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PART I – PRELIMINARY
| 1. |
Short title
This Act may be cited as the Proceeds of Crime and Anti-Money Laundering Act, 2009.
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| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“account” includes any facility or arrangement by which a reporting institution does any one or more of the following—
| (a) |
accepts deposits of monetary instruments;
|
| (b) |
allows withdrawals of monetary instruments or transfers into or out of the account;
|
| (c) |
pays cheques or payment orders drawn on a financial institution or collects cheques or payment orders on behalf of any person;
|
| (d) |
supplies a facility or arrangement for a safety or fixed term deposit box;
|
“accounting officer” means an accounting officer appointed under section 17 of the Government Financial Management Act, 2004 ( No. 5 of 2004);
“affected gift” means any gift made by the defendant at any time, if it was a gift of property—
| (a) |
received by that defendant in connection with an offence committed by him or any other person; or
|
| (b) |
any part thereof, which, directly or indirectly represents, in that defendant’s hands, the property which that person received in that connection with an offence:
|
Provided that any such gift was made on or after the commencement of this Act;
“Agency” means the Assets Recovery Agency established under section 53(1);
“Agency Director” means the Director of the Agency appointed under section 53(2);
“authorised officer” means—
| (b) |
an officer of the department of the Kenya Revenue Authority for the time being responsible for matters relating to customs;
|
| (d) |
any person or class of persons designated by the Minister as an authorised officer to perform any function under this Act;
|
“Board” means the Anti-Money Laundering Advisory Board established under section 49;
“Centre” means the Financial Reporting Centre established under section 21;
“confiscation order” means an order referred to in section 61;
“court” means a court of competent jurisdiction;
“customs” or “the customs” means the customs department of the Kenya Revenue Authority;
“data” means representations, in any form, of information or concepts;
“defendant” means a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;
“designated non-financial businesses or professions” means—
| (a) |
casinos (including internet casinos);
|
| (b) |
real estate agencies;
|
| (c) |
dealing in precious metals;
|
| (d) |
dealing in precious stones;
|
| (e) |
accountants, who are sole practitioners or are partners in their professional firms;
|
| (f) |
non-governmental organisations;
|
| (g) |
such other business or profession in which the risk of money laundering exists as the Minister may, on the advice of the Centre, declare;
|
“Deputy Director” means the Deputy Director appointed under section 25;
“Director” means the Director appointed under section 25;
“document” means any record of information, and includes—
| (a) |
anything on which there is writing;
|
| (b) |
anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them;
|
| (c) |
anything from which sounds, images, writings or data can be retrieved, with or without the aid of anything else; or
|
| (d) |
a map, plan, drawing, photograph, video tape or similar thing;
|
“estate agency” in connection with the selling, mortgaging, charging, letting or management of immovable property or of any house, shop or other building forming part thereof, means doing any of the following acts—
| (a) |
bringing together, or taking steps to bring together, a prospective vendor, lessor or lender and a prospective purchaser, lessee or borrower; or
|
| (b) |
negotiating the terms of sale, mortgage, charge or letting as an intermediary between or on behalf of either of the principals;
|
“financial institution” means any person or entity, which conducts as a business, one or more of the following activities or operations—
| (a) |
accepting deposits and other repayable funds from the public;
|
| (b) |
lending, including consumer credit, mortgage credit, factoring, with or without recourse, and financing of commercial transactions;
|
| (d) |
transferring of funds or value, by any means, including both formal and informal channels;
|
| (e) |
issuing and managing means of payment (such as credit and debit cards, cheques, travellers’ cheques, money orders and bankers’ drafts, and electronic money);
|
| (f) |
financial guarantees and commitments;
|
| (g) |
trading in—
| (i) |
money market instruments, including cheques, bills, certificates of deposit and derivatives;
|
| (iii) |
exchange, interest rate and index funds;
|
| (iv) |
transferable securities; and
|
| (v) |
commodity futures trading;
|
|
| (h) |
participation in securities issues and the provision of financial services related to such issues;
|
| (i) |
individual and collective portfolio management;
|
| (j) |
safekeeping and administration of cash or liquid securities on behalf of other persons;
|
| (k) |
otherwise investing, administering or managing funds or money on behalf of other persons;
|
| (l) |
underwriting and placement of life insurance and other investment related insurance; and
|
| (m) |
money and currency changing;
|
“fixed date”, in relation to a defendant against whom—
| (a) |
a prosecution for an offence has been instituted, means the date on which such prosecution has been instituted; or
|
| (b) |
a restraint order has been made against the defendant, means the date of such restraint order,
|
whichever is the earlier date;
“Fund” means the Criminal Assets Recovery Fund established under section 109;
“inspector” means a person designated as such under this Act;
“Kenya Revenue Authority” means the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act (Cap. 469);
“Minister” means the minister for the time being responsible for matters relating to finance;
“monetary instruments” means coins and paper currency of Kenya or of a foreign country designated as legal tender and which is customarily used and accepted as a medium of exchange in the country of issue;
“money laundering” means an offence under any of the provisions of sections 3, 4 and 7;
“offence” in this Act, means an offence against a provision of any law in Kenya, or an offence against a provision of any law in a foreign state for conduct which, if it occurred in Kenya, would constitute an offence against a provision of any law in Kenya;
“person” means any natural or legal person;
“proceeds of crime” means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains derived or realized from such property from the time the offence was committed;
“property” means all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;
“realizable property” means property referred to in section 57;
“regulations” means regulations made under this Act;
“reporting institution” means a financial institution and designated non-financial business and profession;
“restraint order” means an order made under section 68;
“supervisory body” means a functionary or institution specified in the First Schedule, or such other functionary or institution as may be prescribed by the Minister;
“tainted property” in relation to an offence means—
| (a) |
any property used in, or in connection with, the commission of the offence;
|
| (b) |
any proceeds of the offence; or
|
| (c) |
any property in Kenya which is the proceeds of a foreign offence in respect of which an order may be registered, and when used without reference to a particular offence means tainted property in relation to an arrestable offence.
|
|
| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“account” includes any facility or arrangement by which a reporting institution does any one or more of the following—
| (a) |
accepts deposits of monetary instruments;
|
| (b) |
allows withdrawals of monetary instruments or transfers into or out of the account;
|
| (c) |
pays cheques or payment orders drawn on a financial institution or collects cheques or payment orders on behalf of any person;
|
| (d) |
supplies a facility or arrangement for a safety or fixed term deposit box;
|
“accounting officer” means an accounting officer appointed under section 17 of the Government Financial Management Act, 2004 ( No. 5 of 2004);
“affected gift” means any gift made by the defendant at any time, if it was a gift of property—
| (a) |
received by that defendant in connection with an offence committed by him or any other person; or
|
| (b) |
any part thereof, which, directly or indirectly represents, in that defendant’s hands, the property which that person received in that connection with an offence:
|
Provided that any such gift was made on or after the commencement of this Act;
“Agency” means the Assets Recovery Agency established under section 53(1);
“Agency Director” means the Director of the Agency appointed under section 53(2);
“authorised officer” means—
| (b) |
an officer of the department of the Kenya Revenue Authority for the time being responsible for matters relating to customs;
|
| (d) |
any person or class of persons designated by the Minister as an authorised officer to perform any function under this Act;
|
“Board” means the Anti-Money Laundering Advisory Board established under section 49;
“Centre” means the Financial Reporting Centre established under section 21;
“confiscation order” means an order referred to in section 61;
“court” means a court of competent jurisdiction;
“customs” or “the customs” means the customs department of the Kenya Revenue Authority;
“data” means representations, in any form, of information or concepts;
“defendant” means a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;
“designated non-financial businesses or professions” means—
| (a) |
casinos (including internet casinos);
|
| (b) |
real estate agencies;
|
| (c) |
dealing in precious metals;
|
| (d) |
dealing in precious stones;
|
| (e) |
accountants, who are sole practitioners or are partners in their professional firms;
|
| (f) |
non-governmental organisations;
|
| (g) |
such other business or profession in which the risk of money laundering exists as the Minister may, on the advice of the Centre, declare;
|
“Deputy Director” means the Deputy Director appointed under section 25;
“Director” means the Director appointed under section 25;
“document” means any record of information, and includes—
| (a) |
anything on which there is writing;
|
| (b) |
anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them;
|
| (c) |
anything from which sounds, images, writings or data can be retrieved, with or without the aid of anything else; or
|
| (d) |
a map, plan, drawing, photograph, video tape or similar thing;
|
“estate agency” in connection with the selling, mortgaging, charging, letting or management of immovable property or of any house, shop or other building forming part thereof, means doing any of the following acts—
| (a) |
bringing together, or taking steps to bring together, a prospective vendor, lessor or lender and a prospective purchaser, lessee or borrower; or
|
| (b) |
negotiating the terms of sale, mortgage, charge or letting as an intermediary between or on behalf of either of the principals;
|
“financial institution” means any person or entity, which conducts as a business, one or more of the following activities or operations—
| (a) |
accepting deposits and other repayable funds from the public;
|
| (b) |
lending, including consumer credit, mortgage credit, factoring, with or without recourse, and financing of commercial transactions;
|
| (d) |
transferring of funds or value, by any means, including both formal and informal channels;
|
| (e) |
issuing and managing means of payment (such as credit and debit cards, cheques, travellers’ cheques, money orders and bankers’ drafts, and electronic money);
|
| (f) |
financial guarantees and commitments;
|
| (g) |
trading in—
| (i) |
money market instruments, including cheques, bills, certificates of deposit and derivatives;
|
| (iii) |
exchange, interest rate and index funds;
|
| (iv) |
transferable securities; and
|
| (v) |
commodity futures trading;
|
|
| (h) |
participation in securities issues and the provision of financial services related to such issues;
|
| (i) |
individual and collective portfolio management;
|
| (j) |
safekeeping and administration of cash or liquid securities on behalf of other persons;
|
| (k) |
otherwise investing, administering or managing funds or money on behalf of other persons;
|
| (l) |
underwriting and placement of life insurance and other investment related insurance; and
|
| (m) |
money and currency changing;
|
“fixed date”, in relation to a defendant against whom—
| (a) |
a prosecution for an offence has been instituted, means the date on which such prosecution has been instituted; or
|
| (b) |
a restraint order has been made against the defendant, means the date of such restraint order,
|
whichever is the earlier date;
“Fund” means the Criminal Assets Recovery Fund established under section 109;
“inspector” means a person designated as such under this Act;
“Kenya Revenue Authority” means the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act; (Cap. 469)
“Minister” means the minister for the time being responsible for matters relating to finance;
“monetary instruments” means—
| (a) |
coins and paper currency designated as legal tender of Kenya or of a foreign country and which is customarily used and accepted as a medium of exchange in Kenya or the country of issue;
|
| (b) |
travellers' cheques, personal cheques, bank cheques, money orders or securities;
|
| (c) |
any other negotiable instrument which is in bearer form, or other form through which title passes upon delivery;
|
“money laundering” means an offence under any of the provisions of sections 3, 4 and 7;
“offence” in this Act, means an offence against a provision of any law in Kenya, or an offence against a provision of any law in a foreign state for conduct which, if it occurred in Kenya, would constitute an offence against a provision of any law in Kenya;
“person” means any natural or legal person;
“proceeds of crime” means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;
“property” means all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;
“realizable property”means—
| (b) |
proceeds from or instrumentalities used in, or intended to be used in money laundering or predicate offences;
|
| (c) |
property that is the proceeds of, or used, or intended or allocated for use in, the financing of any offence; and
|
| (d) |
property of corresponding value;
|
“regulations” means regulations made under this Act;
“reporting institution” means a financial institution and designated non-financial business and profession;
“restraint order” means an order made under section 68;
“supervisory body” means a functionary or institution specified in the First Schedule, or such other functionary or institution as may be prescribed by the Minister;
“tainted property” in relation to an offence means—
| (a) |
any property used in, or in connection with, the commission of the offence;
|
| (b) |
any proceeds of the offence; or
|
| (c) |
any property in Kenya which is the proceeds of a foreign offence in respect of which an order may be registered, and when used without reference to a particular offence means tainted property in relation to an arrestable offence. [Act No. 51 of 2012, s. 2.]
