of proceedings under this Act any narcotic drug or psychotropic substance or any other thing (including any conveyance) which appears to be evidence of the commission of an offence under this Act, found in the course of the search; and

(c)

arrest and detain the person until he can be brought before a magistrate as soon as is reasonably practicable, and dealt with according to law.

(2)

Any police officer, or any other person authorized in writing by the Commissioner of Police for the purposes of this section, who has reasonable cause to suspect that any motor vehicle, aircraft, ship, carriage or other conveyance was, or is being, made use of in the commission of any offence under this Act may stop and enter and search the motor vehicle, aircraft, ship, carriage or other conveyance and may for that purpose break open any door and remove any other impediment or obstruction to such entry.

(3)

A police officer or authorized person referred to in subsection (1) or (2) may use such assistance and such force as may be reasonable for carrying out his functions under those subsections.

73.
Power to search premises
(1)

Where information on oath is laid before a magistrate alleging that there is reasonable ground for suspecting that—

(a)

an offence under this Act has been, or is being or is planned to be, committed and that evidence of the commission of, or plan to commit the offence is to be found on any premises or other place; or

(b)

any document or other material directly or indirectly relating to, or connected with, any transaction or dealing which is, or any intended transaction or dealing which, if carried out, would be—

(i) an offence under this Act; or
(ii) in the case of a transaction or dealing carried out or intended to be carried out in any place outside Kenya, an offence against any corresponding law in force in that place,

is in the possession of or under the control of any person in any premises or other place, the Magistrate may, by warrant under his hand, authorize any police officer named in the warrant, with such assistance as that police officer thinks reasonable, at any time or times within one month from the date of the warrant, to enter and search the premises or other place named in the warrant.

(2)

A police officer authorized by any warrant under subsection (1) to search any premises or other place may enter and search such premises or other place (including any receptacle found therein) and every person found therein or who, the police officer has reasonable ground to believe, has recently left those premises or that other place, and for that purpose may use such assistance and such force as may be reasonable and may break open any lock, and may seize any narcotic drug or psychotropic substance, or document or other material referred to in subsection (1), found therein or on any such person, and any other article or thing which he has reasonable ground to believe to be evidence of the commission or intended commission of any offence under this Act.

(3)

Where information on oath is laid before a magistrate alleging that there is reasonable ground for suspecting that there is concealed on any person, animal or thing or in any receptacle, premises or other place, any movable property—

(a)

liable for forfeiture under Part IV;

(b)

in respect of which a restraint order has been made under section 26; or

(c)

liable for forfeiture under section 36,

the magistrate may, by warrant under his hand, authorize any police officer named in the warrant, with such assistance as that police officer thinks reasonable, at any time or times within one month from the date of the warrant, to enter and search the premises or other place or to search any person, animal, thing or receptacle.

(4)

A police officer authorized by any warrant under subsection (3) to search any person, animal, thing, receptacle, premises or other place may search the person, animal, thing or receptacle, or may enter and search any building or other place, and for that purpose may use such assistance and such force as may be reasonable, and may break open any lock, and seize any movable property, referred to in subsection (3) found thereon or therein.

(5)

Where any police officer not below such rank as may be specified by regulations is, for reasons to be recorded in writing, satisfied that the delay caused by the time required to apply for and obtain a warrant to enter and search under subsection (1) or (3) would defeat the purpose of the search, he may exercise the powers conferred on him by subsection (2) or (4) in relation to search and seizure without obtaining any warrant for search under subsection (1) or (3).

74.
Seizure of narcotic drugs, etc.

Subject to this Act, all articles and things, including any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance, that are liable to forfeiture under any provision of this Act may be seized and detained by any police officer or any other person authorized in writing by the Commissioner of Police for the purposes of this Act.

75.
Keeping of property seized under Act

All articles and things, including any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance seized by any person under this Act shall, as soon as possible, be delivered to the Commissioner of Police with a statement of the particulars relating to the seizure and the Commissioner of Police shall arrange for the articles and things to be kept safely until they are dealt with in accordance with any other provision of this Act, and shall ensure that all reasonable steps are taken to preserve the articles and things while they are so kept.

76.
Search of persons and restriction thereto

No female shall be searched except by a female, and no male shall be searched except by a male under this Act.

