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PART I – GENERAL PROVISIONS
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CHAPTER I – PRELIMINARY
| 1. |
Short title
This Act may be cited as the Penal Code and is hereinafter referred to as “this Code”.
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| 2. |
Saving
Except as hereinafter expressly provided nothing in this Code shall affect—
| (a) |
the liability, trial or punishment of a person for an offence against the common law or against any other law in force in Kenya other than this Code; or
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| (b) |
the liability of a person to be tried or punished under any law in force in Kenya relating to the jurisdiction of the courts of Kenya for an offence in respect of an act done beyond the ordinary jurisdiction of such courts; or
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| (c) |
the power of any court to punish a person for contempt of such court; or
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| (d) |
the liability or trial of a person, or the punishment of a person under any sentence passed or to be passed, in respect of any act done or commenced before the commencement of this Code; or
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| (e) |
any power of the President to grant any pardon or to remit or commute in whole or in part or to respite the execution of any sentence passed or to be passed; or
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| (f) |
any written law, Articles or Standing Orders for the time being in force for the government of the disciplined forces or the police force:
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Provided that, if a person does an act which is punishable under this Code and is also punishable under another written law of any of the kinds mentioned in this section, he shall not be punished for that act both under that written law and also under this Code.
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CHAPTER II – INTERPRETATION
| 3. |
Nothing in this Code shall affect—
| (1) |
the liability, trial or punishment of a person for an offence against the Common Law or against any other law in force in the Colony other than this Code ; or
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| (2) |
the liability of a person to be tried or punished for an offence under the provisions of any law in force in the Colony relating to the jurisdiction of the Colonial courts in respect of acts done beyond the ordinary jurisdiction of such courts ; or
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| (3) |
the power of any court to punish a person for contempt of such court ; or
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| (4) |
the liability or trial of a person, or the punishment of a person under any sentence passed or to be passed, in respect of any act done or commenced before the commencement of this Code ; or
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| (5) |
any power of His Majesty, or of the Governor as the representative of His Majesty, to grant any pardon to remit or commute in whole or in part or to respite the execution of any sentence passed or to be passed; or
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| (6) |
any of the Statutes, Ordinances, Regulations or Articles for the time being in force for the government of His Majesty's military or naval or air forces, or the military or police forces of the Colony :
Provided that if a person does an act which is punishable under this Code and is also punishable under another Ordinance or Statute of any of the kinds mentioned in this section, he shall not be punished for that act both under that Ordinance or Statute and also under this Code.
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| 4. |
Interpretation
In this Code, unless the context otherwise requires—
“Act” includes any order, rules or regulations made under any Act;
“court” means a court of competent jurisdiction;
“dangerous harm” means harm endangering life;
“disciplined forces” means the armed forces or the National Youth Service;
“dwelling-house” includes any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or his servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise;
“felony” means an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more;
“grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;
“harm” means any bodily hurt, disease or disorder whether permanent or temporary;
“judicial proceeding” includes any proceeding had or taken in or before any court, tribunal, commission of inquiry or person in which evidence may be taken on oath;
“knowingly”, used in connexion with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used;
“maim” means the destruction or permanent disabling of any external or internal organ, member or sense;
“misdemeanour” means any offence which is not a felony;
“money” includes bank notes, currency notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money;
“night” or “night-time” means the interval between half-past six o’clock in the evening and half-past six o’clock in the morning;
“oath” includes affirmation or declaration;
“offence” means an act, attempt or omission punishable by law;
“person employed in the public service” means any person holding, or performing with authority the duties of, any of the following offices (whether as principal or as deputy, and whether such service is permanent or temporary, paid or unpaid)—
| (a) |
any office the holder of which is appointed or removed by the President or by any public commission;
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| (b) |
any office the holder of which is appointed, elected or otherwise selected in pursuance of some written law;
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| (c) |
any office the holder of which is appointed by any person or persons holding, or performing with authority the duties of, an office of one of the kinds specified in paragraph (a) or paragraph (b),
and, without prejudice to the generality of the foregoing, includes—
| (i) |
an arbitrator or umpire in any proceeding or matter submitted to arbitration by order or with the sanction of any court or in pursuance of some written law;
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| (ii) |
every member of a Commission of Inquiry or of a tribunal appointed or selected in pursuance of some written law;
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| (iii) |
any person in the service of the disciplined forces;
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| (iv) |
any person in the employment of the Government, the Community or any local authority;
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| (v) |
any person employed to execute any process of a court;
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| (vi) |
any person acting as a minister of religion, in respect of the exercise by him of any functions relating to the notification of intending marriage, or the solemnization of marriage, or the making or keeping of any register or certificate of marriage, birth, baptism, death or burial, but not in any other respect;
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“police force” includes the Force defined in section 2 of the Police Act ( Cap. 84), and the Administration Police Force established under the Administration Police Act (Cap. 85); and “police officer” shall be construed accordingly;
“possession”—
| (a) |
“be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;
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| (b) |
if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;
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“premises” includes any land, any building and any other place whatsoever;
“print” means to produce or reproduce words or pictures in visible form by printing, writing, typewriting, duplicating, cyclostyling, lithography, photography or any other means of representing the same in visible form;
“prohibited publication” means any publication the importation of which has been prohibited under section 52, and any part, copy or reproduction of any such publication;
“property” includes any description of movable or immovable property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise;
“public” refers, not only to all persons within Kenya, but also to the persons inhabiting or using any particular place, or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct in respect to which such expression is used;
“public place” or “public premises” includes any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court;
“public way” includes any highway, market place, square, street, bridge or other way which is lawfully used by the public;
“publicly”, when applied to acts done, means either—
| (a) |
that they are so done in any public place as to be seen by any person whether such person be or be not in a public place; or
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| (b) |
that they are so done in any place not being a public place as to be likely to be seen by any person in a public place;
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“unlawful society” means any unlawful society within the meaning of section 4(1) of the Societies Act ( Cap. 108);
“utter” means and includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal with, or act upon the thing in question;
“valuable security” includes any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property;
“vessel” includes any ship, a boat and every other kind of vessel used in navigation either on the sea or in inland waters and includes aircraft;
“wound” means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane;
“written law” means the Constitution, any Act of Parliament of Kenya, or any applied Act, and includes any orders, rules, regulations, by-laws or other subsidiary legislation made under any written law. [Act No. 42 of 1951, s. 2, Act No. 54 of 1960, s. 2, L.N.427/1963, L.N.124/1964, Act No. 24 of 1967, Sch.]