|
|
| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“account” includes any facility or arrangement by which a reporting institution does any one or more of the following—
| (a) |
accepts deposits of monetary instruments;
|
| (b) |
allows withdrawals of monetary instruments or transfers into or out of the account;
|
| (c) |
pays cheques or payment orders drawn on a financial institution or collects cheques or payment orders on behalf of any person;
|
| (d) |
supplies a facility or arrangement for a safety or fixed term deposit box;
|
“accounting officer” means an accounting officer appointed under section 17 of the Government Financial Management Act, 2004 ( No. 5 of 2004);
“affected gift” means any gift made by the defendant at any time, if it was a gift of property—
| (a) |
received by that defendant in connection with an offence committed by him or any other person; or
|
| (b) |
any part thereof, which, directly or indirectly represents, in that defendant’s hands, the property which that person received in that connection with an offence:
|
Provided that any such gift was made on or after the commencement of this Act;
“Agency” means the Assets Recovery Agency established under section 53(1);
“Agency Director” means the Director of the Agency appointed under section 53(2);
“authorised officer” means—
| (b) |
an officer of the department of the Kenya Revenue Authority for the time being responsible for matters relating to customs;
|
| (d) |
any person or class of persons designated by the Minister as an authorised officer to perform any function under this Act;
|
“Board” means the Anti-Money Laundering Advisory Board established under section 49;
“Centre” means the Financial Reporting Centre established under section 21;
“confiscation order” means an order referred to in section 61;
“court” means a court of competent jurisdiction;
“customs” or “the customs” means the customs department of the Kenya Revenue Authority;
“data” means representations, in any form, of information or concepts;
“defendant” means a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;
“designated non-financial businesses or professions” means—
| (a) |
casinos (including internet casinos);
|
| (b) |
real estate agencies;
|
| (c) |
dealing in precious metals;
|
| (d) |
dealing in precious stones;
|
| (e) |
accountants, who are sole practitioners or are partners in their professional firms;
|
| (f) |
non-governmental organisations;
|
| (g) |
such other business or profession in which the risk of money laundering exists as the Minister may, on the advice of the Centre, declare;
|
“Deputy Director” means the Deputy Director appointed under section 25;
“Director” means the Director appointed under section 25;
“document” means any record of information, and includes—
| (a) |
anything on which there is writing;
|
| (b) |
anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them;
|
| (c) |
anything from which sounds, images, writings or data can be retrieved, with or without the aid of anything else; or
|
| (d) |
a map, plan, drawing, photograph, video tape or similar thing;
|
“estate agency” in connection with the selling, mortgaging, charging, letting or management of immovable property or of any house, shop or other building forming part thereof, means doing any of the following acts—
| (a) |
bringing together, or taking steps to bring together, a prospective vendor, lessor or lender and a prospective purchaser, lessee or borrower; or
|
| (b) |
negotiating the terms of sale, mortgage, charge or letting as an intermediary between or on behalf of either of the principals;
|
“financial institution” means any person or entity, which conducts as a business, one or more of the following activities or operations—
| (a) |
accepting deposits and other repayable funds from the public;
|
| (b) |
lending, including consumer credit, mortgage credit, factoring, with or without recourse, and financing of commercial transactions;
|
| (d) |
transferring of funds or value, by any means, including both formal and informal channels;
|
| (e) |
issuing and managing means of payment (such as credit and debit cards, cheques, travellers’ cheques, money orders and bankers’ drafts, and electronic money);
|
| (f) |
financial guarantees and commitments;
|
| (g) |
trading in—
| (i) |
money market instruments, including cheques, bills, certificates of deposit and derivatives;
|
| (iii) |
exchange, interest rate and index funds;
|
| (iv) |
transferable securities; and
|
| (v) |
commodity futures trading;
|
|
| (h) |
participation in securities issues and the provision of financial services related to such issues;
|
| (i) |
individual and collective portfolio management;
|
| (j) |
safekeeping and administration of cash or liquid securities on behalf of other persons;
|
| (k) |
otherwise investing, administering or managing funds or money on behalf of other persons;
|
| (l) |
underwriting and placement of life insurance and other investment related insurance; and
|
| (m) |
money and currency changing;
|
“fixed date”, in relation to a defendant against whom—
| (a) |
a prosecution for an offence has been instituted, means the date on which such prosecution has been instituted; or
|
| (b) |
a restraint order has been made against the defendant, means the date of such restraint order,
|
whichever is the earlier date;
“Fund” means the Criminal Assets Recovery Fund established under section 109;
“inspector” means a person designated as such under this Act;
“Kenya Revenue Authority” means the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act; (Cap. 469)
“Minister” means the Cabinet Secretary for the time being responsible for matters relating to finance, and all references in this Act to “the Minister” shall be construed accordingly;
“monetary instruments” means—
| (a) |
coins and paper currency designated as legal tender of Kenya or of a foreign country and which is customarily used and accepted as a medium of exchange in Kenya or the country of issue;
|
| (b) |
travellers' cheques, personal cheques, bank cheques, money orders or securities;
|
| (c) |
any other negotiable instrument which is in bearer form, or other form through which title passes upon delivery;
|
“money laundering” means an offence under any of the provisions of sections 3, 4 and 7;
“offence” in this Act, means an offence against a provision of any law in Kenya, or an offence against a provision of any law in a foreign state for conduct which, if it occurred in Kenya, would constitute an offence against a provision of any law in Kenya;
“person” means any natural or legal person;
“proceeds of crime” means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;
“property” means all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;
“realizable property” means—
| (b) |
proceeds from or instrumentalities used in, or intended to be used in money laundering or predicate offences;
|
| (c) |
property that is the proceeds of, or used, or intended or allocated for use in, the financing of any offence; and
|
| (d) |
property of corresponding value;
|
“regulations” means regulations made under this Act;
“reporting institution” means a financial institution and designated non-financial business and profession;
“restraint order” means an order made under section 68;
“supervisory body” means a functionary or institution specified in the First Schedule, or such other functionary or institution as may be prescribed by the Minister;
“tainted property” in relation to an offence means—
| (a) |
any property used in, or in connection with, the commission of the offence;
|
| (b) |
any proceeds of the offence; or
|
| (c) |
any property in Kenya which is the proceeds of a foreign offence in respect of which an order may be registered, and when used without reference to a particular offence means tainted property in relation to an arrestable offence.
|
|
| 2. |
Interpretation
In this Act, unless the context otherwise requires—
“account” includes any facility or arrangement by which a reporting institution does any one or more of the following—
| (a) |
accepts deposits of monetary instruments;
|
| (b) |
allows withdrawals of monetary instruments or transfers into or out of the account;
|
| (c) |
pays cheques or payment orders drawn on a financial institution or collects cheques or payment orders on behalf of any person;
|
| (d) |
supplies a facility or arrangement for a safety or fixed term deposit box;
|
“accounting officer” means an accounting officer appointed under section 17 of the Government Financial Management Act, 2004 ( No. 5 of 2004);
“affected gift” means any gift made by the defendant at any time, if it was a gift of property—
| (a) |
received by that defendant in connection with an offence committed by him or any other person; or
|
| (b) |
any part thereof, which, directly or indirectly represents, in that defendant’s hands, the property which that person received in that connection with an offence:
|
Provided that any such gift was made on or after the commencement of this Act;
“Agency” means the Assets Recovery Agency established under section 53(1);
“Agency Director” means the Director of the Agency appointed under section 53(2);
“authorised officer” means—
| (b) |
an officer of the department of the Kenya Revenue Authority for the time being responsible for matters relating to customs;
|
| (d) |
any person or class of persons designated by the Minister as an authorised officer to perform any function under this Act;
|
“Board” means the Anti-Money Laundering Advisory Board established under section 49;
“Centre” means the Financial Reporting Centre established under section 21;
“confiscation order” means an order referred to in section 61;
“court” means a court of competent jurisdiction;
“customs” or “the customs” means the customs department of the Kenya Revenue Authority;
“data” means representations, in any form, of information or concepts;
“defendant” means a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;
“designated non-financial businesses or professions” means—
| (a) |
casinos (including internet casinos);
|
| (b) |
real estate agencies;
|
| (c) |
dealing in precious metals;
|
| (d) |
dealing in precious stones;
|
| (e) |
accountants, who are sole practitioners or are partners in their professional firms;
|
| (f) |
non-governmental organisations;
|
| (g) |
such other business or profession in which the risk of money laundering exists as the Minister may, on the advice of the Centre, declare;
|
“Deputy Director” means the Deputy Director appointed under section 25;
“Director-General” means the Director-General appointed under section 25;
“document” means any record of information, and includes—
| (a) |
anything on which there is writing;
|
| (b) |
anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them;
|
| (c) |
anything from which sounds, images, writings or data can be retrieved, with or without the aid of anything else; or
|
| (d) |
a map, plan, drawing, photograph, video tape or similar thing;
|
“estate agency” in connection with the selling, mortgaging, charging, letting or management of immovable property or of any house, shop or other building forming part thereof, means doing any of the following acts—
| (a) |
bringing together, or taking steps to bring together, a prospective vendor, lessor or lender and a prospective purchaser, lessee or borrower; or
|
| (b) |
negotiating the terms of sale, mortgage, charge or letting as an intermediary between or on behalf of either of the principals;
|
“financial institution” means any person or entity, which conducts as a business, one or more of the following activities or operations—
| (a) |
accepting deposits and other repayable funds from the public;
|
| (b) |
lending, including consumer credit, mortgage credit, factoring, with or without recourse, and financing of commercial transactions;
|
| (d) |
transferring of funds or value, by any means, including both formal and informal channels;
|
| (e) |
issuing and managing means of payment (such as credit and debit cards, cheques, travellers’ cheques, money orders and bankers’ drafts, and electronic money);
|
| (f) |
financial guarantees and commitments;
|
| (g) |
trading in—
| (i) |
money market instruments, including cheques, bills, certificates of deposit and derivatives;
|
| (iii) |
exchange, interest rate and index funds;
|
| (iv) |
transferable securities; and
|
| (v) |
commodity futures trading;
|
|
| (h) |
participation in securities issues and the provision of financial services related to such issues;
|
| (i) |
individual and collective portfolio management;
|
| (j) |
safekeeping and administration of cash or liquid securities on behalf of other persons;
|
| (k) |
otherwise investing, administering or managing funds or money on behalf of other persons;
|
| (l) |
underwriting and placement of life insurance and other investment related insurance; and
|
| (m) |
money and currency changing;
|
“fixed date”, in relation to a defendant against whom—
| (a) |
a prosecution for an offence has been instituted, means the date on which such prosecution has been instituted; or
|
| (b) |
a restraint order has been made against the defendant, means the date of such restraint order,
|
whichever is the earlier date;
“Fund” means the Criminal Assets Recovery Fund established under section 109;
“inspector” means a person designated as such under this Act;
“Kenya Revenue Authority” means the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act; (Cap. 469)
“Minister” means the Cabinet Secretary for the time being responsible for matters relating to finance, and all references in this Act to “the Minister” shall be construed accordingly;
“monetary instruments” means—
| (a) |
coins and paper currency designated as legal tender of Kenya or of a foreign country and which is customarily used and accepted as a medium of exchange in Kenya or the country of issue;
|
| (b) |
travellers' cheques, personal cheques, bank cheques, money orders or securities;
|
| (c) |
any other negotiable instrument which is in bearer form, or other form through which title passes upon delivery;
|
“money laundering” means an offence under any of the provisions of sections 3, 4 and 7;
“offence” in this Act, means an offence against a provision of any law in Kenya, or an offence against a provision of any law in a foreign state for conduct which, if it occurred in Kenya, would constitute an offence against a provision of any law in Kenya;
“person” means any natural or legal person;
“proceeds of crime” means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;
“property” means all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;
“realizable property” means—
| (b) |
proceeds from or instrumentalities used in, or intended to be used in money laundering or predicate offences;
|
| (c) |
property that is the proceeds of, or used, or intended or allocated for use in, the financing of any offence; and
|
| (d) |
property of corresponding value;
|
“regulations” means regulations made under this Act;
“reporting institution” means a financial institution and designated non-financial business and profession;
“restraint order” means an order made under section 68;
“supervisory body” means a functionary or institution specified in the First Schedule, or such other functionary or institution as may be prescribed by the Minister;
“tainted property” in relation to an offence means—
| (a) |
any property used in, or in connection with, the commission of the offence;
|
| (b) |
any proceeds of the offence; or
|
| (c) |
any property in Kenya which is the proceeds of a foreign offence in respect of which an order may be registered, and when used without reference to a particular offence means tainted property in relation to an arrestable offence.
|
|
PART II – MONEY LAUNDERING AND RELATED OFFENCES
| 3. |
Money laundering
A person who knows or who ought reasonably to have known that property is or forms part of the proceeds of crime and—
| (a) |
enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether that agreement, arrangement or transaction is legally enforceable or not; or
|
| (b) |
performs any other act in connection with such property, whether it is performed independently or with any other person,
whose effect is to—
| (i) |
conceal or disguise the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof; or |
| (ii) |
enable or assist any person who has committed or commits an offence, whether in Kenya or elsewhere to avoid prosecution; or |
| (iii) |
remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence, |
|
|
| 4. |
Acquisition, possession or use of proceeds of crime
property and who, at the time of acquisition, use or possession of such property, knows or ought reasonably to have known that it is or forms part of the proceeds of a crime committed by another person, commits an offence.
|
| 4. |
Acquisition, possession or use of proceeds of crime
property and who, at the time of acquisition, use or possession of such property, knows or ought reasonably to have known that it is or forms part of the proceeds of a crime committed by him or by another person, commits an offence. [Act No. 51 of 2012, s. 3.]
|
| 5. |
Failure to report suspicion regarding proceeds of crime
A person who wilfully fails to comply with an obligation contemplated in section 44(2) commits an offence.
|
| 6. |
Defence
If a person is charged with committing an offence under section 3, 4 or 5, that person may raise as a defence the fact that he had reported a suspicion under the terms and conditions set forth in section 44 or, if the person is an employee of a reporting institution, that he has reported information pursuant to section 47(a).