77.
Notice of seizure
(1)

Where any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing liable for forfeiture is seized under this Act, notice of the seizure shall be given by the person seizing the same as soon as possible to the owner or to the person in charge thereof if such person is not the owner.

(2)

A notice under subsection (1) shall be given to the owner or person in charge—

(a)

by delivering the notice personally to the owner or person in charge, as the case may be, or by sending the notice by post to his usual place of abode or business premises; or

(b)

if the owner or person in charge, as the case may be, is not known or, if known, he cannot be found after reasonable enquiry and his usual place of abode and his business premises are not known, or he refuses to accept the notice when tendered to him, by publishing the notice in one newspaper circulating in Kenya.

(3)

Any person who claims any article or thing referred to in subsection (1) and seized under this Act, as its owner or any other person duly authorized by such owner may give notice to the Commissioner of Police that he claims the article or thing within thirty days of the date on which the notice of seizure under subsection (1) was delivered under subsection (2)(a) or, if the notice of seizure was not so delivered, of the date on which the owner came to know of the seizure:

Provided that no notice of claim shall be entertained by the Commissioner of Police under this subsection after the expiry of ninety days from the date of the seizure.

(4)

Any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing seized under this Act and in respect of which no notice of claim was given before the expiry of the time prescribed therefor shall be deemed to be taken and condemned and may be disposed of by the Minister in such manner as may be prescribed by regulations.

78.
Condemnation of seized things

Where a person is convicted of an offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or other article or thing be condemned and forfeited to the Government.

80.
Power to arrest without warrant
(1)

Any police officer may arrest without warrant any person who has committed, or has attempted to commit, or is reasonably suspected by such police officer of having committed or attempted to commit or being about to commit an offence against this Act.

(2)

The provisions of subsection (1) shall be in addition to, and not in derogation of, the provisions of any other written law.

81.
Punishment of attempt to commit, etc. offences against this Act

Notwithstanding anything contained in any other written law, every person who—

(a)

attempts to commit; or

(b)

conspires with any other person to commit; or

(c)

solicits, incites, aids, abets or counsels or attempts to solicits, incite, aid, abet or counsel any other person to commit; or

(d)

causes or procures, or attempts to cause or procure the commission of; or

(e)

is otherwise directly or indirectly knowingly concerned in the commission of an offence under this Act,

may be charged with, tried, convicted and punished in all respects as if he were a principal offender.

82.
Fees
(1)

The Minister may charge such fees as may be prescribed by regulations for an application for any licence, certificate or authorization or renewal thereof, or for the grant of any licence, certificate or authorization or renewal thereof, under this Act.

(2)

Any person or class of persons who is or are undergoing a treatment and rehabilitation programme at a Rehabilitation Centre established under section 52 or is under the care of any such Centre, otherwise than in consequence of an order of a court under section 58, may be required to pay such fees as may be prescribed by regulations by the Minister responsible for health and different fees may be prescribed for different classes of persons having regard to their income or property or both.

83.
Penalty for contravention of Act in certain cases

Where any person contravenes any provision of this Act and no penalty is prescribed for such contravention by any other provision of this Act, the person so contravening shall be liable to a fine of one hundred thousand shillings and, in addition, to imprisonment for five years.

84.
Regulations
(1)

The Minister may make regulations generally for carrying out the purposes of this Act.

(2)

Without prejudice to generality of subsection (1), and in particular, the Minister may by regulations make provision for all or any of the following matters—

(a)

prescribing standards for narcotic drugs and psychotropic substances that a licensee may possess, sell or supply to any person and the quantity of any narcotic drug or psychotropic substance that a licensee may have in his possession;

(b)

prescribing conditions regarding the sale or supply of narcotic drugs or psychotropic substances to any person by a licensee, including a medical practitioner or a dentist or registered pharmacist holding a licence;

(c)

prescribing the persons authorized to buy narcotic drugs or psychotropic substances and the conditions to which the authorization shall be subject;

(d)

regulating the issue of prescriptions containing narcotic drugs or psychotropic substances and the dispensing or supplying of narcotic drugs or psychotropic substances on prescriptions, and for requiring persons seeking prescriptions for any narcotic drugs or psychotropic substances to furnish to such authority any such information relating to those prescriptions as may be specified by regulations;