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| 4. |
Interpretation
In this Code, unless the context otherwise requires—
“Act” includes any order, rules or regulations made under any Act;
“court” means a court of competent jurisdiction;
“dangerous harm” means harm endangering life;
“disciplined forces” means the armed forces or the National Youth Service;
“dwelling-house” includes any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or his servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise;
“electronic record” means a record generated in digital form by an information system which can be transmitted within an information system or from one information system to another, and stored in an information system or other medium;
“felony” means an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more;
“grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;
“harm” means any bodily hurt, disease or disorder whether permanent or temporary;
“judicial proceeding” includes any proceeding had or taken in or before any court, tribunal, commission of inquiry or person in which evidence may be taken on oath;
“knowingly”, used in connexion with any term denoting uttering or using, implies knowledge of the character of the thing uttered or used;
“maim” means the destruction or permanent disabling of any external or internal organ, member or sense;
“misdemeanour” means any offence which is not a felony;
“money” includes bank notes, currency notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money;
“night” or “night-time” means the interval between half-past six o’clock in the evening and half-past six o’clock in the morning;
“oath” includes affirmation or declaration;
“offence” means an act, attempt or omission punishable by law;
“person employed in the public service” means any person holding, or performing with authority the duties of, any of the following offices (whether as principal or as deputy, and whether such service is permanent or temporary, paid or unpaid)—
| (a) |
any office the holder of which is appointed or removed by the President or by any public commission;
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| (b) |
any office the holder of which is appointed, elected or otherwise selected in pursuance of some written law;
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| (c) |
any office the holder of which is appointed by any person or persons holding, or performing with authority the duties of, an office of one of the kinds specified in paragraph (a) or paragraph (b),
and, without prejudice to the generality of the foregoing, includes—
| (i) |
an arbitrator or umpire in any proceeding or matter submitted to arbitration by order or with the sanction of any court or in pursuance of some written law;
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| (ii) |
every member of a Commission of Inquiry or of a tribunal appointed or selected in pursuance of some written law;
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| (iii) |
any person in the service of the disciplined forces;
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| (iv) |
any person in the employment of the Government, the Community or any local authority;
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| (v) |
any person employed to execute any process of a court;
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| (vi) |
any person acting as a minister of religion, in respect of the exercise by him of any functions relating to the notification of intending marriage, or the solemnization of marriage, or the making or keeping of any register or certificate of marriage, birth, baptism, death or burial, but not in any other respect;
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“police force” includes the Force defined in section 2 of the Police Act ( Cap. 84), and the Administration Police Force established under the Administration Police Act (Cap. 85); and “police officer” shall be construed accordingly;
“possession”—
| (a) |
“be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;
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| (b) |
if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;
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“premises” includes any land, any building and any other place whatsoever;
“print” means to produce or reproduce words or pictures in visible form by printing, writing, typewriting, duplicating, cyclostyling, lithography, photography or any other means of representing the same in visible form;
“prohibited publication” means any publication the importation of which has been prohibited under section 52, and any part, copy or reproduction of any such publication;
“property” includes any description of movable or immovable property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise;
“public” refers, not only to all persons within Kenya, but also to the persons inhabiting or using any particular place, or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct in respect to which such expression is used;
“public place” or “public premises” includes any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court;
“public way” includes any highway, market place, square, street, bridge or other way which is lawfully used by the public;
“publicly”, when applied to acts done, means either—
| (a) |
that they are so done in any public place as to be seen by any person whether such person be or be not in a public place; or
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| (b) |
that they are so done in any place not being a public place as to be likely to be seen by any person in a public place;
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“unlawful society” means any unlawful society within the meaning of section 4(1) of the Societies Act ( Cap. 108);
“utter” means and includes using or dealing with and attempting to use or deal with and attempting to induce any person to use, deal with, or act upon the thing in question;
“valuable security” includes any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property;
“vessel” includes any ship, a boat and every other kind of vessel used in navigation either on the sea or in inland waters and includes aircraft;
“wound” means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purpose of this definition which can be touched without dividing or piercing any other membrane;
“written law” means the Constitution, any Act of Parliament of Kenya, or any applied Act, and includes any orders, rules, regulations, by-laws or other subsidiary legislation made under any written law.
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CHAPTER III – TERRITORIAL APPLICATION
OF CODE
| 5. |
Jurisdiction of local courts
The jurisdiction of the courts of Kenya for the purposes of this Code extends to every place within Kenya, including territorial waters.
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| 6. |
Offences committed partly within and partly beyond the jurisdiction
When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.
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CHAPTER IV – GENERAL RULES AS TO CRIMINAL
RESPONSIBILITY
| 7. |
Ignorance of law
Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.
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| 8. |
Bona fide claim of right
A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.
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| 9. |
Intention and motive
| (1) |
Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
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Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
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| (3) |
Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
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| 10. |
Mistake of fact
| (1) |
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
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| (2) |
The operation of this section may be excluded by the express or implied provisions of the law relating to the subject.
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| 11. |
Presumption of sanity
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
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| 12. |
Insanity
A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.
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| 13. |
Intoxication
| (1) |
Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
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| (2) |
Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—
| (a) |
the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
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| (b) |
the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
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| (3) |
Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply.
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| (4) |
Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
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| (5) |
For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.
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| 14. |
Immature age
| (1) |
A person under the age of eight years is not criminally responsible for any act or omission.
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| (2) |
A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
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| (3) |
A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.
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| 15. |
Judicial officers
Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.
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| 16. |
Compulsion
A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence, nor do any threats excuse the causing of, or the attempt to cause, death.
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| 17. |
Defence of person or property
Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.
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| 18. |
Use of force in effecting arrest
Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.
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| 19. |
Compulsion by husband
A married woman is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.
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CHAPTER V – PARTIES TO OFFENCES
| 20. |
Principal offenders
| (1) |
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—
| (a) |
every person who actually does the act or makes the omission which constitutes the offence;
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| (b) |
every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
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| (c) |
every person who aids or abets another person in committing the offence;
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| (d) |
any person who counsels or procures any other person to commit the offence,
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and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.
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| (2) |
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
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| (3) |
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.
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| 21. |
Joint offenders in prosecution of common purpose
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
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| 22. |
Counselling another to commit offence
| (1) |
When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
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| (2) |
In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.
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| 23. |
Offences by corporations, societies, etc.
Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission. [Act No. 54 of 1960, s. 5.]
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CHAPTER VI – PUNISHMENTS
| 24. |
Different kinds of punishments
The following punishments may be inflicted by a court—
| (b) |
imprisonment or, where the court so determines under the Community Service Orders Act, 1998, community service under a community service order;
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| (c) |
detention under the Detention Camps Act;
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| (h) |
finding security to keep the peace and be of good behaviour;
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| (i) |
any other punishment provided by this Code or by any other Act.
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| 24. |
Different kinds of punishments
The following punishments may be inflicted by a court—
| (b) |
imprisonment or, where the court so determines under the Community Service Orders Act, 1998, community service under a community service order;
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| (c) |
detention under the Detention Camps Act;
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| (h) |
finding security to keep the peace and be of good behaviour;
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| (i) |
any other punishment provided by this Code or by any other Act.
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| 24. |
Different kinds of punishments
The following punishments may be inflicted by a court—
| (b) |
imprisonment or, where the court so determines under the Community Service Orders Act, 1998, community service under a community service order;
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| (c) |
detention under the Detention Camps Act;
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| (h) |
finding security to keep the peace and be of good behaviour;
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| (i) |
any other punishment provided by this Code or by any other Act.
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| 25. |
Sentence of death
| (1) |
Where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorized by law.
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| (2) |
* Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.
*Power delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for Prisons (L.N. 579/1963).
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| (3) |
When a person has been sentenced to be detained during the President’s pleasure under subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.
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| 26. |
Imprisonment
| (1) |
A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which such offence is punishable.
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| (2) |
Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.
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| (3) |
A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:
Provided that—
| (i) |
where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; |
| (ii) |
where the law concerned provides for imprisonment together with corporal punishment such person shall be sentenced to imprisonment and to corporal punishment. [Act No. 3 of 1969, s. 2.] |
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| 26. |
Imprisonment
| (1) |
A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable.
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| (2) |
Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.