|
| 7. |
Financial promotion of an offence
A person who, knowingly transports, transmits, transfers or receives or attempts to transport, transmit, transfer or receive a monetary instrument or anything of value to another person, with intent to commit an offence, that person commits an offence.
|
| 8. |
Tipping off
| (1) |
| (i) |
knows or ought reasonably to have known that a report under section 44 is being prepared or has been or is about to be sent to the Centre; and |
| (ii) |
discloses to another person information or other matters which are likely to prejudice any investigation of an offence or possible offence of money-laundering, |
|
| (2) |
In proceedings for an offence under this section, it is a defence to prove that the person did not know or have reasonable grounds to suspect that the disclosure was likely to prejudice any investigation of an offence or possible offence of money-laundering.
|
|
| 8. |
Tipping off
| (1) |
| (i) |
knows or ought reasonably to have known that a report under section 44 is being prepared or has been or is about to be sent to the Centre; and |
| (ii) |
discloses to another person information or other matters relating to a report made under paragraph (i). |
|
| (2) |
In proceedings for an offence under this section, it is a defence to prove that the person did not know or have reasonable grounds to suspect that the disclosure was likely to prejudice a report made under subsection (1). [Act No. 51 of 2012, s. 4.]
|
|
| 9. |
Misrepresentation
A person who knowingly makes a false, fictitious or fraudulent statement or representation, or makes, or provides, any false document, knowing the same to contain any false, fictitious or fraudulent statement or entry, to a reporting institution, or to a supervisory body or to the Centre, commits an offence.
|
| 10. |
Malicious reporting
Any person who wilfully gives any information to the Centre or an authorised officer knowing such information to be false commits an offence.
|
| 11. |
Failure to comply with the provisions of this Act
| (1) |
A reporting institution that fails to comply with any of the requirements of sections 44, 45 and 46, or of any regulations, commits an offence.
|
| (2) |
In determining whether a person has complied with any requirement of the provisions referred to in subsection (1), the court shall have regard to all the circumstances of the case, including such custom and practice as may, from time to time, be current in the relevant trade, business, profession or employment, and may take account of any relevant guidance adopted or approved by a public authority exercising supervisory functions in relation to that person, or any other body that regulates or is representative of the trade, business, profession or employment carried on by that person.
|
|
| 12. |
Conveyance of monetary instruments to or from Kenya
| (1) |
A person intending to convey monetary instruments in excess of the amount prescribed in the Second Schedule to or from Kenya shall, before so doing, report the particulars concerning that conveyance to a person authorised by the regulations for that purpose.
|
| (2) |
A person authorised to receive a report made in subsection (1) shall, without delay, send a copy of the report to the Centre.
|
| (3) |
A person who wilfully fails to report the conveyance of monetary instruments into or out of Kenya, or materially misrepresents the amount of monetary instruments reported in accordance with the requirements of subsection (1) commits an offence.
|
| (4) |
Any monetary instrument used in a suspected violation of subsection (3), or which an authorised officer has reasonable grounds to suspect is tainted property, may be temporarily seized by an authorised officer for as long as is necessary to obtain a court order pursuant to section 68 or 82, but not later than five days.
|
| (5) |
An authorised officer making a temporary seizure under subsection (4) shall give the person from whom the monetary instruments are seized—
| (a) |
| (i) |
the name, agency, rank of the seizing officer; |
| (ii) |
contact information for that officer and agency; |
| (iii) |
time, date and location of seizure; |
| (iv) |
description (including serial numbers) of the value of and types of instruments seized; and |
|
| (b) |
a formal notice of the authorised officer’s intent to initiate forfeiture proceedings under this Act against the seized monetary instruments.
|
|
| (6) |
An authorised officer, other than Agency Director, shall immediately but not later than five days surrender monetary instruments seized under subsection (4) to the Agency Director in such manner as the Agency Director may direct.
|
| (7) |
If the authorised officer fails to obtain an order under section 68 or 82 against the temporarily seized monetary instruments within five days from the date of seizure pursuant to subsection (4), then, unless that period is otherwise extended by the Court, the monetary instruments shall be returned forthwith to the person from whom it was taken.
|
|
| 12. |
Conveyance of monetary instruments to or from Kenya
| (1) |
A person intending to convey monetary instruments in excess of the amount prescribed in the Second Schedule to or from Kenya shall, before so doing, report the particulars concerning that conveyance to a person authorised by the regulations for that purpose.
|
| (2) |
A person authorised to receive a report made in subsection (1) shall, without delay, send a copy of the report to the Centre.
|
| (3) |
A person who wilfully fails to report the conveyance of monetary instruments into or out of Kenya, or materially misrepresents the amount of monetary instruments reported in accordance with the requirements of subsection (1) commits an offence.
|
| (4) |
Any monetary instrument used in a suspected violation of subsection (3), or which an authorised officer has reasonable grounds to suspect is tainted property, may be temporarily seized by an authorised officer for as long as is necessary to obtain a court order pursuant to section 68 or 82, but not later than five days.
|
| (5) |
An authorised officer making a temporary seizure under subsection (4) shall give the person from whom the monetary instruments are seized—
| (a) |
| (i) |
the name, agency, rank of the seizing officer; |
| (ii) |
contact information for that officer and agency; |
| (iii) |
time, date and location of seizure; |
| (iv) |
description (including serial numbers) of the value of and types of instruments seized; and |
|
| (b) |
a formal notice of the authorised officer’s intent to initiate forfeiture proceedings under this Act against the seized monetary instruments.
|
|
| (5A) |
An authorised officer shall, upon discovery of a false declaration or disclosure of monetary instruments or a failure to declare or disclose them, enquire from the person in whose possession the monetary instruments are found the origin thereof and their intended use, and shall record the same in writing signed by the person in possession of the monetary instruments and countersigned by himself.
|
| (5B) |
The authorized officer shall indicate in the prescribed form—
| (a) |
the amount comprised in the monetary instruments declared or disclosed; and
|
| (b) |
the identity of the bearer of the monetary instruments,
|
and such information shall be retained for not less than seven years.
|
| (5C) |
The information provided under subsection (5B) shall be used by the appropriate authorities when—
| (a) |
the subsequent declaration by the same person exceeds the prescribed threshold specified in the Fourth Schedule; or
|
| (b) |
there is false declaration; or
|
| (c) |
there is suspicion of the commission of any other offence.
|
|
| (6) |
An authorised officer, other than Agency Director, shall immediately but not later than five days surrender monetary instruments seized under subsection (4) to the Agency Director in such manner as the Agency Director may direct.
|
| (7) |
If the authorised officer fails to obtain an order under section 68 or 82 against the temporarily seized monetary instruments within five days from the date of seizure pursuant to subsection (4), then, unless that period is otherwise extended by the Court, the monetary instruments shall be returned forthwith to the person from whom it was taken. [Act No. 51 of 2012, s. 5.]
|
|
| 13. |
Misuse of information
| (1) |
A person who knows or ought reasonably to have known—
| (a) |
that information has been disclosed under the provisions of Part II; or
|
|
| (b) |
that an investigation is being, or may be, conducted as a result of such a disclosure,
|
and directly or indirectly alerts, or brings information to the attention of another person who will or is likely to prejudice such an investigation, commits an offence.
|
| 14. |
Failure to comply with order of court
A person who intentionally refuses or fails to comply with an order of a court made under this Act, commits an offence.
|
| 15. |
Hindering a person in performance of functions under this Act
A person who hinders a receiver, a police officer or any other person in the exercise, performance or carrying out of their powers, functions or duties under this Act, commits an offence.
|
| 16. |
Penalties
| (1) |
A person who contravenes any of the provisions of sections 3, 4, or 7 is on conviction liable—
| (a) |
in the case of a natural person, to imprisonment for a term not exceeding fourteen years, or a fine not exceeding five million shillings or the amount of the value of the property involved in the offence, whichever is the higher, or to both the fine and imprisonment; and
|
| (b) |
in the case of a body corporate, to a fine not exceeding twenty-five million shillings, or the amount of the value of the property involved in the offence, whichever is the higher.
|
|
| (2) |
A person who contravenes any of the provisions of sections 5, 8 or 13 is on conviction liable—
| (a) |
in the case of a natural person, to imprisonment for a term not exceeding seven years, or a fine not exceeding two million, five hundred thousand shillings, or to both; and
|
| (b) |
in the case of a body corporate, to a fine not exceeding ten million shillings or the amount of the value of the property involved in the offence, whichever is the higher.
|
|
| (3) |
A person who contravenes any of the provisions of section 12(3) is on conviction, liable to a fine not exceeding ten per cent of the amount of the monetary instruments involved in the offence.
|
| (4) |
A person who contravenes the provisions of section 9, 10 or 14 is on conviction liable—
| (a) |
in the case of a natural person, to imprisonment for a term not exceeding two years, or a fine not exceeding one million shillings, or to both; and
|
| (b) |
in the case of a body corporate, to a fine not exceeding five million shillings or the amount of the value of the property involved in the offence, whichever is the higher.
|
|
| (5) |
A person who contravenes the provisions of section 11(1) is on conviction liable to a fine not exceeding ten percent of the amount of the monetary instruments involved in the offence.
|
| (6) |
Where any offence under this Part is committed by a body corporate with the consent or connivance of any director, manager, secretary or any other officer of the body corporate, or any person purporting to act in such capacity, that person, as well as the body corporate, shall be prosecuted in accordance with the provisions of this Act.
|
|
| 16. |
Penalties
| (1) |
A person who contravenes any of the provisions of sections 3, 4 or 7 is on conviction liable—
| (a) |
in the case of a natural person, to imprisonment for a term not exceeding fourteen years, or a fine not exceeding five million shillings or the amount of the value of the property involved in the offence, whichever is the higher, or to both the fine and imprisonment; and
|
| (b) |
in the case of a body corporate, to a fine not exceeding twenty-five million shillings, or the amount of the value of the property involved in the offence, whichever is the higher.
|
|
| (2) |
A person who contravenes any of the provisions of sections 5, 8, 11(1) or 13 is on conviction liable—
| (a) |
in the case of a natural person, to imprisonment for a term not exceeding seven years, or a fine not exceeding two million, five hundred thousand shillings, or to both and
|
| (b) |
in the case of a body corporate, to a fine not exceeding ten million shillings or the amount of the value of the property involved in the offence, whichever is the higher.
|
|
| (3) |
A person who contravenes any of the provisions of section 12(3) is on conviction, liable to a fine not exceeding ten per cent of the amount of the monetary instruments involved in the offence.
|
| (4) |
A person who contravenes the provisions of section 9, 10 or 14 is on conviction liable—
| (a) |
in the case of a natural person, to imprisonment for a term not exceeding two years, or a fine not exceeding one million shillings, or to both and
|
| (b) |
in the case of a body corporate, to a fine not exceeding five million shillings or the amount of the value of the property involved in the offence, whichever is the higher.
|
|
| (5) |
Deleted by Act No. 51 of 2012, s. 6.
|
| (6) |
Where any offence under this Part is committed by a body corporate with the consent or connivance of any director, manager, secretary or any other officer of the body corporate, or any person purporting to act in such capacity, that person, as well as the body corporate, shall be prosecuted in accordance with the provisions of this Act. [Act No. 51 of 2012, s. 6.]
|
|
| 17. |
Secrecy obligations overridden
| (1) |
The provisions of this Act shall override any obligation as to secrecy or other restriction on disclosure of information imposed by any other law or otherwise.
|
| (2) |
No liability based on a breach of an obligation as to secrecy or any restriction on the disclosure of information, whether imposed by any law, the common law or any agreement, shall arise from a disclosure of any information in compliance with any obligation imposed by this Act:
Provided that the information being sought under subsection (1) relates to commission of or attempt to commit an offence under this Act.
|
|
| 17. |
Secrecy obligations overridden
| (1) |
The provisions of this Act shall override any obligation as to secrecy or other restriction on disclosure of information imposed by any other law or otherwise.
|
| (2) |
No liability based on a breach of an obligation as to secrecy or any restriction on the disclosure of information, whether imposed by any law, the common law or any agreement, shall arise from a disclosure of any information in compliance with any obligation imposed by this Act. [Act No. 51 of 2012, s. 7.]
|
|
| 18. |
Client advocate relationship
| (1) |
Notwithstanding the provisions of section 17, nothing in this Act shall affect or be deemed to affect the relationship between an advocate and his client with regard to communication of privileged information between the advocate and the client.
|
| (2) |
The provisions of subsection (1) shall only apply in connection with the giving of advice to the client in the course and for purposes of the professional employment of the advocate or in connection and for the purpose of any legal proceedings on behalf of the client.
|
| (3) |
Notwithstanding any other law, a Judge of the High Court may, on application being made to him in relation to an investigation under this Act, order an advocate to disclose information available to him in respect of any transaction or dealing relating to the matter under investigation.
|
| (4) |
Nothing in subsection (3) shall require an advocate to comply with an order under that subsection to the extent that such compliance would be in breach of subsection (2).
|
|
| 19. |
Immunity where actions are exercised in good faith
A suit, prosecution or other legal proceedings shall not lie against any reporting institution or Government entity, or any officer, partner or employee thereof, or any other person in respect of anything done by or on behalf of that person with due diligence and in good faith, in the exercise of any power or the performance of any function or the exercise of any obligation under this Act.