(e)

regulating the prescription, administration, giving, selling or supplying of any narcotic drugs or psychotropic substances by a veterinary surgeon under section 13(2);

(f)

regulating the importation, exportation or diversion, sale, manufacture, production or distribution (at stated places) of any narcotic drugs or psychotropic substances;

(g)

specifying the port or place in Kenya through which any narcotic drugs or psychotropic substances may transit in Kenya;

(h)

specifying particulars to be contained in any export or import authorization for the exportation or importation of narcotic drugs or psychotropic substances;

(i)

prescribing the form of an application for a removal licence, the forms of a removal licence and the fees that should accompany any such application and payable for the removal licence;

(j)

prescribing the form of application for a diversion certificate and the fees payable therefor;

(k)

prescribing the form of a diversion certificate, the fees payable therefor and the particulars it should contain;

(l)

specifying the manner in which any narcotic drug or psychotropic substance shall be packed, labelled or otherwise kept for export, sale, supply, administration or distribution;

(m)

prescribing the manner of disposal or destruction of narcotic drugs and psychotropic substances under any provision of this Act;

(n)

prescribing the manner of destruction of prohibited plants;

(o)

prescribing the form of notice of application for a restraint order;

(p)

prescribing the manner of hearing a respondent in an application for a restraint order;

(q)

requiring the keeping of records that are to be kept, and the furnishing of information, by any person with respect to narcotic drugs or psychotropic substances or in connection with dealings in narcotic drugs or psychotropic substances;

(r)

prescribing the forms for any purpose under this Act, other than those prescribed under any other provision of this subsection;

(s)

prescribing any other matter that may be, or is required to be, prescribed by this Act by the Minister by regulations.

(3)

Regulations may also provide for authorizing any person who is licensed or otherwise authorized and who lawfully keeps any pharmacy for the retailing of poisons in accordance with the provisions of the Pharmacy and Poisons Act (Cap. 244)—

(a)

to manufacture at the shop in the ordinary course of his retail business any preparation, admixture, or extract, of any narcotic drug or psychotropic substance to which this Act applies; or

(b)

to carry on at the pharmacy the business of retailing, dispensing, or compounding, any such narcotic drug or psychotropic substance,

subject to the power of the Minister to withdraw the authorization in the case of a person who has been convicted of an offence under this Act or under the Pharmacy and Poisons Act (Cap. 244) or the Food, Drugs and Chemical Substances Act (Cap. 254), or who cannot, in the opinion of the Minister, properly be allowed to carry on the business of manufacturing or selling or distributing, as the case may be, of any such narcotic drug or psychotropic substance.

(4)

The Chief Justice may make rules prescribing the practice and procedure of the High Court or any other court in regard to proceedings for forfeiture and condemnation by any such court under any provision of this Act, or relating to proceedings for a restraint order under Part IV, and for matters connected with or incidental to such proceedings.

(5)

The Minister responsible for Health may by regulations make provisions for all or any of the following matters—

(a)

for the administration and management of, and for all matters relating to, Rehabilitation Centres established under section 52, including the security and safety of the persons who are committed or admitted into any such Centres;

(b)

the terms and conditions of appointment of the chairman and other members of the Advisory Council for Rehabilitation of Narcotic Addicts; and

(c)

for any other matter that may be, or is required to be prescribed by this Act by the Minister responsible for health.

(6)

Nothing in any regulations made under this section shall be taken as authorizing the sale, or the keeping of an open shop for the retailing, dispensing, or compounding of poisons by any person who is not qualified in that behalf under, or otherwise than in accordance with, the provisions of the Pharmacy and Poisons Act (Cap. 244) or to be in derogation of the provisions of that Act prohibiting, restricting or regulating, the sale of poisons.

85.
Penalty for contravention of regulations
(1)

Regulations made under section 84 may provide that any person contravening any provision thereof, other than a provision for which a specific penalty is provided, shall be liable to a fine not exceeding two hundred and fifty thousand shillings or imprisonment for a term not exceeding five years or to both such fine and imprisonment.

(2)

Every person guilty of the contravention of any regulation, not being a regulation made under section 84(4), for which no penalty is expressly provided shall be liable to a fine of one hundred thousand shillings or to imprisonment for three years and in the case of a continuing offence to a further penalty of twenty thousand shillings for each day during which the offence continues.