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| (3) |
A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:
Provided that—
| (i) |
where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; |
| (ii) |
deleted by Act No. 5 of 2003, s. 4. [Act No. 3 of 1969, s. 2, Act No. 5 of 2003, s. 4.] |
|
|
| 26A. |
Recommendation for removal from Kenya
Where a person who is not a citizen of Kenya is convicted of an offence punishable with imprisonment for a term not exceeding twelve months the court by which he is convicted, or any court to which his case is brought by way of appeal against conviction or sentence may, by directions to the Commissioner of Police and the Commissioner of Prisons (including directions on how the order shall be carried out) order that the person be removed from and remain out of Kenya either immediately or on completion of any sentence of imprisonment imposed; but where the offence for which the person is convicted is punishable with imprisonment for a term exceeding twelve months, the court shall, where it is satisfied that the person may be removed from Kenya, recommend to the Minister for the time being responsible for immigration that an order for removal from Kenya be made in accordance with section 8 of the Immigration Act (Cap. 172).
|
| 27. |
Corporal Punishment
| (1) |
A sentence of corporal punishment shall be to receive such number of strokes with a cane as may be specified by such sentence.
|
| (2) |
No sentence of corporal punishment shall be passed upon any female or upon any male sentenced to death.
|
| (3) |
Whenever a male person under the age of eighteen years is convicted of an offence for which he is liable to imprisonment the court may, in its discretion, sentence him to corporal punishment in addition to or in substitution for any other punishment to which he is liable:
Provided that no sentence of corporal punishment shall be imposed in default of payment of a fine.
|
| (4) |
No sentence of corporal punishment shall be carried into effect until after the expiration of the time limited by law for the entry of an appeal in connexion with the proceedings concerned or, if such an appeal has been entered, until after the final disposal thereof.
|
| (5) |
No corporal punishment shall be inflicted on a prisoner unless, immediately before such infliction, a medical officer has examined the prisoner and has certified that in his opinion such prisoner is physically fit to undergo such punishment.
|
| (6) |
Corporal punishment shall only be inflicted on a prisoner in the presence of a medical officer, who may at any time during the carrying out of such punishment intervene and postpone the carrying out of the remainder of the punishment if, in his opinion, such postponement is necessary to obviate the risk of grave or permanent injury.
|
| (7) |
If any person has been sentenced to corporal punishment in substitution for any other punishment to which he might have been liable, and such sentence cannot, either in whole or in part, be carried into effect, such person shall be kept in custody and shall, as soon as possible, be taken before the court which imposed such sentence and such court may, in its discretion, either remit such sentence or the remainder thereof, or pass upon such person any sentence to which he might have originally been liable.
|
| (8) |
A person sentenced to corporal punishment without imprisonment may be detained in a prison or some other convenient place for such time as may be necessary for carrying the sentence into effect or for ascertaining that the same should not be carried into effect :
Provided that no person under the age of eighteen years shall be detained under this subsection in a prison.
|
| (9) |
Corporal punishment shall be inflicted with a rod, cane or other instrument of a type approved for the purpose by the Minister, and the Minister may approve different types of rod, cane or other instrument for different ages of persons.
|
| (10) |
Where no medical officer is readily available for the purposes of subsection (5) or (6) of this section, the duties and powers imposed and conferred by those subsections may be carried out and exercised by any medical practitioner.
|
|
| 28. |
Fines
| (1) |
Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply—
| (a) |
where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;
|
| (b) |
in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court;
|
| (c) |
in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion—
| (i) |
direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also |
| (ii) |
issue a warrant for the levy of the amount on the immovable and movable property of the offender by distress and sale under warrant: |
|
Provided that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue a distress warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
|
| (2) |
In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
|
| (3) |
The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
|
|
| 28. |
Fines
| (1) |
Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply—
| (a) |
where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;
|
| (b) |
in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court;
|
| (c) |
in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion—
| (i) |
direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also |
| (ii) |
issue a warrant for the levy of the amount on the immovable and movable property of the offender by distress and sale under warrant: |
|
Provided that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue a distress warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
|
| (2) |
In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Cap. 91) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale—
|
Amount
|
Maximum period
|
|
Not exceeding Sh. 500 ............
|
14 days
|
|
Exceeding Sh. 500 but not exceeding Sh. 2,500 .....
|
1 month
|
|
Exceeding Sh. 2,500 but not exceeding Sh. 15,000 ....
|
3 months
|
|
Exceeding Sh. 15,000 but not exceeding Sh. 50,000 ...
|
6 months
|
|
Exceeding Sh. 50,000 ...............
|
12 months
|
|
| (3) |
The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.
|
|
| 29. |
Forfeiture
| (1) |
When any person is convicted of an offence under any of the following sections, namely, sections 118 and 119, the court may, in addition to or in lieu of any penalty which may be imposed, order the forfeiture of any property which has passed in connexion with the commission of the offence or, if the property cannot be forfeited or cannot be found, of such sum as the court shall assess as the value of the property; and any property or sum so forfeited shall be dealt with in such manner as the Attorney-General may direct.
|
| (2) |
Payment of any sum so ordered to be forfeited may be enforced in the same manner and subject to the same incidents as in the case of the payment of a fine.
|
|
| 30. |
Suspension or forfeiture of right to carry on business
| (1) |
Where a person is convicted of any offence mentioned in Chapter XXXI and the offence arose out of, or was committed in the course of, any trade or business, whether carried on by such person or not, the court by which the conviction is recorded may, in addition to any other penalty which it may impose, make an order, having effect for such period as the court may think fit, prohibiting such person from carrying on, or being concerned or employed, directly or indirectly, in carrying on, any such trade or business or any branch of any such trade or business of the same or similar character.
|
| (2) |
Any person who fails to comply with an order made under subsection (1) is guilty of an offence and is liable to a fine not exceeding two thousand shillings or to imprisonment for a term not exceeding six months or to both. [Act No. 40 of 1952, s. 2.]
|
|
| 31. |
Compensation
Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.
|
| 32. |
Costs
Subject to the limitations imposed by section 171 of the Criminal Procedure Code (Cap. 75), a court may order any person convicted of an offence to pay the costs of and incidental to the prosecution or any part thereof.
|
| 33. |
Security for keeping the peace
A person convicted of an offence not punishable with death may, instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, and may be ordered to be imprisoned until such recognizance, with sureties, if so directed, is entered into; but so that the imprisonment for not entering into the recognizance shall not extend for a term longer than one year, and shall not, together with the fixed term of imprisonment, if any, extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.
|
| 34. |
Recognizances
| (1) |
If at any time the court which convicted an offender is satisfied that he has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
|
| (2) |
An offender when apprehended on any such warrant shall be brought forthwith before the court by which the warrant was issued, and the court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned for his appearing for hearing or sentence; and the court may, after hearing the case, pass sentence.
|
| (3) |
The provisions of sections 128, 129 and 131 of the Criminal Procedure Code (Cap. 75) shall apply mutatis mutandis to recognizances taken under section 33 of this Code. [Act No. 22 of 1959, s. 30(2).]
|
|
| 35. |
Absolute and conditional discharge
| (1) |
Where a court by or before which a person is convicted of an offence is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act (Cap. 64) is not appropriate, the court may make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein.
|
| (2) |
Before making an order discharging a person subject to the condition referred to in subsection (1), the court shall explain to the offender in ordinary language that if he commits another offence during the period of conditional discharge he shall be liable to be sentenced for the original offence.
|
| (3) |
Where an order discharging an offender under this section is made, the court may order him to pay the whole, or any part, of the costs of and incidental to the prosecution, and of any compensation adjudged under section 31. [Act No. 54 of 1960, s. 8.]
|
|
| 36. |
General punishment for misdemeanours
When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.
|
| 37. |
Sentences when cumulative
Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:
Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof.