|
| 20. |
Protection of information and informers
| (1) |
Where any information relating to an offence under this Act is received by the Centre or an authorised officer, the information and the identity of the person giving the information shall be kept confidential.
|
| (2) |
Subsection (1) shall not apply to information and identity of a person giving the information—
| (a) |
where it is for the purposes of assisting the Centre or the authorised officer to carry out their functions as stated under this Act; or
|
| (b) |
with regard to a witness in any civil or criminal proceedings—
| (i) |
for the purposes of this Act; or |
| (ii) |
where the court is of the opinion that justice cannot fully be done between the parties without revealing the disclosure or the identity of any person as the person making the disclosure. |
|
|
|
PART III – FINANCIAL REPORTING CENTRE
| 21. |
Establishment of a Financial Reporting Centre
There is established a centre to be known as the Financial Reporting Centre, (hereinafter referred to as the “Centre”) which shall be a body corporate, with perpetual succession and a common seal and shall be capable, in its corporate name, of—
| (b) |
taking, purchasing or otherwise acquiring, holding or disposing of movable and immovable property;
|
| (d) |
doing or performing such other things or acts necessary for the proper performance of its functions under this Act which may lawfully be done by a body corporate.
|
|
| 22. |
Headquarters
The headquarters of the Centre shall be in Nairobi.
|
| 23. |
Objectives of the Centre
| (1) |
The principal objective of the Centre is to assist in the identification of the proceeds of crime and the combating of money laundering.
|
| (2) |
Without prejudice to subsection (1), the Centre shall—
| (a) |
make information collected by it available to investigating authorities, supervisory bodies and any other bodies relevant to facilitate the administration and enforcement of the laws of Kenya;
|
| (b) |
exchange information with similar bodies in other countries regarding money laundering activities and related offences; and
|
| (c) |
ensure compliance with international standards and best practice in anti-money laundering measures.
|
|
|
| 23. |
Objectives of the Centre
| (1) |
The principal objective of the Centre is to assist in the identification of the proceeds of crime and the combating of money laundering and the financing of terrorism.
|
| (2) |
Without prejudice to subsection (1), the Centre shall—
| (a) |
make information collected by it available to investigating authorities, supervisory bodies and any other bodies relevant to facilitate the administration and enforcement of the laws of Kenya;
|
| (b) |
exchange information with similar bodies in other countries regarding money laundering activities and related offences; and
|
| (c) |
ensure compliance with international standards and best practice in anti-money laundering measures.
|
|
|
| 24. |
Functions and powers of the Centre
| (a) |
shall receive and analyse reports of unusual or suspicious transactions made by reporting institution pursuant to section 11 and all reports made pursuant to section 44;
|
| (b) |
shall send reports received under this Act to the appropriate law enforcement authorities, any intelligence agency, or any other appropriate supervisory body for further handling if, having considered the report, the Director also has reasonable grounds to suspect that the transaction is suspicious;
|
| (c) |
may, at any time, cause an inspection to be made by an inspector authorised by the Director in writing and the inspector may enter the premises of any reporting institution during ordinary business hours to inspect any documents kept pursuant to the requirements of this Act, and ask any question relating to such documents, make notes and take copies of the whole or any part of such documents;
|
| (d) |
shall send to the appropriate law enforcement authorities, intelligence agency, or supervisory body any information derived from an inspection carried out pursuant to paragraph (c), if such inspection gives the Director reasonable grounds to suspect that a transaction involves proceeds of crime or money laundering;
|
| (e) |
may instruct any reporting institution to take such steps as may be appropriate to facilitate any investigation undertaken or to be undertaken by the Centre, including providing documents and other relevant information;
|
| (f) |
may compile statistics and records, disseminate information within Kenya or elsewhere, and make recommendations arising out of any information received, issue guidelines to reporting institution and advise the Minister;
|
| (g) |
shall design training requirements and may provide such training for any reporting institution in respect of transactions, record-keeping and reporting obligations in accordance with the provisions of this Act;
|
| (h) |
may consult with any relevant person, institution or organization for the purpose of exercising the powers or duties under this Act;
|
| (i) |
may, from time to time, publish in the Gazette such information as may be prescribed by the Minister;
|
| (j) |
shall create and maintain a database of all reports of suspicious transactions, related Government information and such other materials as the Director may from time to determine to be relevant to the work of the Centre;
|
| (k) |
may provide information relating to the commission of an offence to any foreign financial intelligence unit or appropriate foreign law enforcement authority, subject to any conditions as may be considered appropriate by the Director;
|
| (l) |
may, on the basis of mutual agreement and reciprocity, enter into any agreement or arrangement, in writing, with a foreign financial intelligence unit which the Director considers necessary or desirable for the discharge or performance of the functions of the Centre:
Provided that the Director is satisfied, on a case by case basis, that the foreign financial intelligence unit has given appropriate undertakings—
| (i) |
for protecting the confidentiality of anything communicated to it; and |
| (ii) |
for controlling the use that will be made of such information; |
|
| (m) |
shall draft the regulations required by this Act, in consultation with the Board, for submission to the Minister for his approval, prior to publication in the Gazette;
|
| (n) |
shall set anti-money laundering policies in consultation with the Board;
|
| (o) |
shall maintain proper books of accounts;
|
| (p) |
shall engage in any lawful activity, whether alone or together with any other organization in Kenya or elsewhere, aimed at promoting its objectives; and
|
| (q) |
shall perform such other functions in relation to money laundering as the Minister may direct.
|
| (r) |
shall have all the powers necessary or expedient for the proper performance of its functions.
|
|
| 24. |
Functions and powers of the Centre
| (a) |
shall receive and analyse reports of unusual or suspicious transactions made by reporting institution pursuant to section 12 and all reports made pursuant to section 44;
|
| (b) |
shall send reports received under this Act to the appropriate law enforcement authorities, any intelligence agency, or any other appropriate supervisory body for further handling if, having considered the report, the Director also has reasonable grounds to suspect that the transaction is suspicious;
|
| (c) |
may, at any time, cause an inspection to be made by an inspector authorised by the Director in writing and the inspector may enter the premises of any reporting institution during ordinary business hours to inspect any documents kept pursuant to the requirements of this Act, and ask any question relating to such documents, make notes and take copies of the whole or any part of such documents;
|
| (d) |
shall send to the appropriate law enforcement authorities, intelligence agency, or supervisory body any information derived from an inspection carried out pursuant to paragraph (c), if such inspection gives the Director reasonable grounds to suspect that a transaction involves proceeds of crime or money laundering;
|
| (e) |
may instruct any reporting institution to take such steps as may be appropriate to facilitate any investigation undertaken or to be undertaken by the Centre, including providing documents and other relevant information;
|
| (f) |
may compile statistics and records, disseminate information within Kenya or elsewhere, and make recommendations arising out of any information received, issue guidelines to reporting institution and advise the Minister;
|
| (g) |
shall design training requirements and may provide such training for any reporting institution in respect of transactions, record-keeping and reporting obligations in accordance with the provisions of this Act;
|
| (h) |
may consult with any relevant person, institution or organization for the purpose of exercising the powers or duties under this Act;
|
| (i) |
may, from time to time, publish in the Gazette such information as may be prescribed by the Minister;
|
| (j) |
shall create and maintain a database of all reports of suspicious transactions, related Government information and such other materials as the Director may from time to determine to be relevant to the work of the Centre;
|
| (k) |
may provide information relating to the commission of an offence to any foreign financial intelligence unit or appropriate foreign law enforcement authority, subject to any conditions as may be considered appropriate by the Director;
|
| (l) |
may, on the basis of mutual agreement and reciprocity, enter into any agreement or arrangement, in writing, with a foreign financial intelligence unit which the Director considers necessary or desirable for the discharge or performance of the functions of the Centre:
Provided that the Director is satisfied, on a case by case basis, that the foreign financial intelligence unit has given appropriate undertakings—
| (i) |
for protecting the confidentiality of anything communicated to it; and |
| (ii) |
for controlling the use that will be made of such information. |
|
| (m) |
shall draft the regulations required by this Act, in consultation with the Board, for submission to the Minister for his approval, prior to publication in the Gazette;
|
| (n) |
shall set anti-money laundering policies in consultation with the Board;
|
| (o) |
shall maintain proper books of accounts;
|
| (oo) |
shall have power to compel the production of, or to obtain access to all records, documents or information relevant to monitoring compliance outside the scope of onsite inspection.
|
| (p) |
shall engage in any lawful activity, whether alone or together with any other organization in Kenya or elsewhere, aimed at promoting its objectives; and
|
| (q) |
shall perform such other functions in relation to money laundering as the Minister may direct.
|
| (r) |
The Centre may request any supervisory body, monetary authority, financial regulatory authority, fiscal or tax agency, or fraud investigations agency to provide it with information where such information is reasonably required for the proper discharge of the functions of the Centre under this Act or for purposes of achieving the objectives of the Act;
|
| (s) |
shall have all the powers necessary or expedient for the proper performance of its functions. [Act No. 51 of 2012, s. 8.]
|
|
| 24. |
Functions and powers of the Centre
| (a) |
shall receive, analyse and interpret —
| (i) |
reports of usual or suspicious transactions made by reporting institutions pursuant to section 12; |
| (ii) |
all reports made pursuant to section 44; |
| (iii) |
information disclosed to it pursuant to section 42 of the Prevention of Terrorism Act, 2012; and |
| (iv) |
any additional or other information disclosed to it and obtained by it in terms of this Act. |
|
| (b) |
shall send information received under this Act to the appropriate law enforcement authorities, any intelligence agency, or any other appropriate supervisory body for further handling if, having considered the reports, the Director has reasonable grounds to suspect that a transaction or activity involves proceeds of crime, money laundering or financing of terrorism.
|
| (c) |
may, at any time, cause an inspection to be made by an inspector authorised by the Director in writing and the inspector may enter the premises of any reporting institution during ordinary business hours to inspect any documents kept pursuant to the requirements of this Act, and ask any question relating to such documents, make notes and take copies of the whole or any part of such documents;
|
| (d) |
shall send to the appropriate law enforcement authorities, intelligence agency, or supervisory body any information derived from an inspection carried out pursuant to paragraph (c) if such inspection gives the Director reasonable grounds to suspect that a transaction or activity involves proceeds of crime, money laundering or the financing of terrorism;
|
| (e) |
may instruct any reporting institution to—
| (i) |
provide it with such other or additional information or documents to enable the centre to properly Undertake functions under this Act; or |
| (ii) |
take such steps as may be appropriate to facilitate any investigation undertaken or to be undertaken by the Centre including providing documents and other relevant information. |
|
| (f) |
may compile statistics and records, disseminate information within Kenya or elsewhere, and make recommendations arising out of any information received, issue guidelines to reporting institution and advise the Minister;
|
| (g) |
shall design training requirements and may provide such training for any reporting institution in respect of transactions, record-keeping and reporting obligations in accordance with the provisions of this Act;
|
| (h) |
may consult with any relevant person, institution or organization for the purpose of exercising the powers or duties under this Act;
|
| (i) |
may, from time to time, publish in the Gazette such information as may be prescribed by the Minister;
|
| (j) |
shall create and maintain a database of all reports of suspicious transactions, related Government information and such other materials as the Director may from time to determine to be relevant to the work of the Centre;
|
| (k) |
may provide information relating to the commission of an offence to any foreign financial intelligence unit or appropriate foreign law enforcement authority, subject to any conditions as may be considered appropriate by the Director;
|
| (l) |
may, on the basis of mutual agreement and reciprocity, enter into any agreement or arrangement, in writing, with a foreign financial intelligence unit which the Director considers necessary or desirable for the discharge or performance of the functions of the Centre:
Provided that the Director is satisfied, on a case by case basis, that the foreign financial intelligence unit has given appropriate undertakings—
| (i) |
for protecting the confidentiality of anything communicated to it; and |
| (ii) |
for controlling the use that will be made of such information. |
|
| (m) |
shall draft the regulations required by this Act, in consultation with the Board, for submission to the Minister for his approval, prior to publication in the Gazette;
|
| (n) |
shall set anti-money laundering policies in consultation with the Board;
|
| (o) |
shall maintain proper books of accounts;
|
| (oo) |
shall have power to compel the production of, or to obtain access to all records, documents or information relevant to monitoring compliance outside the scope of onsite inspection;
|
| (p) |
shall engage in any lawful activity, whether alone or together with any other organization in Kenya or elsewhere, aimed at promoting its objectives;
|
| (q) |
shall perform such other functions in relation to money laundering as the Minister may direct;
|
| (r) |
The Centre may request any supervisory body, monetary authority, financial regulatory authority, fiscal or tax agency, or fraud investigations agency to provide it with information where such information is reasonably required for the proper discharge of the functions of the Centre under this Act or for purposes of achieving the objectives of the Act; and
|
| (s) |
shall have all the powers necessary or expedient for the proper performance of its functions.