86.
Valuation of goods for penalty
(1)

Where in any prosecution under this Act any fine is to be determined by the market value of any narcotic drug, psychotropic substance or prohibited plant, a certificate under the hand of the proper officer of the market value of such narcotic drug or psychotropic substance shall be accepted by the court as prima facie evidence of the value thereof.

(2)

In this section “proper officer” means the officer authorized by the Minister by notification in the Gazette for the purposes of this section.

87.
Power to amend Schedules

The Minister may, by order, add any substance or plant to the First, Second and Third Schedules and may from time to time delete therefrom any substance or plant the inclusion or exclusion of which, as the case may be, is deemed necessary by him in the public interest.

88.
Repeal of Cap. 245

The Dangerous Drugs Act (Cap. 245) is repealed.

FIRST SCHEDULE [Section 2.]

LIST OF NARCOTIC DRUGS

Acetorphine (3-O-acetyltetrahydro-7x-(1-hydroxy-1-methylbutyl)-6, 14-endoetheno-oripavine)

Acetyl-alpha-methylfentanyl (N-[1-(a-methylphenethyl)-4-piperidyl] acetanilide)

Acetylmethadol (3-acetoxy-6-dimethylamino-4, 4-diphenylheptane)

Alfentanil (N-[1-[2-(4-ethyl-4, 5-dihydro-5-oxo-1IH-tetrazol-1-yl) ethyl)-(methoxymethyl)-4-piperidinyl]-N-phenylpropanamide monohydrochloride)

Allylprodine (3-allyl-l-methyl-4-phenyl-4-propionoxypiperidine)

Alphacetylmethadol (alpha-3-acetoxy-6-dimethylamino-4, 4-diphenylheptane)

Alphameprodine (alpha-3-ethyl-l-methyl-4-phenyl-4-propionoxypiperidine)

Alphamethadol (alpha-6-dimethylamino-4, 4-diphenyl-3-heptanol)

Alpha-methylfentanyl (N-[1-(a-methylphenethyl)-4-piperidyl] propionanilide)

Alpha-methylthiofentanyl (N-[1-[1-methyl-2-(2-thienyl) ethyl]-4-piperidyl] propionanilide)

Alphaprodine (alpha-1, 3-dimethyl-4-phenyl-4-propionoxy piperidine)

Anileridine (1-para-aminophenethyl-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Benzethidine (1-(2-benzyloxyethyl)-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Benzylmorphine (3-benzylmorphine)

Betacetylmethadol (beta-3-acetoxy-6-dimethylamino-4, 4-diphenylheptane)

Beta-hydroxyfentanyl (N-[1-(beta-hydroxyphenethyl)-4-piperidyl] propionanilide)

Beta-hydroxy-3-methylfentanyl (N-[1-(beta-hydroxyphenethyl)-3-methyl-4-piperidyl] propionanilide)

Betameprodine (beta-3-ethyl-1-methyl-4-phenyl-4-propionoxypiperidine)

Betamethadol (beta-6-dimethylamino-4, 4-diphenyl-3-heptanol)

Betaprodine (beta-1, 3-dimethyl-4-phenyl-4-propionoxypiperidine)

Bezitramide (1-(3-cyano-3, 3-diphenylpropyl)-4-(2-oxo-3-propionyl-1-benzimidazolinyl)-piperidine)

Cannabis (Indian Hemp) and Cannabis resin (Resin of Indian Hemp)

Clonitazene (2-para-chlorbenzyl-1-diethylaminoethyl-5-nitrobenzimidazole)

Coca Leaf

Cocaine (methyl ester of benzoylecgonine)

Codoxime (dihydrocodeinone-6-carboxymethyloxime)

Concentrate of poppy straw (the material arising when poppy straw has entered into a process for the concentration of its alkaloid when such material is made available in trade).