|
| 38. |
Sentence on escaped convict
When sentence is passed under this Code on an escaped convict, that sentence—
| (a) |
if of death, fine or corporal punishment, shall, subject to the provisions of this Code, take effect immediately;
|
| (b) |
if of imprisonment, shall run consecutively or concurrently, as the court shall order, with the unexpired portion of the sentence which the convict was undergoing when he escaped.
|
|
| 38. |
Sentence on escaped convict
When sentence is passed under this Code on an escaped convict, that sentence—
| (a) |
if of death, or fine, shall, subject to the provisions of this Code, take effect immediately;
|
| (b) |
if of imprisonment, shall run consecutively or concurrently, as the court shall order, with the unexpired portion of the sentence which the convict was undergoing when he escaped.
|
|
| 39. |
Cancellation or suspension of certificate of competency
| (1) |
Where any person has been convicted under this Code of an offence connected with the driving of any vehicle in respect of which a certificate of competency is required, the court before which the person is convicted may in addition to or in substitution for any other punishment—
| (a) |
if the person convicted holds a certificate of competency, suspend the certificate for such time as the court thinks fit, or cancel the certificate and declare the person convicted disqualified for obtaining another certificate either permanently or for a stated period, and shall cause particulars of the conviction and of any order of the court made under this section to be endorsed upon the certificate, and shall also cause a copy of these particulars and of the order to be sent to the Commissioner of Police, who shall endorse them on the duplicate certificate in his custody; or
|
| (b) |
if the person convicted does not hold a certificate of competency, declare him disqualified for obtaining such a certificate for such time as the court thinks fit.
|
|
| (2) |
Any person so convicted as aforesaid shall, if he holds a certificate of competency, produce the certificate, within such reasonable time as the court may direct, for the purpose of the making of the endorsement referred to in subsection (1), and a person who fails so to produce the certificate is guilty of a misdemeanour and is liable to a fine not exceeding six hundred shillings or to imprisonment for a term not exceeding six months.
|
| (3) |
A certificate of competency which has been suspended by the court under this section shall, during the term of the suspension, be of no effect, and a person whose certificate is suspended or who is declared by the court to be disqualified for obtaining a certificate of competency shall, during the period of the suspension or disqualification, as the case may be, be disqualified for obtaining such a certificate.
|
| (4) |
Any person who is, by virtue of an order of the court under this section, disqualified for obtaining a certificate of competency may, within fourteen days of the making of the order, appeal against the order to the High Court; and the court by which the order was made may, if it thinks fit, direct that the operation of the order be suspended pending the appeal.
|
| (5) |
| (a) |
who, while disqualified by an order of a court under this section for obtaining a certificate of competency, applies for or obtains such a certificate while so disqualified; or
|
| (b) |
whose certificate of competency has been endorsed pursuant to this section applies for or obtains another such certificate without disclosing the particulars of the endorsement,
|
|
is guilty of an offence and is liable to a fine not exceeding two thousand shillings or to imprisonment for a term not exceeding six months, or to both.
|
|
PART II – CRIMES
|
CHAPTER VII – TREASON AND ALLIED OFFENCES
| 40. |
Treason
| (1) |
Any person who, owing allegiance to the Republic, in Kenya or elsewhere—
| (a) |
compasses, imagines, invents, devises or intends—
| (i) |
the death, maiming or wounding, or the imprisonment or restraint, of the President; or |
| (ii) |
the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or |
| (iii) |
the overthrow by unlawful means of the Government; and |
|
| (b) |
expresses, utters or declares any such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed,
|
is guilty of the offence of treason.
|
| (2) |
Any person who, owing allegiance to the Republic—
| (a) |
levies war in Kenya against the Republic; or
|
| (b) |
is adherent to the enemies of the Republic, or gives them aid or comfort, in Kenya or elsewhere; or
|
| (c) |
instigates whether in Kenya or elsewhere any person to invade Kenya with an armed force,
|
is guilty of the offence of treason.
|
| (3) |
Any person who is guilty of the offence of treason shall be sentenced to death.
|
|
| 42. |
Concealment of treason
| (a) |
becomes an accessory after the fact to treason; or
|
| (b) |
knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to the Attorney-General, administrative officer, magistrate, or officer in charge of a police station, or use other reasonable endeavours to prevent the commission of the offence,
|
is guilty of the felony termed misprision of treason and is liable to imprisonment for life.
|
| 43. |
Treasonable felony
Any person who, not owing allegiance to the Republic, in Kenya or elsewhere, commits any act or combination of acts which, if it were committed by a person who owed such allegiance, would amount to the offence of treason under section 40, is guilty of a felony and is liable to imprisonment for life.
|
| 43A. |
Treachery
Any person who, with intent to help the enemy, does any act which is designed or likely to give assistance to the enemy, or to interfere with the maintenance of public order or the government of Kenya, or to impede the operation of the disciplined forces, or to endanger life, is guilty of a felony and is liable to imprisonment for life.
|
| 44. |
Promoting warlike undertaking
Any person who, without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by or against any person or body or group of persons in Kenya, is guilty of a felony and is liable to imprisonment for life.
|
| 45. |
Provisions as to trial for treason, etc.
| (1) |
A person cannot be tried for treason, or for any of the felonies defined in sections 42, 43, 43A and 44, unless the prosecution is commenced within two years after the offence is committed.
|
| (2) |
No person charged with treason, or with any of such felonies, may be convicted, except on his own plea of guilty, or on the evidence in open court of two witnesses at the least to one overt act of the kind of treason or felony alleged, or the evidence of one witness to one overt act and one other witness to another overt act of the same kind of treason or felony.
|
| (2A) |
If the facts or matters alleged in a charge for any of such felonies amount in law to treason, and if the facts or matters proved at the trial of the person charged amount in law to treason, such person shall not, by reason thereof, be entitled to be acquitted of the felony; but the person tried for the felony shall not afterwards be prosecuted for treason upon the same facts.
|
| (2B) |
A person charged with treason or with any of such felonies who is in Kenya may, whether or not the offence was committed in Kenya, be taken in custody to any place in Kenya, and may be proceeded against, charged, tried and punished in any place in Kenya, as if the offence had been committed in Kenya, and for all purposes incidental to or consequential on the trial or punishment of the offence the offence shall be deemed to have been committed in Kenya.
|
| (3) |
This section does not apply to cases in which the overt act of treason alleged is the killing of the President, or a direct attempt to endanger the life or injure the person of the President.
|
|
| 46. |
Dissuasion from enlistment
Any person who wilfully dissuades or attempts to dissuade any other person from entering the disciplined forces or the police force is guilty of an offence and is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or to both:
Provided that the provisions of this section do not extend to—
| (i) |
comments or criticisms of the policy of the Government in relation to such forces as aforesaid made in good faith; or |
| (ii) |
advice given privately and in good faith by one person to another person for the benefit of that other person or of anyone in whom that other person is interested. [Act No. 54 of 1960, s. 9, Act No. 3 of 1965, s. 26, Act No. 24 of 1967, Sch.] |
|
| 47. |
Inciting to mutiny
Any person who advisedly attempts to effect any of the following purposes, that is to say—
| (a) |
to seduce any member of the disciplined forces or any police officer from his duty or allegiance; or
|
| (b) |
to incite any such persons to commit an act of mutiny or any traitorous or mutinous act; or
|
| (c) |
to incite any such persons to make or endeavour to make a mutinous assembly,
|
is guilty of a felony and is liable to imprisonment for life.
|
| 48. |
Aiding, etc., to mutiny, or inciting sedition or disobedience
| (a) |
aids or abets, or is accessory to, any act of mutiny by, or
|
| (b) |
incites to sedition or to disobedience to any lawful order given by a superior officer, any member of the disciplined forces or any police officer,
|
is guilty of a misdemeanour.