|
|
| 24. |
Functions and powers of the Centre
| (a) |
shall receive, analyse and interpret—
| (i) |
reports of usual or suspicious transactions made by reporting institutions pursuant to section 12; |
| (ii) |
all reports made pursuant to section 44; |
| (iii) |
information disclosed to it pursuant to section 42 of the Prevention of Terrorism Act, 2012; and |
| (iv) |
any additional or other information disclosed to it and obtained by it in terms of this Act; |
|
| (b) |
shall send information received under this Act to the appropriate law enforcement authorities, any intelligence agency, or any other appropriate supervisory body for further handling if, having considered the reports, the Director-General has reasonable grounds to suspect that a transaction or activity involves proceeds of crime, money laundering or financing of terrorism;
|
| (c) |
may, at any time, cause an inspection to be made by an inspector authorised by the Director-General in writing and the inspector may enter the premises of any reporting institution during ordinary business hours to inspect any documents kept pursuant to the requirements of this Act, and ask any question relating to such documents, make notes and take copies of the whole or any part of such documents;
|
| (d) |
shall send to the appropriate law enforcement authorities, intelligence agency, or supervisory body any information derived from an inspection carried out pursuant to paragraph (c) if such inspection gives the Director-General reasonable grounds to suspect that a transaction or activity involves proceeds of crime, money laundering or the financing of terrorism;
|
| (e) |
may instruct any reporting institution to—
| (i) |
provide it with such other or additional information or documents to enable the centre to properly Undertake functions under this Act; or |
| (ii) |
take such steps as may be appropriate to facilitate any investigation undertaken or to be undertaken by the Centre including providing documents and other relevant information. |
|
| (f) |
may compile statistics and records, disseminate information within Kenya or elsewhere, and make recommendations arising out of any information received, issue guidelines to reporting institution and advise the Minister;
|
| (g) |
shall design training requirements and may provide such training for any reporting institution in respect of transactions, record-keeping and reporting obligations in accordance with the provisions of this Act;
|
| (h) |
may consult with any relevant person, institution or organization for the purpose of exercising the powers or duties under this Act;
|
| (i) |
may, from time to time, publish in the Gazette such information as may be prescribed by the Minister;
|
| (j) |
shall create and maintain a database of all reports of suspicious transactions, related Government information and such other materials as the Director-General may from time to determine to be relevant to the work of the Centre;
|
| (k) |
may provide information relating to the commission of an offence to any foreign financial intelligence unit or appropriate foreign law enforcement authority, subject to any conditions as may be considered appropriate by the Director-General;
|
| (l) |
may, on the basis of mutual agreement and reciprocity, enter into any agreement or arrangement, in writing, with a foreign financial intelligence unit which the Director-General considers necessary or desirable for the discharge or performance of the functions of the Centre:
Provided that the Director-General is satisfied, on a case by case basis, that the foreign financial intelligence unit has given appropriate undertakings—
| (i) |
for protecting the confidentiality of anything communicated to it; and |
| (ii) |
for controlling the use that will be made of such information. |
|
| (m) |
shall draft the regulations required by this Act, in consultation with the Board, for submission to the Minister for his approval, prior to publication in the Gazette;
|
| (n) |
shall set anti-money laundering policies in consultation with the Board;
|
| (o) |
shall maintain proper books of accounts;
|
| (oo) |
shall have power to compel the production of, or to obtain access to all records, documents or information relevant to monitoring compliance outside the scope of onsite inspection;
|
| (p) |
shall engage in any lawful activity, whether alone or together with any other organization in Kenya or elsewhere, aimed at promoting its objectives;
|
| (q) |
shall perform such other functions in relation to money laundering as the Minister may direct;
|
| (r) |
The Centre may request any supervisory body, monetary authority, financial regulatory authority, fiscal or tax agency, or fraud investigations agency to provide it with information where such information is reasonably required for the proper discharge of the functions of the Centre under this Act or for purposes of achieving the objectives of the Act; and
|
| (s) |
shall have all the powers necessary or expedient for the proper performance of its functions.
|
|
| 24A. |
Instructions or directions
| (1) |
The Center may issue such instructions, directions, guidelines or rules to reporting institutions as it may consider necessary for the better carrying out of its functions under this Act or regarding the application of this Act.
|
| (2) |
Any instructions, directions, guidelines or rules issued under this section may—
| (a) |
be either general or special;
|
| (b) |
be revoked or varied by subsequent instructions, directions, guidelines or rules;
|
| (c) |
be given to such persons and in such manner as may be considered appropriate by the Centre.
|
|
| (3) |
The Center may, where it deems appropriate, delegate powers to a supervisory body to issue instructions, directions, guidelines or rules regarding the application of this Act to reporting institutions regulated or supervised by the supervisory body:
Provided that a supervisory body shall consult the Centre prior to issuing any instructions, directions, guidelines or rules under this section.
|
| (4) |
Notwithstanding subsections (1), (2) and (3), the Centre or a supervisory body may in writing, direct any reporting institution to which the provisions of this Act applies, to—
| (a) |
provide the Center or that supervisory body, as the case may be—
| (i) |
with the information reports or statistical returns specified in the notice, at the time or at the intervals specified in the notice; and |
| (ii) |
within the period specified in the notice, with any document in its possession or custody or under its control; |
|
| (b) |
cease or refrain from engaging in any act, omission or conduct in contravention of this Act;
|
| (c) |
perform such act as may be necessary to remedy alleged non-compliance with this Act; or
|
| (d) |
perform such act as may be necessary to meet any obligation imposed by this Act.
|
|
| (5) |
The Centre or a supervisory body may examine a document submitted to it in terms of subsection (4)(a) and may make a copy thereof or of part thereof. [Act No. 51 of 2012, s. 9.]
|
|
| 24B. |
Powers of the Centre to impose civil penalties for non-compliance
| (1) |
Without derogating from any criminal penalty or other sanction that may be imposed by this Act, where a person or a reporting institution is in breach of, or fails to comply with any instruction, direction or rules issued by the Centre under section 24A—
| (a) |
in the case of a natural person, a person shall be liable to a monetary penalty not exceeding five million shillings;
|
| (b) |
in the case of a corporate body, the corporate body shall be liable to a monetary penalty not exceeding twenty five million shillings;
|
| (c) |
in the case of continued failure, the person or reporting institution shall be liable to an additional monetary penalty of ten thousand shillings per day on which such failure continues for a maximum period of one hundred and eighty days.
|
|
| (2) |
Before imposing a monetary penalty on any person or reporting institution under this section, the Centre shall give not less than fourteen days notice in writing, requiring the person or reporting institution to show cause as to why the prescribed monetary penalty should not be imposed.
|
| (3) |
Where a monetary penalty is prescribed under this section, such penalty shall—
| (a) |
be paid to the Centre and form part of the funds of the Centre;
|
| (b) |
be paid within fourteen days, unless otherwise stated; and
|
| (c) |
where a person or reporting institution fails to pay the monetary penalty within the prescribed time, the Centre may take such other action as the Centre may deem necessary in accordance with this Act.
|
|
| (4) |
A monetary penalty imposed on a person under this section shall be a debt due to the Centre and shall, after it becomes due be recoverable at any time through proceedings in a court of competent jurisdiction. [Act No. 3 of 2017, s. 4.]
|
|
| 24C. |
Powers of the Center to take administrative action for non-compliance
| (1) |
The Centre may for reasons disclosed in writing—
| (a) |
issue a warning to a specified person or reporting institution; or
|
| (b) |
issue an order requiring a specified person or reporting institution to comply with any specific instruction or direction issued by the Centre;
|
| (c) |
issue an order barring an individual or individuals from employment within the specified reporting institution whether entirely or in a specified capacity;
|
| (d) |
issue an order to a competent supervisory authority requesting the suspension or revocation of a license, registration, permit or authorization of a specified reporting institution whether entirely or in a specified capacity or of any director, principal, officer, agent or employee of the reporting institution.
|
|
| (2) |
Before taking administrative action imposed against any person or reporting institution under this section, the Centre shall give the person or reporting institution a written notice of not less than fourteen days requiring the person or institution to show cause as to why the prescribed administrative action should not be taken. [Act No. 3 of 2017, s. 4.]
|
|
| 25. |
Appointment of Director and Deputy Director
| (1) |
There shall be a Director and a Deputy Director of the Centre.
|
| (2) |
The Director and the Deputy Director shall be fit, competent and proper persons, recommended by the Board and approved by the National Assembly for appointment to their respective positions.
|
| (3) |
On approval of a person by the National Assembly under subsection (2), the Minister shall appoint that person to the office in respect of which the approval was given.
|
| (4) |
A person shall not be appointed as a Director or Deputy Director unless that person—
| (a) |
holds a degree in law, economics or finance from a recognised institution;
|
| (b) |
has at lease seven years work experience in the relevant field; and
|
| (c) |
meets such other requirements that may be prescribed by the Board.
|
|
| (5) |
The persons appointed as the Director and the Deputy shall hold office—
| (a) |
for a term of four years and three years, respectively, subject to renewal for one further term of four years and three years, respectively; and
|
| (b) |
on such terms and conditions as may be determined by the Board and set out in the instrument of appointment which shall include specific and measurable performance targets.
|
|
| (6) |
The provisions of subsection (3) shall apply to the renewal of an appointment under subsection (5)(a).
|
|
| 25. |
Appointment of Director and Deputy Director
| (1) |
There shall be a Director-General and a Deputy Director of the Centre.
|
| (2) |
The Director-General and the Deputy Director shall be fit, competent and proper persons, recommended by the Board and approved by the National Assembly for appointment to their respective positions.
|
| (3) |
On approval of a person by the National Assembly under subsection (2), the Minister shall appoint that person to the office in respect of which the approval was given.
|
| (4) |
A person shall not be appointed as a Director-General or Deputy Director unless that person—
| (a) |
holds a degree in law, public administration, management, international relations, economics or finance from a recognised institution;
|
| (b) |
has at lease ten years work experience in the relevant field, of which at least three shall be in senior management; and
|
| (c) |
meets such other requirements that may be prescribed by the Board.
|
|
| (5) |
The persons appointed as the Director-General and the Deputy shall hold office—
| (a) |
for a term of four years and three years, respectively, subject to renewal for one further term of four years and three years, respectively; and
|
| (b) |
on such terms and conditions as may be determined by the Cabinet Secretary in consultation with the Board and set out in the instrument of appointment which shall include specific and measurable performance targets.
|
|
| (6) |
The provisions of subsection (3) shall apply to the renewal of an appointment under subsection (5)(a). [Act No. 3 of 2017, s. 5.]
|
|
| 26. |
Resignation of Director or Deputy Director
| (1) |
The Director or the Deputy Director may resign by a written resignation addressed to the Minister.
|
| (2) |
A resignation is effective upon being received by the Minister or by a person authorized by the Minister to receive it.
|
|
| 26. |
Resignation of Director-General or Deputy Director
| (1) |
The Director-General or the Deputy Director may resign by a written resignation addressed to the Minister.
|
| (2) |
A resignation is effective upon being received by the Minister or by a person authorized by the Minister to receive it. [Act No. 3 of 2017, s. 6.]
|
|
| 27. |
Removal from office
| (1) |
The Minister may, in consultation with the Board, remove the Director or Deputy Director from office on the grounds of gross misconduct, mental or physical incapacity or failure to satisfy the terms and conditions of service set forth in section 25(5)(b), or—
| (a) |
where there is proof of a financial conflict of interest with any reporting institution;
|
| (b) |
if he is adjudged bankrupt or enters into a composition or scheme of arrangement with his creditors; or
|
| (c) |
if he has been convicted of an offence for which one may be sentenced to imprisonment for a term exceeding six months.
|
|
| (2) |
The Minister may, in consultation with the Board, suspend the Director or Deputy Director from office pending determination of any inquiry as to whether grounds of misconduct, incapacity or incompetence exist.
|
|
| 27. |
Removal from office
| (1) |
The Minister may, in consultation with the Board, remove the Director-General or Deputy Director from office on the grounds of gross misconduct, mental or physical incapacity or failure to satisfy the terms and conditions of service set forth in section 25(5)(b), or—
| (a) |
where there is proof of a financial conflict of interest with any reporting institution;
|
| (b) |
if he is adjudged bankrupt or enters into a composition or scheme of arrangement with his creditors; or
|
| (c) |
if he has been convicted of an offence for which one may be sentenced to imprisonment for a term exceeding six months.
|
|
| (2) |
The Minister may, in consultation with the Board, suspend the Director-General or Deputy Director from office pending determination of any inquiry as to whether grounds of misconduct, incapacity or incompetence exist. [Act No. 3 of 2017, s. 7.]
|
|
| 28. |
Responsibilities of the Director
| (1) |
The Director shall be the Chief Executive Officer of the Centre and shall be responsible for its direction and management.
|
| (2) |
As the Chief Executive Officer, the Director shall be responsible for—
| (a) |
the formation and development of an efficient and performance driven administration; and
|
| (b) |
control and maintenance of discipline of staff.
|
|
| (3) |
The Director shall perform the functions of the office subject to the policy framework which may be prescribed by the Minister on the advice of the Board.
|
|
| 28. |
Responsibilities of the Director
| (1) |
The Director-General shall be the Chief Executive Officer of the Centre and shall be responsible for its direction and management.