Desomorphine (dihydrodeoxymorphine)

Dextromoramide ((+)-4-[2-methyl-4-oxo-3, 3-diphenyl-4-(1-pyrrolidinyl)-butyl]-morpholine)

Diampromide (N-[(2-methylphenethylamino)-propyl]-propionanilide)

Diethylthiambutene (3-diethylamino-l, l-di-(2’-thienyl)-butene)

Difenoxin (1-(3-cyano-3, 3-diphenylpropyl)-4-phenylisonipecotic acid)

Dihydromorphine

Dimenoxadol (2-dimethylaminoethyl-l-ethoxy-l, l-diphenylacetate)

Dimepheptanol (6-dimethylamino-4, 4-diphenyl-3-heptanol)

Dimethylthiambutene (3-dimethylamino-l, l-di-(2’-thienyl)-1-butene)

Dioxaphetyl butyrate (ethyl-4-morpholino-2, 2-diphenylbutyrate)

Diphenoxylate (1-(3-cyano-3, 3-diphenylpropyl)-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Dipipanone (4, 4-diphenyl-6-piperidine-3-heptanone)

Drotebanol (3, 4-dimethoxy-17-methylmorphinan-6β, 14-diol)

Ecgonine, its esters and derivatives which are convertible to ecgonine and cocaine

Ethylmethylthiambutene (3-ethylmethylamino-l, l-di-(2’-thienyl)-l-butene)

Etonitazene (l-diethylaminoethyl-2-para-ethoxybenzyl-5-nitrobenzimidazole)

Etorphine (tetrahydro-7x-(l-hyroxyl-l-methylbutyl)-6, 14-endoetheno-oripavine)

Etoxeridine (1-[2-(2-hydroxyethoxy)-ethyl]-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Fentanyl (l-phenethyl-4-N-propionylanilinopiperidine)

Furethidine (1-(2-tetrahydrofurfuryloxyethyl)-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Heroin (diacetylmorphine)

Hydrocodone (dihydrocodeinone)

Hydromorphinol (14-hydroxydihydromorphine)

Hydromorphone (dihydromorphinone)

Hydroxypethidine (4-meta-hydroxyphenyl-l-methylpiperidine-4-carboxylic acid ethyl ester)

Isomethadone (6-dimethylamino-5-methyl-4, 4-diphenyl-3-hexanone)

Ketobemidone (4-meta-hydroxyphenyl-l-methyl-4-propionylpiperidine)

Levomethorphan* ((–)-3-methoxy-N-methylmorphinan)

Levomoramide ((–)-4-[2-methyl-4-oxo-3, 3-diphenyl-4-(l-pyrrolidinyl)-butyl]-morpholine)

Levophenancylmorphan ((–)-3-hydroxy-N-phenacylmorphinan)

Levorphanol* ((–)-3-hydroxy-N-methylmorphinan)

Metazocine (2’-hydroxy-2, 5, 9-trimethyl-6, 7-benzomorphan)

Methadone (6-dimethylamino-4, 4-diphenyl-3-heptanone)

Methadone-Intermediate (4-cyano-2-dimethylamino-4, 4-diphenylbutane)

Methyldesorphine (6-methyl-delta-6-deoxymorphine)

Methyldihydromorphine (6-methyldihydromorphine)

3-methylfentanyl (N-(3-methyl-l-phenethyl-4-piperidyl) propionanilide)

3-methylthiofentanyl (N [3-methyl-l-[2-(2-thienyl) ethyl]-4-piperidyl] propionanilide)

Metopon (5-methyldthydromorphinone)

Moramide-Intermediate (2-methyl-3-morpholino-l,l-diphenylpropane carboxylic acid)

Morpheridine (1-(2-morpholinoethyl)-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Morphine

Morphine Methobromide and other pentavalent nitrogen morphine derivatives, including in particular the morphine-N-oxide derivatives, one of which is Codeine-N-Oxide

Morphine-N-Oxide

MPPP (l-methyl-4-phenyl-4-piperidinol propionate (ester))

Myrophine (myristylbenzylmorphine)

Nicomorphine (3, 6-dinicotinylmorphine)

Noracymethadol ((±)-alpha-3-acetoxy-6-methylamine-4, 4-diphenylheptane)

Norlevorphanol ((–)-3-hydroxymorphinan)

Normethadone (6-dimethylamino-4, 4-diphenyl-3-hexanone)

Normorphine (demethylmorphine) or (N-demethylated morphine)

Norpipanone (4, 4-diphenyl-6-piperidino-3-hexanone)

Opium

Oxycodone (14-hydroxydihydrocodeinone)

Oxymorphone (14-hydroxydihydromorphinone)