|
| 49. |
Inducing desertion
Any person who, by any means whatever, directly or indirectly—
| (a) |
procures or persuades or attempts to procure or persuade to desert; or
|
| (b) |
aids or abets, or is accessory to, the desertion of; or
|
| (c) |
having reason to believe he is a deserter, harbours or aids in concealing, any member of the military forces of Kenya or any police officer is guilty of a misdemeanour and is liable to imprisonment for six months.
|
|
| 50. |
Aiding prisoners of war to escape
| (a) |
knowingly and advisedly aids an alien enemy, being a prisoner of war in Kenya, whether the prisoner is confined in a prison or elsewhere or is suffered to be at large on his parole, to escape from his prison or place of confinement, or, if he is at large on his parole, to escape from Kenya, is guilty of a felony and is liable to imprisonment for life;
|
| (b) |
negligently and unlawfully permits the escape of any such person as is mentioned in paragraph (a) is guilty of a misdemeanour.
|
|
| 51. |
Definition of overt act
In the case of any of the offences defined in this Chapter, when the manifestation by an overt act of an intention to effect any purpose is an element of the offence, every act of conspiring with any person to effect that purpose, and every act done in furtherance of the purpose by any of the persons conspiring, is deemed to be an overt act manifesting the intention.
|
| 52. |
Power to prohibit publications
| (1) |
If it appears to the Minister that it is necessary in the interests of public order, health or morals, the security of Kenya, the administration of justice or the maintenance of the authority and impartiality of the judiciary so to do, the Minister may, by order published in the Gazette, and subject to such exceptions and conditions, if any, as may be specified in the order, prohibit the importation of any publication or, in the case of a periodical publication, any or all past or future issues thereof, or any or all past or future publications of any person specified in the order.
|
| (2) |
If it appears to the Minister to be reasonably required in the interests of defence, public safety, public order, public morality or public health and to be reasonably justifiable in a democratic society, the Minister may, by order published in the Gazette, and subject to such exceptions and conditions, if any, as may be specified in the order, declare any publication to be a prohibited publication, or in the case of a periodical publication, declare any or all past or future issues thereof to be prohibited publications, and may declare to be prohibited publications any or all past or future publications of any person specified in the order.
|
|
| 52. |
Power to prohibit publications
| (1) |
Where the Minister, on reasonable grounds, considers that it is necessary in the interests of public order, health or morals, the security of Kenya, and to be reasonably justifiable in a democratic society, the Minister may, by order published in the Gazette, prohibit the importation of any publication.
|
| (2) |
Where the Minister, on reasonable grounds, considers that it is necessary in the interests of defence, public order, public morality or public health so to do and to be reasonably justifiable in a democratic society, the Minister may, by order in the Gazette, declare any publication to be a prohibited publication.
|
| (3) |
There is established a Board to be known as the Prohibited Publications Review Board (hereinafter referred to as “the Board”) which shall comprise—
| (a) |
the Attorney-General or his representative, who shall be the chairman;
|
| (b) |
the Commissioner of Police or his representative;
|
| (c) |
the Director of Medical Services or his representative;
|
| (d) |
two persons from the religious community, to be appointed by the Minister; and
|
| (e) |
two other persons of integrity, good character and good standing to be appointed by the Minister.
|
|
| (4) |
The members of the Board appointed under paragraphs (d) and (e) of subsection (3) shall hold office for terms of three years each, but shall be eligible for reappointment:
Provided that such members shall not hold office for more than two terms.
|
| (5) |
The purposes for which the Board is established shall be—
| (a) |
to review all publications prohibited under this section as at the commencement of this subsection and advise the Minister as to whether such prohibition should be lifted; and
|
| (b) |
to advise the Minister generally on the exercise of his powers under this section.
|
|
| (6) |
The Minister shall, as soon as reasonably practicable after the commencement of this subsection, cause a copy of each of the publications referred to in paragraph (a) of subsection (5) to be considered by the Board pursuant to the provisions of that paragraph.
|
| (7) |
The Minister shall, within twenty-one days of the prohibition of any publication under this section, cause a copy thereof to be forwarded to the Board for consideration and appropriate advice.
|
| (8) |
The Minister shall be obliged to act in accordance with any advice given by the Board under this section.
|
| (9) |
The quorum for the conduct of a meeting of the Board shall be four members.
|
| (10) |
Subject to subsection (9), the Board may regulate its own procedure.
|
| (11) |
There shall be a secretary of the Board and such other staff as may be necessary for the proper functioning of the Board.
|
| (12) |
The secretary and other staff of the Board shall be public officers appointed by the Minister for that purpose.
|
| (13) |
The expenses of the Board shall be defrayed out of moneys provided by Parliament for that purpose.
|
|
| 52. |
Power to prohibit publications
| (1) |
Where the Minister, on reasonable grounds, considers that it is necessary in the interests of public order, health or morals, the security of Kenya, and to be reasonably justifiable in a democratic society, the Minister may, by order published in the Gazette, prohibit the importation of any publication.
|
| (2) |
Where the Minister, on reasonable grounds, considers that it is necessary in the interests of defence, public order, public morality or public health so to do and to be reasonably justifiable in a democratic society, the Minister may, by order in the Gazette, declare any publication to be a prohibited publication.
|
| (3) |
There is established a Board to be known as the Prohibited Publications Review Board (hereinafter referred to as “the Board”) which shall comprise—
| (a) |
the Attorney-General or his representative, who shall be the chairman;
|
| (aa) |
the Director of Public Prosecutions or his representative;
|
| (b) |
the Commissioner of Police or his representative;
|
| (c) |
the Director of Medical Services or his representative;
|
| (d) |
two persons from the religious community, to be appointed by the Minister; and
|
| (e) |
two other persons of integrity, good character and good standing to be appointed by the Minister.
|
|
| (4) |
The members of the Board appointed under paragraphs (d) and (e) of subsection (3) shall hold office for terms of three years each, but shall be eligible for reappointment:
Provided that such members shall not hold office for more than two terms.
|
| (5) |
The purposes for which the Board is established shall be—
| (a) |
to review all publications prohibited under this section as at the commencement of this subsection and advise the Minister as to whether such prohibition should be lifted; and
|
| (b) |
to advise the Minister generally on the exercise of his powers under this section.
|
|
| (6) |
The Minister shall, as soon as reasonably practicable after the commencement of this subsection, cause a copy of each of the publications referred to in paragraph (a) of subsection (5) to be considered by the Board pursuant to the provisions of that paragraph.
|
| (7) |
The Minister shall, within twenty-one days of the prohibition of any publication under this section, cause a copy thereof to be forwarded to the Board for consideration and appropriate advice.
|
| (8) |
The Minister shall be obliged to act in accordance with any advice given by the Board under this section.
|
| (9) |
The quorum for the conduct of a meeting of the Board shall be four members.
|
| (10) |
Subject to subsection (9), the Board may regulate its own procedure.
|
| (11) |
There shall be a secretary of the Board and such other staff as may be necessary for the proper functioning of the Board.
|
| (12) |
The secretary and other staff of the Board shall be public officers appointed by the Minister for that purpose.
|
| (13) |
The expenses of the Board shall be defrayed out of moneys provided by Parliament for that purpose.
|
|
| 52. |
Power to prohibit publications
| (1) |
Where the Minister, on reasonable grounds, considers that it is necessary in the interests of public order, health or morals, the security of Kenya, and to be reasonably justifiable in a democratic society, the Minister may, by order published in the Gazette, prohibit the importation of any publication.