|
| (2) |
Without prejudice to the generality of subsection (1), the Director-General as the Chief Executive Officer shall be responsible for—
| (a) |
the formation and development of an efficient and performance driven administration;
|
| (b) |
control and maintenance of discipline of staff; and
|
| (c) |
taking all decisions of the Centre in the exercise, discharge and performance of the Centre's objectives, powers, functions and duties.
|
|
| (3) |
The Director-General shall perform the functions of the office subject to the policy framework which may be prescribed by the Minister on the advice of the Board. [Act No. 3 of 2017, s. 8.]
|
|
| 29. |
Delegation by the Director
| (1) |
Subject to this Act, the Director may in writing, delegate any of his powers and duties under this Act to such other officer or officers of the Centre as the Director may determine.
|
| (2) |
A delegation made under subsection (1) may, at any time, be varied or cancelled by the Director.
|
|
| 29. |
Delegation by the Director-General
| (1) |
Subject to this Act, the Director-General may in writing, delegate any of his powers and duties under this Act to such other officer or officers of the Centre as the Director-General may determine.
|
| (2) |
A delegation made under subsection (1) may, at any time, be varied or cancelled by the Director-General. [Act No. 3 of 2017, s. 9.]
|
|
| 30. |
When Deputy Director may act
The Deputy Director may act for the Director and shall exercise all the powers and perform all the functions conferred on the Director under this Act whenever the Director is temporarily absent, and shall perform such other functions as the Director may, from time to time, assign to him.
|
| 30. |
When Deputy Director may act
The Deputy Director may act for the Director-General and shall exercise all the powers and perform all the functions conferred on the Director-General under this Act whenever the Director-General is temporarily absent, and shall perform such other functions as the Director-General may, from time to time, assign to him. [Act No. 3 of 2017, s. 10.]
|
| 31. |
Appointment of staff
| (1) |
The Centre may appoint other officers and other staff as are necessary for the proper discharge of its functions under this Act, upon such terms and conditions of service as the Minister may, in consultation with the State Corporations Advisory Committee, approve.
|
| (2) |
For the purposes of subsection (1), the State Corporations Advisory Committee means the Committee by that name established by section 26 of the State Corporations Act (Cap. 446).
|
|
| 31. |
Appointment of staff
| (1) |
The Cabinet Secretary may approve the general terms and conditions of service of the Centre.
|
| (2) |
The Centre shall determine its own staff establishment and may appoint other officers as are necessary for the proper discharge of its functions under this Act in accordance with the approved general terms and conditions of service.
|
| (3) |
The Centre may engage the services of any person by agreement including any state department to perform any specific act or function. [Act No. 3 of 2017, s. 11.]
|
|
| 32. |
Oath of confidentiality
The Director, the Deputy Director and staff of the Centre shall—
| (a) |
before they begin to perform any duties under this Act, take and subscribe before a Magistrate or Commissioner for Oaths the oath of confidentiality prescribed in the Third Schedule;
|
| (b) |
maintain, during and after their employment, the confidentiality of any matter which they came across during their tenure of office.
|
|
| 32. |
Oath of confidentiality
The Director-General, the Deputy Director and staff of the Centre shall—
| (a) |
before they begin to perform any duties under this Act, take and subscribe before a Magistrate or Commissioner for Oaths the oath of confidentiality prescribed in the Third Schedule;
|
| (b) |
maintain, during and after their employment, the confidentiality of any matter which they came across during their tenure of office. [Act No. 3 of 2017, s. 12.]
|
|
| 33. |
Inspection
| (1) |
Where an inspection is made under section 24(c), the reporting institution concerned and every officer and employee thereof shall produce and make available to the inspector all the books, accounts and other documents of the reporting institution and such correspondence, statements and information relating to the reporting institution, its business and the conduct thereof which the inspector may require within seven days or such longer time as the inspector may direct in writing.
|
| (2) |
Failure to produce books, accounts, records, documents, correspondence, statements, returns or other information within the period specified in the direction under subsection (1) shall constitute an offence under this Act.
|
| (3) |
The books of accounts and other documents required to be produced shall not, in the course of inspection, be removed from the premises of the reporting institution or other premises at which they are produced.
|
| (4) |
The inspector shall make copies of any books, accounts and other documents required for the purpose of the inspector’s report.
|
| (5) |
All information obtained in the course of the inspection shall be treated as confidential and used solely for the purposes of this Act.
|
| (6) |
An inspector shall submit a report to the Director, in which attention shall be made to any breach or non-observance of the requirement of this Act or any regulations made thereunder and any other matter revealed or discovered in the course of the inspection, warranting in the opinion of the inspector, remedial action or further action by the Director or the appropriate supervisory body.
|
|
| 33. |
Inspection
| (1) |
Where an inspection is made under section 24(c), the reporting institution concerned and every officer and employee thereof shall produce and make available to the inspector all the books, accounts and other documents of the reporting institution and such correspondence, statements and information relating to the reporting institution, its business and the conduct thereof which the inspector may require within seven days or such longer time as the inspector may direct in writing.
|
| (2) |
Failure to produce books, accounts, records, documents, correspondence, statements, returns or other information within the period specified in the direction under subsection (1) shall constitute an offence under this Act.
|
| (3) |
The books of accounts and other documents required to be produced shall not, in the course of inspection, be removed from the premises of the reporting institution or other premises at which they are produced.
|
| (4) |
The inspector shall make copies of any books, accounts and other documents required for the purpose of the inspector’s report.
|
| (5) |
All information obtained in the course of the inspection shall be treated as confidential and used solely for the purposes of this Act.
|
| (6) |
An inspector shall submit a report to the Director-General, in which attention shall be made to any breach or non-observance of the requirement of this Act or any regulations made thereunder and any other matter revealed or discovered in the course of the inspection, warranting in the opinion of the inspector, remedial action or further action by the Director-General or the appropriate supervisory body. [Act No. 3 of 2017, s. 13.]
|
|
| 34. |
Obligation to respond to the inspection reports
The Director may by notice in writing and after giving the reporting institution a reasonable opportunity of being heard, require the reporting institution to comply by the date or within the period as may be specified therein, with such directions as are necessary in connection with any matter arising out of a report made under section 33.
|
| 34. |
Obligation to respond to the inspection reports
The Director-General may by notice in writing and after giving the reporting institution a reasonable opportunity of being heard, require the reporting institution to comply by the date or within the period as may be specified therein, with such directions as are necessary in connection with any matter arising out of a report made under section 33. [Act No. 3 of 2017, s. 14.]
|
| 35. |
Obligation of persons to provide information to the inspectors
| (1) |
The Director may, by notice in writing, require any person who is or has at any time been an employee or agent of the reporting institution being inspected, to—
| (a) |
give to the inspector all reasonable assistance in connection with the inspection; or
|
| (b) |
appear before the inspector for examination concerning matters relevant to the inspection; or
|
| (c) |
produce any books or documents that relate to the affairs of the reporting institution.
|
|
| (2) |
| (a) |
refuses or fails to comply with a requirement of an inspector which is applicable to that person, to the extent to which the person is able to comply with it; or
|
| (b) |
obstructs or hinders an inspector in the exercise of the powers under this Act; or
|
| (c) |
furnishes information which the person knows to be false or misleading in any material way; or
|
| (d) |
appears before an inspector for examination pursuant to such requirement, makes a statement which the person knows to be false or misleading in any material particular,
|
|
| (3) |
A person who contravenes the provisions of this section shall be liable, on conviction, to—
| (a) |
in case of a natural person, imprisonment for a term not exceeding three years or a fine not exceeding one million shillings, or to both; and
|
| (b) |
in the case of a body corporate a fine not exceeding five million shillings.
|
|
|
| 35. |
Obligation of persons to provide information to the inspectors
| (1) |
The Director-General may, by notice in writing, require any person who is or has at any time been an employee or agent of the reporting institution being inspected, to—
| (a) |
give to the inspector all reasonable assistance in connection with the inspection; or
|
| (b) |
appear before the inspector for examination concerning matters relevant to the inspection; or
|
| (c) |
produce any books or documents that relate to the affairs of the reporting institution.
|
|
| (2) |
| (a) |
refuses or fails to comply with a requirement of an inspector which is applicable to that person, to the extent to which the person is able to comply with it; or
|
| (b) |
obstructs or hinders an inspector in the exercise of the powers under this Act; or
|
| (c) |
furnishes information which the person knows to be false or misleading in any material way; or
|
| (d) |
appears before an inspector for examination pursuant to such requirement, makes a statement which the person knows to be false or misleading in any material particular,
|
|
| (3) |
A person who contravenes the provisions of this section shall be liable, on conviction, to—
| (a) |
in case of a natural person, imprisonment for a term not exceeding three years or a fine not exceeding one million shillings, or to both; and
|
| (b) |
in the case of a body corporate a fine not exceeding five million shillings. [Act No. 3 of 2017, s. 15.]
|
|
|
| 36. |
Obligation of a supervisory body and its staff
| (1) |
A supervisory body and its staff shall report to the Centre any suspicious transaction that the supervisory body or its staff may encounter during the normal course of their duties.
|
| (2) |
A person who as an employee of a supervisory body deliberately or with intention to deceive does not make a report in accordance with this section commits an offence.
|
| (3) |
A person who contravenes the provisions of this provision is liable on conviction to—
| (a) |
in the case of a natural person, imprisonment for a term not exceeding three years or a fine not exceeding one million shillings, or to both; and
|
| (b) |
in the case of a body corporate, a fine not exceeding five million shillings.
|
|
|
| 36A. |
Responsibility for supervision of Reporting Institutions
| (1) |
The Centre shall have the powers to regulate and supervise all reporting institutions, regarding the application of this Act.
|
| (2) |
Subject to subsection (1), each supervisory body shall be responsible for supervising and enforcing compliance with this Act or any instruction, direction, guideline or rule made pursuant to or in terms of this Act by all reporting institutions regulated or supervised by it and to whom the provision of this Act apply.
|
| (3) |
The obligation referred to in subsection (2) shall form part of the legislative mandate of any supervisory body and shall constitute a core function of that supervisory body.
|
| (4) |
Any law which regulates a supervisory body or authorises that supervisory body to supervise or regulate any reporting institution to whom the provisions of this Act apply, shall take account of subsection (2), and a supervisory body may utilise any fees or charges it is authorised to impose or collect to defray expenditure incurred in performing its obligations under this Act or any order, determination or directive made in terms of this Act.
|
| (5) |
A supervisory body, in meeting its obligation referred to in subsection (2), may—
| (a) |
in addition to any powers it has under any other Act, exercise any power afforded to it in this Act;
|
| (b) |
take any measures it considers necessary or expedient to meet its obligations as imposed by this Act or any order, determination, instruction, directive or rule made in terms of this Act, or achieve the objectives of the Centre of this Act;
|
| (c) |
require a reporting institution supervised or regulated by it and to whom, the provisions of this Act apply, to report on that institution's compliance with this Act or any order, determination, instruction, directive or rule made under this Act in the form manner and within the period determined by the supervisory body;
|
| (d) |
issue or amend any licence, registration, approval or authorisation that the supervisory body may issue or grant in accordance with any Act, to include the following conditions—
| (i) |
compliance with this Act; |
| (ii) |
the continued availability of human financial, technological and other resources to ensure compliance with this Act or any order, determination or directive made under this Act; and |
|
| (e) |
in making a determination in accordance with any Act applicable to it as to whether a person is fit and proper to hold office in a reporting institution, take into account any involvement, whether directly or indirectly, by that person in any non-compliance with this Act or any order, determination, instruction, directive or rule made in terms of this Act, or any involvement in any money laundering activity.
|
|
| (6) |
A supervisory body shall submit to the Centre, within such period and in such manner, as the Centre may prescribe, a written report on any action taken against any reporting institution in terms of this Act or any order, determination, directive, instruction, or rule made under this Act.
|
| (7) |
The Centre and each supervisory body shall co-ordinate the exercising of their powers and performance of their functions under this Act to ensure consistent application of the Act, and may for such purpose; enter into a written memorandum of understanding in respect thereof. [Act No. 51 of 2012, s. 10.]
|
|
| 36A. |
Responsibility for supervision of Reporting Institutions
| (1) |
The Centre shall have the powers to regulate and supervise all reporting institutions, regarding the application of this Act.
|
| (2) |
Subject to subsection (1), each supervisory body shall be responsible for supervising and enforcing compliance with this Act or any instruction, direction, guideline or rule made pursuant to or in terms of this Act by all reporting institutions regulated or supervised by it and to whom the provision of this Act apply.
|
| (3) |
The obligation referred to in subsection (2) shall form part of the legislative mandate of any supervisory body and shall constitute a core function of that supervisory body.
|
| (4) |
Any law which regulates a supervisory body or authorises that supervisory body to supervise or regulate any reporting institution to whom the provisions of this Act apply, shall take account of subsection (2), and a supervisory body may utilise any fees or charges it is authorised to impose or collect to defray expenditure incurred in performing its obligations under this Act or any order, determination or directive made in terms of this Act.