Para-fluorofentanyl (4’-fluoro-N-(l-phenethyl-4-piperidyl) propionanilide)

PEPAP (l-phenethyl-4-phenyl-4-piperidinol acetate (ester)

Pethidine (l-methyl-4-phenylpiperidine-4-carboxylic acid ethyl ester)

Pethidine-Intermediate-A (4-cyano-l-methyl-4-phenylpiperidine)

Pethidine-Intermediate-B (4-phenylpiperidine-4-carboxylic acid ethyl ester)

Pethidine-Intermediate-C (l-methyl-4-phenylpiperidine-4-carboxylic acid)

Phenadoxone (6-morpholino-4, 4-diphenyl-3-heptanone)

Phenampromide (N-(l-methyl-2-piperidinoethyl)-propionanilide)

Phenazocine (2’-hydroxy-5, 9-dimethyl-2-phenethyl-6, 7-benzomorphan)

Phenomorphan (3-hydroxy-N-phenethylmorphinan)

Phenoperidine (l-(3-hydroxy-3-phenylpropyl)-4-phenylpiperidine-4-carboxylic acid ethyl)

Piminodine (4-phenyl-1-(3-phenylaminopropyl)-piperidine-4-carboxylic acid ethyl ester)

Piritramide (l-(3-cyano-3, 3-diphenylpropyl)-4-(l-piperidino)-piperidine-4-carboxylic acid amide)

Proheptazine (1, 3-dimethyl-4-phenyl-4-propionoxyazacycloheptane)

Properidine (l-methyl-4-phenylpiperidine-4-carboxylic acid isopropyl ester)

Racemethorphan ((±)-3-methoxy-N-methylmorphinan)

Racemoramide ((±)-4-[2-methyl-4-oxo-3,3-diphenyl-4-(l-pyrrolidinyl)-butyl]-morpholine)

Racemorphan ((±)-3-hydroxy-N-methylmorphinan)

Sufentanil (N-[4-(methoxymethyl)-l-[2-(2-thienyl)-ethyl]-4-piperidyl]-propionanilide)

Thebacon (acetyldihydrocodeinone)

Thebaine

Thiofentanyl (N-[1-[2-2-thienyl) ethyl-]-4-piperidyl] propionanilide)

Tilidine ((±)-ethyl-trans-2-(dimethylamino)-l-phenyl-3-cyclohexene-l-carboxylate)

Trimeperidine (1,2,5-trimethyl-4-phenyl-4-propionoxypiperidine); and

The isomers, unless specifically excepted, of the drugs in this Schedule whenever the existence of such isomers is possible within the specific chemical designation;

The esters and ethers, unless appearing in another Schedule, of the drugs in this Schedule whenever the existence of such esters or ethers is possible;

The salts of the drugs listed in this Schedule, including the salts of esters, ethers and isomers as provided above whenever the existence of such salts is possible.

Acetyldihydrocodeine

Codeine (3-methylmorphine)

Dextropropoxyphene (x-(+)-4-dimethylamino-1,2-diphenyl-3-methyl-2-butanol propionate)

Dihydrocodeine

Ethylmorphine (3-ethylmorphine)

Nicocodine (6-nicotinycodeine)

Nicodicodine (6-nicotinyldihydrocodeine)

Norcodeine (N-demethylcodeine)

Pholcodine (morpholinylethylmorphine)

Propiram (N-(1-methyl-2-piperidinoethyl)-N-2-pyridylpropionamide)

The isomers, unless specifically excepted, of the drugs in this Schedule whenever the existence of such isomers is possible within the specific chemical designation.

The salts of the drugs listed in this Schedule, including the salts of the isomers as provided above whenever the existence of such salts is possible.

SECOND SCHEDULE [Section 2.]

LIST OF PSYCHOTROPIC SUBSTANCES

NOTE: The names printed in capitals in the left-hand column are the International Non-proprietary Names (INN). Other non-proprietary or trivial names also are given where INN has yet been recommended or when such names are commonly applied to the substances. Also under international control are the salts of the substances listed in this Schedule, whenever the existence of such salts is possible.

THIRD SCHEDULE [Section 2(1).]

PROHIBITED PLANTS

1.

Cannabis.

2.

Coca bush.

3.

Papaver somniferum (opium poppy).

4.

Papaver setigerum.