|
| (2) |
Where the Minister, on reasonable grounds, considers that it is necessary in the interests of defence, public order, public morality or public health so to do and to be reasonably justifiable in a democratic society, the Minister may, by order in the Gazette, declare any publication to be a prohibited publication.
|
| (3) |
There is established a Board to be known as the Prohibited Publications Review Board (hereinafter referred to as “the Board”) which shall comprise—
| (a) |
the Attorney-General or his representative, who shall be the chairman;
|
| (aa) |
the Director of Public Prosecutions or his representative;
|
| (b) |
the Inspector-General or his representative;
|
| (c) |
the Director of Medical Services or his representative;
|
| (d) |
two persons from the religious community, to be appointed by the Minister; and
|
| (e) |
two other persons of integrity, good character and good standing to be appointed by the Minister.
|
|
| (4) |
The members of the Board appointed under paragraphs (d) and (e) of subsection (3) shall hold office for terms of three years each, but shall be eligible for reappointment:
Provided that such members shall not hold office for more than two terms.
|
| (5) |
The purposes for which the Board is established shall be—
| (a) |
to review all publications prohibited under this section as at the commencement of this subsection and advise the Minister as to whether such prohibition should be lifted; and
|
| (b) |
to advise the Minister generally on the exercise of his powers under this section.
|
|
| (6) |
The Minister shall, as soon as reasonably practicable after the commencement of this subsection, cause a copy of each of the publications referred to in paragraph (a) of subsection (5) to be considered by the Board pursuant to the provisions of that paragraph.
|
| (7) |
The Minister shall, within twenty-one days of the prohibition of any publication under this section, cause a copy thereof to be forwarded to the Board for consideration and appropriate advice.
|
| (8) |
The Minister shall be obliged to act in accordance with any advice given by the Board under this section.
|
| (9) |
The quorum for the conduct of a meeting of the Board shall be four members.
|
| (10) |
Subject to subsection (9), the Board may regulate its own procedure.
|
| (11) |
There shall be a secretary of the Board and such other staff as may be necessary for the proper functioning of the Board.
|
| (12) |
The secretary and other staff of the Board shall be public officers appointed by the Minister for that purpose.
|
| (13) |
The expenses of the Board shall be defrayed out of moneys provided by Parliament for that purpose. [Act No. 54 of 1960, s. 11, Act No. 21 of 1966, First Sch., Act No. 10 of 1969, Sch., Act No. 10 of 1997, Sch., Act No. 12 of 2012, Sch., Act No. 20 of 2020, Sch.]
|
|
| 53. |
Penalty for prohibited publications
| (1) |
Any person who, otherwise than in his capacity and in the course of his duties as a public officer, prints, makes, imports, publishes, sells, supplies, offers for sale or supply, distributes, reproduces or has in his possession or under his control any prohibited publication is guilty of an offence and is liable to imprisonment for a term not exceeding three years:
Provided that no person who—
| (i) |
forthwith on the importation of a publication being prohibited under section 52 of this code, or on the declaration of a publication as a prohibited publication, as the case may be, delivers to the nearest administrative officer or to the police officer in charge of the nearest police station all copies of the publication in his possession or under his control; or |
| (ii) |
by reason of its being sent or delivered to him without his knowledge or privity or in response to a request made by him before the importation thereof was prohibited, or before the declaration of the publication as a prohibited publication, as the case may be, comes into possession or control of a prohibited publication, and who, forthwith on the nature of its contents becoming known to him, delivers to the nearest administrative officer or the police officer in charge of the nearest police station all copies of the publication so coming into his possession or control, |
shall be convicted of an offence under this section in respect of the copies so delivered by him as aforesaid.
|
| (2) |
Where in any prosecution under this section it is proved that a person printed, made, imported, published, sold, supplied, offered for sale or supply, distributed, reproduced or had in his possession or under his control a prohibited publication, it shall be presumed that he knew the nature and contents of the publication, unless and until he proves to the satisfaction of the court—
| (a) |
that he was not aware of the nature or contents of the publication in respect of which he is charged; and
|
| (b) |
that he printed, made, imported, published, sold, supplied, offered for sale or supply, distributed, reproduced or had in his possession or under his control the publication in such circumstances that at no time did he have reasonable cause to suspect that it was a prohibited publication.
|
|
|
| 54. |
Seizure and disposal of prohibited publications
| (1) |
Any police officer or administrative officer may seize and detain any prohibited publication which he finds in circumstances which raise a reasonable presumption that an offence under this Act has been, is being or is intended to be committed in relation thereto, or which he finds abandoned or without an apparent owner or possessor or in the possession or custody of any unauthorized person.
|
| (2) |
| (i) |
officer of the Kenya Posts and Telecommunications Corporation authorized in that behalf, whether personally or by reference to a class to which such officer belongs, by the managing director; |
| (ii) |
officer of the Customs and Excise Department authorized in that behalf, whether personally or by reference to a class to which such officer belongs, by the Commissioner of Customs and Excise; |
| (iii) |
police officer not below the rank of Assistant Inspector; and |
| (iv) |
any other officer authorized in that behalf, whether personally or by reference to a class to which the officer belongs, by the Minister, may detain, open and examine any article or package which he suspects to contain any prohibited publication, and during the examination may detain any person importing, distributing or posting the article or package or in whose possession the article or package is found. |
| (b) |
If any prohibited publication is found in any such article or package as aforesaid, the whole article or package may be impounded and retained by the officer, and the person importing, distributing or posting it or in whose possession it was found may be arrested by the officer and delivered to and detained in police custody to be dealt with according to law.
|
|
| (3) |
Any prohibited publication which is seized or detained as aforesaid, or which in any other manner comes into the possession or custody of any court or any public officer, shall be forfeited and may be destroyed or otherwise disposed of, as may be directed by such court or by the Commissioner of Police, as the case may be.
|
|
| 56. |
Unlawful oaths to commit capital offences
| (1) |
administers, or is present at and consents to the administering of, any oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence punishable with death; or
|
| (2) |
takes any such oath or engagement, not being compelled to do so, is guilty of a felony, and is liable to imprisonment for life.
|
|
| 57. |
Other unlawful oaths to commit offences
| (1) |
administers, or is present at and consents to the administering of, any oath or engagement in the nature of an oath, purporting to bind the person who takes it to act in any of the ways following, that is to say—
| (a) |
to engage in any mutinous or seditious enterprise;
|
| (b) |
to commit any offence not punishable with death;
|
| (c) |
to disturb the public peace;
|
| (d) |
to be of any association, society or confederacy, formed for the purpose of doing any such act as aforesaid;
|
| (e) |
to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander or other person not having authority by law for that purpose;
|
| (f) |
not to inform or give evidence against any associate, confederate or other person;
|
| (g) |
not to reveal or discover any unlawful association, society or confederacy, or any illegal act done or to be done, or any illegal oath or engagement that may have been administered or tendered to or taken by himself or any other person, or the import of any such oath or engagement ; or
|
|
| (2) |
takes any such oath or engagement, not being Compelled to do so, is guilty of a felony, and is liable to imprisonment for seven years.
|
|
| 58. |
person who takes any such oath or engagement as is mentioned in the two last preceding sections cannot set up as a defence that he was compelled to do so, unless within fourteen days after taking it, or, if he is prevented by actual force or sickness, within fourteen days after the termination of such prevention, he declares by information on oath before a magistrate, or, if he is on actual service in the military forces of the Colony or in the police force, either by such information. or by information to his commanding officer, the whole of what he knows concerning the matter, including the person or persons by whom and in whose presence, and the place where and the time when, the oath or engagement was -id-ministered or taken.