|
| (5) |
A supervisory body, in meeting its obligation referred to in subsection (2), may—
| (a) |
in addition to any powers it has under any other Act, exercise any power afforded to it in this Act;
|
| (b) |
take any measures it considers necessary or expedient to meet its obligations as imposed by this Act or any order, determination, instruction, directive or rule made in terms of this Act, or achieve the objectives of the Centre of this Act;
|
| (c) |
require a reporting institution supervised or regulated by it and to whom, the provisions of this Act apply, to report on that institution's compliance with this Act or any order, determination, instruction, directive or rule made under this Act in the form manner and within the period determined by the supervisory body;
|
| (d) |
issue or amend any licence, registration, approval or authorisation that the supervisory body may issue or grant in accordance with any Act, to include the following conditions—
| (i) |
compliance with this Act; |
| (ii) |
the continued availability of human financial, technological and other resources to ensure compliance with this Act or any order, determination or directive made under this Act; and |
|
| (e) |
in making a determination in accordance with any Act applicable to it as to whether a person is fit and proper to hold office in a reporting institution, take into account any involvement, whether directly or indirectly, by that person in any non-compliance with this Act or any order, determination, instruction, directive or rule made in terms of this Act, or any involvement in any money laundering activity.
|
|
| (6) |
A supervisory body shall submit to the Centre, within such period and in such manner, as the Centre may prescribe, a written report on any action taken against any reporting institution in terms of this Act or any order, determination, directive, instruction, or rule made under this Act.
|
| (7) |
The Centre and each supervisory body shall co-ordinate the exercising of their powers and performance of their functions under this Act to ensure consistent application of the Act, and may for such purpose; enter into a written memorandum of understanding in respect thereof.
|
| (8) |
Notwithstanding the provisions of subsection (1) or any other provision of this Act, the Centre may require a reporting institution to report on that institution's compliance with this Act or any order, determination, instruction, or direction in the manner and within such period as may be determined by the Centre
|
|
| 37. |
The Centre’s power to obtain a search warrant
| (1) |
The Centre or the appropriate law enforcement agency, may apply to the High Court for a warrant to enter any premises belonging to or in the possession or control of a reporting institution or any officer or employee thereof, and to search the premises and remove any document, material or other thing therein for the purposes of the Centre, as ordered by the High Court and specified in the warrant.
|
| (2) |
The High Court may grant the application if it is satisfied that there are reasonable grounds to believe that—
| (a) |
the reporting institution has failed to keep or produce documents, records, or report on a suspicious transaction, as required by this Act; or
|
| (b) |
an officer, employee or partner of a reporting institution is committing, has committed or is about to commit any offence under this Act.
|
|
|
| 38. |
Property tracking and monitoring orders
For the purpose of determining whether any property belongs to or is in the possession or under the control of any person, the Centre, may upon application to the High Court, obtain an order—
| (a) |
that any document relevant to—
| (i) |
identifying, locating or quantifying that property; or |
| (ii) |
identifying or locating any document necessary for the transfer of that property, belonging to, or in the possession or control of that person, |
be delivered forthwith to the Centre;
|
| (b) |
that the reporting institution forthwith produce to the Centre or the appropriate law enforcement agency all information obtained about any transaction conducted by or for that person during such period before or after the order as the High Court may direct.
|
|
| 39. |
Orders to enforce compliance with obligations under this Act
| (1) |
A person who fails to comply with any obligation provided for under this Act, commits an offence.
|
| (2) |
The Centre may, upon application to the High Court, after satisfying the Court that a reporting institution has refused to comply with any obligation, request or requirements under this Act, obtain an order against all or any officers, employees or partners of the reporting
institution in such terms as the High Court may deem necessary, in
order to enforce compliance with such obligation.
|
| (3) |
In granting the order pursuant to subsection (2), the High Court may order that should the reporting institution fail, without reasonable excuse, to comply with all or any provisions of the order, may order such institution, its officers, employees or partners to pay a fine not exceeding one million shillings for an individual and a fine not exceeding five million shillings for a body corporate.
|
|
| 40. |
Constitution of funds
The funds of the Centre shall consist of—
| (a) |
money appropriated by Parliament for the purposes of the Centre;
|
| (b) |
any Government grants made to it;
|
| (c) |
any other money legally acquired by it, provided that the Centre may accept donations only with the prior written approval of the Minister.
|
|
| 41. |
Financial year
The financial year of the Centre shall be a period of twelve months ending on the thirtieth June of each year.
|
| 42. |
Annual estimates
| (1) |
At least three months before the commencement of each financial year, the Centre shall cause to be prepared estimates of the revenue and expenditure of the Centre for that year.
|
| (2) |
The annual estimates shall make provision for all the estimated expenditure of the Centre for the financial year and in particular, the estimates shall provide for—
| (a) |
the payment of salaries, allowances and other charges in respect of the staff of the Centre;
|
| (b) |
the payment of pensions, gratuities and other charges in respect of the staff of the Centre;
|
| (c) |
the proper maintenance of the buildings and grounds of the Centre;
|
| (d) |
the maintenance, repair and replacement of the equipment and other property of the Centre.
|
|
| (3) |
The annual estimates shall be approved by the Board before the commencement of the financial year to which they relate and shall be submitted to the Minister for approval and after the Minister’s approval, the Centre shall not increase the annual estimates without the consent of the Minister.
|
|
| 43. |
Books of accounts, records, audit and reports
| (1) |
The Centre shall cause to be kept proper books of accounts and records of accounts of the income, expenditure, assets and liabilities of the Centre.
|
| (2) |
The Centre shall within three months of the closure of the financial year submit to the Controller and Auditor-General—
| (a) |
a statement of income and expenditure during that period;
|
| (b) |
a statement of the assets and liabilities of the Centre on the last day of that year.
|
|
| (3) |
The accounts of the Centre shall be audited and reported upon in accordance with the Public Audit Act (Cap. 412B).
|
|
PART IV — ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING
INSTITUTION
| 44. |
Obligation to monitor and report suspected money laundering
activity
| (1) |
A reporting institution shall monitor on an ongoing basis all complex, unusual, suspicious, large or other transaction as may be specified in the regulations, whether completed or not, and shall pay attention to all unusual patterns of transactions, to insignificant but periodic patterns of transactions that have no apparent economic or lawful purpose as stipulated in the regulations.
|
| (2) |
Upon suspicion that any of the transactions or activities described in subsection (1) or any other transaction or activity could constitute or be related to money laundering or the proceeds of crime, a reporting institution shall report the suspicious or unusual transaction or activity to the Centre in the prescribed form immediately and, in any event, within seven days of the date the transaction or activity that is considered to be suspicious occurred.
|
| (3) |
Despite provisions of this section, a reporting institution shall file reports on all cash transactions equivalent to or exceeding the amount prescribed in the Fourth Schedule, whether they appear to be suspicious or not.
|
| (4) |
A report under subsection (2) shall be accompanied by copies of all documentation directly relevant to the suspicion and the grounds on which it rests.
|
| (5) |
The Centre may, in writing, require the person making the report under subsection (2) to provide the Centre with—
| (a) |
particulars or further particulars of any matter concerning the suspicion to which the report relates and the grounds upon which it rests; and
|
| (b) |
copies of all available documents concerning such particulars or further particulars.
|
|
| (6) |
When a person receives a request under subsection (5), that person shall furnish the Centre with the requested particulars or further particulars and copies of documents to the extent that such particulars or documents are available to that person within a reasonable time, but in any case, not more than thirty days from the date of the receipt of the request:
Provided that the Centre may, upon written application by the person responding to a request and with the approval of the Director, grant the person an extension of the time within which to respond.
|
| (7) |
A person who is a party to, or is acting on behalf of a person who is engaged in a transaction, in respect of which he forms a suspicion which, in his opinion, should be reported under subsection (2), may continue with and complete that transaction and shall ensure that all records relating to that transaction are kept and that all reasonable steps are taken to discharge the obligation under this section.
|
|
| 44. |
Monitoring and Report by institutions
| (1) |
A reporting institution shall monitor on an ongoing basis all complex, unusual, suspicious, large or such other transactions as may be specified in the regulations, whether completed or not, and shall pay attention to all unusual patterns of transactions, and to insignificant but periodic patterns of transactions which have no apparent economic or lawful purpose as stipulated in the regulations.
|
| (2) |
Upon suspicion that any of the transactions or activities described in subsection (1) or any other transaction or activity could constitute or be related to money laundering or to the proceeds of crime, a reporting institution shall report the suspicious or unusual transaction or activity to the Centre in the prescribed form immediately and, in any event, within seven days of the date the transaction or activity that is considered to be suspicious occurred.
|
| (3) |
Notwithstanding subsections (1) and (2), a reporting institution shall report all suspicious transactions, including attempted transactions to the Centre.
|
| (4) |
A financial institution shall as far as possible examine the background and purpose of the transactions referred in subsections (1) and (2) and shall set out its findings in writing.
|
| (5) |
A reporting institution shall retain its findings under subsection (4) for at least seven years from the date of the making thereof, and shall make them available to the Centre, and to its supervisory body or auditors.
|
| (6) |
Despite the provisions of this section, a reporting institution shall file reports on all cash transactions equivalent to or exceeding the amount prescribed in the Fourth Schedule, whether they appear to be suspicious or not.
|
| (7) |
A report under subsections (2) and (3) shall be accompanied by copies of all documentation directly relevant to the suspicion and the grounds on which it is based.
|
| (8) |
The Centre may, in writing, require the person making the report under subsection (2) or (3) to provide the Centre with—
| (a) |
particulars or further particulars of any matter concerning the suspicion to which the report relates and the grounds upon which it is based; and
|
| (b) |
copies of all available documents concerning such particulars or further particulars
|
|
| (9) |
When a person receives a request under subsection (8), that person shall furnish the Centre with the required particulars or further particulars and copies of documents to the extent that such particulars or documents are available to that person within a reasonable time, but in any case not later than thirty days from the date of the receipt of the request:
Provided that the Centre may, upon written application by the person responding to a request and with the approval of the Director, grant the person an extension of the time within which to respond.
|
| (10) |
A person who is a party to, or is acting on behalf of, a person who is engaged in a transaction in respect of which he forms a suspicion which, in his opinion, should be reported under subsections (2) or (3), may continue with and complete that transaction and shall ensure that all records relating to that transaction are kept, and that all reasonable steps are taken to discharge the obligation under this section. [Act No. 51 of 2012, s. 11.]
|
|
| 44. |
Monitoring and Report by institutions
| (1) |
A reporting institution shall monitor on an ongoing basis all complex, unusual, suspicious, large or such other transactions as may be specified in the regulations, whether completed or not, and shall pay attention to all unusual patterns of transactions, and to insignificant but periodic patterns of transactions which have no apparent economic or lawful purpose as stipulated in the regulations.
|
| (2) |
Upon suspicion that any of the transactions or activities described in subsection (1) or any other transaction or activity could constitute or be related to money laundering or to the proceeds of crime, a reporting institution shall report the suspicious or unusual transaction or activity to the Centre in the prescribed form immediately and, in any event, within seven days of the date the transaction or activity that is considered to be suspicious occurred.
|
| (3) |
Notwithstanding subsections (1) and (2), a reporting institution shall report all suspicious transactions, including attempted transactions to the Centre.
|
| (4) |
A financial institution shall as far as possible examine the background and purpose of the transactions referred in subsections (1) and (2) and shall set out its findings in writing.
|
| (5) |
A reporting institution shall retain its findings under subsection (4) for at least seven years from the date of the making thereof, and shall make them available to the Centre, and to its supervisory body or auditors.
|
| (6) |
Despite the provisions of this section, a reporting institution shall file reports on all cash transactions equivalent to or exceeding the amount prescribed in the Fourth Schedule, whether they appear to be suspicious or not.
|
| (7) |
A report under subsections (2) and (3) shall be accompanied by copies of all documentation directly relevant to the suspicion and the grounds on which it is based.
|
| (8) |
The Centre may, in writing, require the person making the report under subsection (2) or (3) to provide the Centre with—
| (a) |
particulars or further particulars of any matter concerning the suspicion to which the report relates and the grounds upon which it is based; and
|
| (b) |
copies of all available documents concerning such particulars or further particulars
|
|
| (9) |
When a person receives a request under subsection (8), that person shall furnish the Centre with the required particulars or further particulars and copies of documents to the extent that such particulars or documents are available to that person within a reasonable time, but in any case not later than thirty days from the date of the receipt of the request:
Provided that the Centre may, upon written application by the person responding to a request and with the approval of the Director-General, grant the person an extension of the time within which to respond.
|
| (10) |
A person who is a party to, or is acting on behalf of, a person who is engaged in a transaction in respect of which he forms a suspicion which, in his opinion, should be reported under subsections (2) or (3), may continue with and complete that transaction and shall ensure that all records relating to that transaction are kept, and that all reasonable steps are taken to discharge the obligation under this section. [Act No. 51 of 2012, s. 11, Act No. 3 of 2017, s. 16.]
|
|
| 45. |
Obligation to verify customer identity
| (1) |
A reporting institution shall take reasonable measures to satisfy itself as to the true identity of any applicant seeking to enter into a business relationship with it or to carry out a transaction or series of transactions with it, by requiring the applicant to produce an official record reasonably capable of establishing the true identity of the applicant, such as—
| (a) |
in the case of an individual—
| (ii) |
a national identity card; |
| (iii) |
a driver’s licence; |
| (v) |
any other official means of identification as may be prescribed; and |
|
| (b) |
in the case of a body corporate—
| (i) |
evidence of registration or incorporation; |
| (ii) |
the Act establishing the body corporate; |
| (iii) |
a corporate resolution authorising a person to act on behalf of the body corporate together with a copy of the latest annual return submitted in respect of the body corporate in accordance with the law under which it is established; and |
| (vi) |
or any other item as may be prescribed; |
|
| (c) |
in the case of a government department, a letter from the accounting officer.