|
| 59. |
Unlawful oaths to commit capital offences
| (a) |
is present at, and consents to the administering of, any oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence punishable with death; or
|
| (b) |
takes any such oath or engagement, not being compelled to do so,
|
is guilty of a felony and is liable to imprisonment for life. [Act No. 52 of 1955, s. 4.]
|
| 60. |
Administration of unlawful oaths to commit capital offences
Any person who administers an oath, or engagement in the nature of an oath, purporting to bind the person who takes it to commit any offence, punishable with death, is guilty of a felony and shall be sentenced to death. [Act No. 52 of 1955, s. 5.]
|
| 61. |
Unlawful oaths to commit other offences
| (a) |
administers, or is present at and consents to the administering of, any oath or engagement in the nature of an oath, purporting to bind the person who takes it to act in any of the ways following, that is to say—
| (i) |
to engage in any mutinous or seditious enterprise; |
| (ii) |
to commit any offence not punishable with death; |
| (iii) |
to disturb the public peace; |
| (iv) |
to be of any association, society or confederacy, formed for the purpose of doing any such act as aforesaid; |
| (v) |
to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander or other person not having authority by law for that purpose; |
| (vi) |
not to inform or give evidence against any associate, confederate or other person; |
| (vii) |
not to reveal or discover any unlawful association, society or confederacy, or any illegal act done or to be done, or any illegal oath or engagement that may have been administered or tendered to or taken by himself or any other person, or the import of any such oath or engagement; or |
|
| (b) |
takes any such oath or engagement, not being compelled to do so,
|
is guilty of a felony and is liable to imprisonment for ten years. [Act No. 53 of 1952, Sch.]
|
| 62. |
Compelling another person to take an oath
| (1) |
Any person who by the use of physical force, or by threat or intimidation of any kind, compels another person to take an oath or engagement in the nature of an oath purporting to bind the person who takes it to act or not to act in any way is guilty of a felony and is liable to imprisonment for ten years.
|
| (2) |
Any person who is present at and consents to the administering, by physical force or under threat or intimidation of any kind, of any oath or engagement in the nature of an oath, to any person purporting to bind the person who takes it to act or not to act in any way is guilty of a felony and is liable to imprisonment for seven years. [Act No. 50 of 1950, s. 2, Act No. 53 of 1952, Sch.]
|
|
| 63. |
Compulsion, how far a defence
It shall not be a defence for a person who takes any oath or engagement in the nature of an oath mentioned in section 59 or section 61 to prove that he was compelled to do so unless, within five days after the taking of the oath or engagement in the nature of an oath or, if he is prevented by physical force or sickness, within five days after the termination of the physical force or sickness, he reported to the police, or if he is in the actual service of the disciplined forces or the police force either he so reported as aforesaid or he reported to his commanding officer, everything he knows concerning the matter, including the person or persons by whom and in whose presence, and the place where, and the time when, the oath or engagement was administered or taken.
|
| 64. |
Presence at oath administration
Any person who is present at the administering of an oath or engagement in the nature of an oath mentioned in section 59, section 61 or section 62 shall be deemed to have consented to the administering of the oath or engagement unless, within five days thereafter or, if he is prevented by physical force or sickness, within five days after the termination of the physical force or sickness, he reports to the police, or, if he is in the actual service of the disciplined forces or the police force he so reports as aforesaid, or he reports to his commanding officer, everything he knows concerning the matter, including the person or persons by whom and in whose presence, and the place where, and the time when, the oath or engagement in the nature of an oath was administered.
|
| 65. |
Unlawful drilling
| (1) |
| (a) |
without the permission of the Minister trains or drills any other person to the use of arms or the practice of military exercises, movements or evolutions; or
|
| (b) |
is present at any meeting or assembly of persons, held without the permission of the Minister, for the purpose of training or drilling any other persons to the use of arms or the practice of military exercises, movements or evolutions,
|
is guilty of a felony and is liable to imprisonment for seven years.
|
| (2) |
Any person who, at any meeting or assembly held without the permission of the Minister, is trained or drilled to the use of arms, or the practice of military exercises, movements or evolutions, or who is present at the meeting or assembly for the purpose of being so trained or drilled, is guilty of a misdemeanour. [Act No. 36 of 1962, Sch.]
|
|
| 66. |
Alarming publications
| (1) |
Any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanour.
|
| (2) |
It shall be a defence to a charge under subsection (1) if the accused proves that, prior to publication, he took such measures to verify the accuracy of the statement, rumour or report as to lead him reasonably to believe that it was true.
|
|
| 66A. |
Prohibited publications and broadcasts
| (1) |
A person who publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.
|
| (2) |
A person who publishes or broadcasts any information which undermines investigations or security operations by the National Police Service or the Kenya Defence Forces commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or a imprisonment for a term not exceeding three years, or both.
|
| (3) |
The freedom of expression and the freedom of the media under Articles 33 and 34 of the Constitution shall be limited as specified under this section for the purposes of limiting the publication or distribution of material likely to cause public alarm, incitement to violence or disturb public peace.
|
|
|
|
CHAPTER VIII – OFFENCES AFFECTING RELATIONS
WITH FOREIGN STATES AND EXTERNAL TRANQUILITY
| 67. |
Defamation of foreign princes
Any person who, without such justification or excuse as would be sufficient in the case of the defamation of a private person, publishes anything intended to be read, or any sign or visible representation, tending to degrade, revile or expose to hatred or contempt any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Kenya and the country to which such prince, potentate, ambassador or dignitary belongs is guilty of a misdemeanour.
|
| 68. |
Foreign enlistment
| (1) |
Any person who, without the authority of the President in writing—
| (a) |
prepares or fits out any naval or military expedition to proceed against the dominions of any friendly state, or is engaged in such preparation or fitting out or assists therein or is employed in any capacity in such expedition; or
|
| (b) |
being a citizen of Kenya accepts or agrees to accept any commission or engagement in the military, naval, air, police or other armed forces or service of any nature whatsoever, or, whether a citizen of Kenya or not, induces any other person to accept or agree to accept any commission of engagement in the military, naval, air, police or other armed forces of any foreign state; or
|
| (c) |
being a citizen of Kenya, quits or goes on board any vessel with a view of quitting Kenya, with intent to accept any commission or engagement in the military, naval, air, police or other armed forces or service of any nature whatsoever of any, foreign state; or
|
| (d) |
being the master or owner of any vessel, knowingly either takes on board, or has on board such vessel, any illegally enlisted person; or
|
| (e) |
with intent or knowledge, or having reasonable cause to believe that the same will be employed in the military or naval service of any foreign state at war with a friendly state, builds, agrees to build, causes or allows to be dispatched any vessel, or issues or delivers any commission for any vessel,
|
shall, unless he proves to the satisfaction of the court that in any case falling within provisions of paragraph (b) and (c) the commission or engagement concerned was not voluntary, be guilty of an offence and liable to imprisonment for ten years.
|
| (2) |
Notwithstanding subsection (1), a person building, causing to be built or equipping a vessel in pursuance of a contract made before the commencement of the war referred to in paragraph (e) of subsection (1), is not liable to any of the penalties specified in that subsection in respect of such building or equipping if—
| (a) |
upon a proclamation of neutrality being issued by the President he forthwith gives notice to the Minister that he is so building, causing to be built or equipping such vessel and furnishes such particulars of contract and of any matters relating to, or done, or to be done, under the contract as may be required by the Minister; and
|
| (b) |
he gives such security and takes and permits to be taken such other measures, if any, as the Minister may prescribe for ensuring that such vessel shall not be dispatched, delivered or removed without the authority of the President until the termination of the war.