|
|
| (2) |
Upon the coming into force of this Act, a reporting institution shall undertake customer due diligence on the existing customers or clients.
|
| (3) |
Where an applicant requests a reporting institution to enter into—
| (a) |
a continuing business relationship; or
|
| (b) |
in the absence of such a relationship, any transaction,
|
|
the reporting institution shall take reasonable measures to establish whether the person is acting on behalf of another person.
| (4) |
If it appears to a reporting institution that an applicant requesting to enter into any transaction, whether or not in the course of a continuing business relationship, is acting on behalf of another person, the reporting institution shall take reasonable measures to establish the true identity of a person on whose behalf or for whose ultimate benefit the applicant may be acting in the proposed transaction, whether as trustee, nominee, agent or otherwise.
|
| (5) |
In determining what constitutes reasonable measures for the purposes of subsection (1) or (3), regard shall be given to all the circumstances of the case, and in particular to—
| (i) |
whether the applicant is a person based or incorporated in a country in which there are in force applicable provisions to prevent the use of the financial system for the purpose of money laundering; and |
| (ii) |
any custom or practice as may, from time to time, be current in the relevant field of business. |
|
| (6) |
The Minister may, by notice in the Gazette, list the countries to which subsection (5)(i) applies.
|
| (7) |
Nothing in this section shall require the production of any evidence of identity where there is a transaction or a series of transactions taking place in the course of a business relationship, in respect of which the applicant has already produced satisfactory evidence of identity.
|
|
| 46. |
Obligation to establish and maintain customer records
| (1) |
Subject to subsection (4), a reporting institution shall establish and maintain—
| (a) |
records of all transactions, in accordance with the requirements of subsection (3); and
|
| (b) |
where evidence of a person’s identity is obtained in accordance with section 45, a record that indicates the nature of the evidence obtained, and which comprises either a copy of the evidence or such information as would enable a copy of it to be obtained.
|
|
| (2) |
A reporting institution shall ensure that its customer accounts are kept in the correct name of the account holder.
|
| (3) |
Records required under subsection (1)(a) shall contain particulars sufficient to identify—
| (a) |
the name, physical and postal address and occupation (or where appropriate business or principal activity) of each person—
| (i) |
conducting the transaction; or |
| (ii) |
on whose behalf the transaction is being conducted, |
|
as well as the method used by the reporting institution to verify the identity of that person;
| (b) |
the nature, time and date of the transaction;
|
| (c) |
the type and amount of currency involved;
|
| (d) |
the type and identifying number of any account with the reporting institution involved in the transaction;
|
| (e) |
if the transaction involves a negotiable instrument other than currency, the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and date of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument;
|
| (f) |
the name and address of the reporting institution and of the officer, employee or agent of the reporting institution who prepared the record.
|
|
| (4) |
The records required under subsection (1) shall be kept by the reporting institution for a period of at least seven years from the date the relevant business or transaction was completed without prejudice to any other records required to be kept by or under any other written law.
|
|
| 46. |
Obligation to establish and maintain customer records
| (1) |
Subject to subsection (4), a reporting institution shall establish and maintain—
| (a) |
records of all transactions, in accordance with the requirements of subsection (3); and
|
| (b) |
where evidence of a person’s identity is obtained in accordance with section 45, a record that indicates the nature of the evidence obtained, and which comprises either a copy of the evidence or such information as would enable a copy of it to be obtained.
|
|
| (2) |
A reporting institution shall ensure that its customer accounts are kept in the correct name of the account holder.
|
| (3) |
Records required under subsection (1)(a) shall contain particulars sufficient to identify—
| (a) |
the name, physical and postal address and occupation (or where appropriate business or principal activity) of each person—
| (i) |
conducting the transaction; or |
| (ii) |
on whose behalf the transaction is being conducted, |
as well as the method used by the reporting institution to verify the identity of that person;
|
| (b) |
the nature, time and date of the transaction;
|
| (c) |
the type and amount of currency involved;
|
| (d) |
the type and identifying number of any account with the reporting institution involved in the transaction;
|
| (e) |
if the transaction involves a negotiable instrument other than currency, the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and date of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument;
|
| (f) |
the name and address of the reporting institution and of the officer, employee or agent of the reporting institution who prepared the record.
|
|
| (4) |
The records required under subsection (1) shall be kept by the reporting institution for a period of at least seven years or such longer period as the Centre may in writing require, from the date the relevant business or transaction was completed or following the termination of an account or business relationship, without prejudice to any other records required to be kept by or under any other written law, and shall be made available on a timely basis to competent authorities. [Act No. 51 of 2012, s. 12.]
|
|
| 47. |
Obligation to establish and maintain internal reporting
procedures
A reporting institution shall establish and maintain internal controls and internal reporting procedures to—
| (a) |
identify persons to whom an employee is to report any information which comes to the employee’s attention in the course of employment and which gives rise to knowledge or suspicion by the employee that another person is engaged in money laundering;
|
| (b) |
enable any person identified in accordance with paragraph (a) to have reasonable access to information that may be relevant in determining whether a sufficient basis exists to report the matter under section 44(2); and
|
| (c) |
require the identified person in paragraph (a) to directly report the matter under section 44(2) in the event that he determines that sufficient basis exists.
|
|
| 47A. |
Obligation to register with the Centre
| (1) |
All reporting institutions to which this Act applies shall register with the Centre within such period and in such manner as the Centre may prescribe.
|
| (2) |
The registration of a reporting institution under sub section (1) shall be accompanied by such particulars as the Centre may require.
|
| (3) |
The Centre shall keep and maintain a register of every reporting institution registered in terms of this section.
|
| (4) |
A reporting institution shall notify the Centre, in writing, of any changes to the particulars furnished in terms of this section within 90 days of such change.
|
| (5) |
A reporting institution that fails to register with the Centre as required by sub section (1) commits an offence. [Act No. 51 of 2012, s. 13.]
|
|
| 48. |
Application of reporting obligations
The reporting obligations under this Part shall apply to accountants when preparing or carrying out transactions for their clients in the following situations—
| (a) |
buying and selling of real estate;
|
| (b) |
managing of client money, securities or other assets;
|
| (c) |
management of bank, savings or securities accounts;
|
| (d) |
organisation of contributions for the creation, operation or management of companies;
|
| (e) |
creation, operation or management of buying and selling of business entities.
|
|
PART V – THE ANTI-MONEY LAUNDERING ADVISORY BOARD
| 49. |
The Anti-Money Laundering Advisory Board
| (1) |
There is established a Board to be known as the Anti-Money Laundering Advisory Board consisting of—
| (a) |
the Chairperson, who shall be appointed by the Minister from among members of the Board appointed under paragraphs (f) to (h);
|
| (b) |
the Permanent Secretary in the Ministry for the time being responsible for finance;
|
| (d) |
the Governor, Central Bank of Kenya;
|
| (e) |
the Commissioner of Police;
|
| (f) |
the Chairman, Kenya Bankers’ Association;
|
| (g) |
the Chief Executive Officer, Institute of Certified Public Accountants of Kenya;
|
| (h) |
two other persons appointed by the Minister from the private sector who shall have knowledge and expertise in matters relating to money laundering;
|
| (i) |
the Director, who shall be the secretary.
|
|
| (2) |
The ex officio members under paragraphs (b) to (g) may attend in person or through a designated representative.
|
| (3) |
A person appointed under subsection (1)(h) shall hold office for a term of three years but shall be eligible for re-appointment for one further term of not more than three years.
|
| (4) |
In deliberation of a matter, the Board may co-opt such other persons as appear to it to have special knowledge or experience in anti-money laundering.
|
|
| 49. |
The Anti-Money Laundering Advisory Board
| (1) |
There is established a Board to be known as the Anti-Money Laundering Advisory Board consisting of—
| (a) |
the Chairperson, who shall be appointed by the Minister from among members of the Board appointed under paragraphs (f) to (h);
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| (b) |
the Permanent Secretary in the Ministry for the time being responsible for finance;
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| (d) |
the Governor, Central Bank of Kenya;
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| (e) |
the Commissioner of Police;
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| (f) |
the Chairman, Kenya Bankers’ Association;
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| (g) |
the Chief Executive Officer, Institute of Certified Public Accountants of Kenya;
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| (h) |
two other persons appointed by the Minister from the private sector who shall have knowledge and expertise in matters relating to money laundering;
|
| (ha) |
the Director-General of the National Intelligence Service;
|
| (hb) |
the Director, Asset Recovery Agency; and
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| (i) |
the Director-General, who shall be the secretary.
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| (2) |
The members under paragraphs (b) to (i) may attend in person or through a designated representative.
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| (3) |
A person appointed under subsection (1)(h) shall hold office for a term of three years but shall be eligible for re-appointment for one further term of not more than three years.
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| (4) |
In deliberation of a matter, the Board may co-opt such other persons as appear to it to have special knowledge or experience in anti-money laundering. [Act No. 3 of 2017, s. 17.]
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| 50. |
Functions of the Board
The functions of the Board shall be to advise the Director generally on the performance of his functions and the exercise of his powers under this Act and to perform any other duty as prescribed to be performed by the Board under this Act.
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| 50. |
Functions of the Board
| (1) |
The functions of the Board shall be to—
| (a) |
on the request of the Cabinet Secretary or at its own initiative, advise the Cabinet Secretary on—
| (i) |
policies, best practices and related activities to identify proceeds of crime or proceeds of unlawful activities and to combat money laundering activities; |
| (ii) |
the exercise of the powers conferred to the Cabinet Secretary under this Act. |
|
| (b) |
advise the Centre generally on its functions and the exercise of its powers under this Act;
|
| (c) |
act as a forum in which the Centre, associations representing categories of reporting institutions, state organs and supervisory bodies can consult one another on anti-money laundering developments, concerns and initiatives;
|
| (d) |
to perform any other duty as may be prescribed under this Act.
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|
| (2) |
The Centre shall provide administrative support and sufficient resources to the Board to enable it perform its functions effectively. [Act No. 3 of 2017, s. 18.]
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| 51. |
Conduct of business of the Board
The business and affairs of the Board shall be conducted in accordance with the provisions of the Fifth Schedule but subject thereto, the Board may regulate its own procedure.
|
PART VI – THE ASSETS RECOVERY AGENCY
| 52. |
Definitions applicable to Parts VI-XII
| (1) |
In Parts VI to XII, except where it is inconsistent with the context or clearly inappropriate, any reference to—
| (a) |
a person who holds property shall be construed as a reference to a person who has any interest in the property, and—
| (i) |
if the estate of such person has been sequestrated, also to the trustees of his estate; or |
| (ii) |
if the person is a company or other legal entity which is being wound up, also to the liquidator thereof; |
|
| (b) |
a person who transfers property to another person shall be construed as a reference to a person who transfers or grants to any other person any interest in the property;
|
| (c) |
anything received in connection with an offence shall be construed as a reference also to anything received as a result of and in connection with the commission of that offence.
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|
| (3) |
For the purposes of Parts VI to XII, a person will have benefited from an offence if that person has at any time, whether before or after the commencement of this Act, received or retained any proceeds of crime.
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| 53. |
The Agency and its Director
| (1) |
There is established a body to be known as Assets Recovery Agency (hereinafter referred to as the “Agency”) which shall be a semi-autonomous body under the office of the Attorney-General.
|
| (2) |
The Attorney-General shall appoint a fit, competent and proper person to be the Director of the Agency (hereinafter referred to as the “Agency Director”).
|
| (3) |
For a person to be appointed as the Agency Director, the person shall—
| (a) |
hold a degree in law, economics or finance from a recognized university;
|
| (b) |
have at least seven years working experience in a relevant field, five of which shall have been at senior management level;
|
| (c) |
have such other requirements that may be prescribed by the Attorney-General.
|
|
| (4) |
The Agency Director may, with the approval of the Attorney-General, obtain such number of staff on secondment and on such terms and conditions of service as may be approved by the Attorney-General, and may make such arrangements for the provision of services, as he considers appropriate for or in connection with the exercise of his functions.
|
| (5) |
Anything which the Agency Director is authorised or required to do may be done by—
| (a) |
a member of staff of the Agency, or
|
| (b) |
a person providing services under arrangements made by the Agency Director,
|
|
if authorised by the Agency Director (generally or specifically) for that purpose.
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| 53. |
The Agency and its Director
| (1) |
There is established a body to be known as Assets Recovery Agency, which shall be a body corporate with perpetual succession and a common seal, and shall in its corporate name, be capable of—
| (b) |
holding and alienating movable and immovable property;
|
| (c) |
borrowing and lending money;
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| (d) |
doing and performing all such other acts or things as may be lawfully done by a body corporate.
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|
| (2) |
The Attorney-General shall appoint a fit, competent and proper person to be the Director of the Agency (hereinafter referred to as the “Agency Director”).
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