|
|
|
| 69. |
Declaration by Governor in Council
| (1) |
When a society is declared to be an unlawful society by an order of the Governor in Council, the following consequences shall ensue—
|
| (a) |
the property of the society within the Colony shall forthwith vest in an officer appointed by the Governor;
|
| (b) |
the officer appointed by the Governor shall proceed to wind up the affairs of the society, and after satisfying and providing for all debts and liabilities of the society and the cost of the winding up, if there shall then be any surplus assets shall prepare and submit to the Governor a scheme for the application of such surplus assets;
|
| (c) |
such scheme, when submitted for approval, may be amended by the Governor in such way as he shall think proper in the circumstances of the case;
|
| (d) |
the approval of the Governor to such scheme shall be denoted by the endorsement thereon of a memorandum of such approval signed by the Governor, and, upon this being done, the surplus assets, the subject of the scheme, shall be held by such officer upon the terms and to the purposes thereby prescribed;
|
| (e) |
for the purpose of the winding up, the officer appointed by the Governor shall have all the powers vested in the Official Receiver for the purpose of the discovering of the property of a debtor and the realisation thereof.
|
| (2) |
The Governor may, for the purpose of enabling a society to wind up its own affairs, suspend the operation of. this section for such period as to him shall seem expedient.
|
| (3) |
The provisions of sub-section (1) shall not apply to any property seized at any time under section 68.
|
|
| 69. |
Declaration by Governor in Council
| (1) |
When a society is declared to be an unlawful society by an order of the Governor in Council, the following consequences shall ensue—
|
| (a) |
the property of the society within the Colony shall forthwith vest in an officer appointed by the Governor;
|
| (b) |
the officer appointed by the Governor shall proceed to wind up the affairs of the society, and after satisfying and providing for all debts and liabilities of the society and the cost of the winding up, if there shall then be any surplus assets shall prepare and submit to the Governor a scheme for the application of such surplus assets;
|
| (c) |
such scheme, when submitted for approval, may be amended by the Governor in such way as he shall think proper in the circumstances of the case;
|
| (d) |
the approval of the Governor to such scheme shall be denoted by the endorsement thereon of a memorandum of such approval signed by the Governor, and, upon this being done, the surplus assets, the subject of the scheme, shall be held by such officer upon the terms and to the purposes thereby prescribed;
|
| (e) |
for the purpose of the winding up, the officer appointed by the Governor shall have all the powers vested in the Official Receiver for the purpose of the discovering of the property of a debtor and the realisation thereof.
|
| (2) |
The Governor may, for the purpose of enabling a society to wind up its own affairs, suspend the operation of. this section for such period as to him shall seem expedient.
|
| (3) |
The provisions of sub-section (1) shall not apply to any property seized at any time under section 68.
|
|
|
|
CHAPTER IX – UNLAWFUL ASSEMBLIES, RIOTS
AND OTHER OFFENCES AGAINST PUBLIC TRANQUILITY
| 77. |
Subversive activities
| (1) |
Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding three years.
|
| (2) |
No prosecution for an offence under this section shall be instituted without the consent of the Attorney-General.
|
| (3) |
For the purposes of this section, “subversive” means—
| (a) |
supporting, propagating (otherwise than with intent to attempt to procure by lawful means the alteration, correction, defeat, avoidance or punishment thereof) or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice;
|
| (b) |
inciting to violence or other disorder or crime, or counselling defiance of or disobedience to the law or lawful authority;
|
| (c) |
intended or calculated to support or assist or benefit, in or in relation to such acts or intended acts as are hereinafter described, persons who act, intend to act or have acted in a manner prejudicial to public order, the security of Kenya or the administration of justice, or who incite, intend to incite or have incited to violence or other disorder or crime, or who counsel, intend to counsel or have counselled defiance of or disobedience to the law or lawful authority;
|
| (d) |
indicating, expressly or by implication, any connexion, association or affiliation with, or support for, any unlawful society;
|
| (e) |
intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the removal of any causes of hatred or enmity between races or communities;
|
| (f) |
intended or calculated to bring into hatred or contempt or to excite disaffection against any public officer, or any class of public officers, in the execution of his or their duties, or any naval, military or air force or the National Youth Service for the time being lawfully in Kenya or any officer or member of any such force in the execution of his duties:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the remedying or correction of errors, defects or misconduct on the part of any such public officer, force or officer or member thereof as aforesaid and without attempting to bring into hatred or contempt, or to excite disaffection against, any such person or force; or
|
| (g) |
intended or calculated to seduce from his allegiance or duty any public officer or any officer or member of any naval, military or air force or the National Youth Service for the time being lawfully in Kenya.
|
|
|
| 77. |
Subversive activities
| (1) |
Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding three years.
|
| (3) |
For the purposes of this section, “subversive” means—
| (a) |
supporting, propagating (otherwise than with intent to attempt to procure by lawful means the alteration, correction, defeat, avoidance or punishment thereof) or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice;
|
| (b) |
inciting to violence or other disorder or crime, or counselling defiance of or disobedience to the law or lawful authority;
|
| (c) |
intended or calculated to support or assist or benefit, in or in relation to such acts or intended acts as are hereinafter described, persons who act, intend to act or have acted in a manner prejudicial to public order, the security of Kenya or the administration of justice, or who incite, intend to incite or have incited to violence or other disorder or crime, or who counsel, intend to counsel or have counselled defiance of or disobedience to the law or lawful authority;
|
| (d) |
indicating, expressly or by implication, any connexion, association or affiliation with, or support for, any unlawful society;
|
| (e) |
intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the removal of any causes of hatred or enmity between races or communities;
|
| (f) |
intended or calculated to bring into hatred or contempt or to excite disaffection against any public officer, or any class of public officers, in the execution of his or their duties, or any naval, military or air force or the National Youth Service for the time being lawfully in Kenya or any officer or member of any such force in the execution of his duties:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the remedying or correction of errors, defects or misconduct on the part of any such public officer, force or officer or member thereof as aforesaid and without attempting to bring into hatred or contempt, or to excite disaffection against, any such person or force; or
|
| (g) |
intended or calculated to seduce from his allegiance or duty any public officer or any officer or member of any naval, military or air force or the National Youth Service for the time being lawfully in Kenya.
|
|
|
| 77. |
Subversive activities
| (1) |
Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.
|
| (3) |
For the purposes of this section, “subversive” means—
| (a) |
supporting, propagating (otherwise than with intent to attempt to procure by lawful means the alteration, correction, defeat, avoidance or punishment thereof) or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice;
|
| (b) |
inciting to violence or other disorder or crime, or counselling defiance of or disobedience to the law or lawful authority;
|
| (c) |
intended or calculated to support or assist or benefit, in or in relation to such acts or intended acts as are hereinafter described, persons who act, intend to act or have acted in a manner prejudicial to public order, the security of Kenya or the administration of justice, or who incite, intend to incite or have incited to violence or other disorder or crime, or who counsel, intend to counsel or have counselled defiance of or disobedience to the law or lawful authority;
|
| (d) |
indicating, expressly or by implication, any connexion, association or affiliation with, or support for, any unlawful society;
|
| (e) |
intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the removal of any causes of hatred or enmity between races or communities;
|
| (f) |
intended or calculated to bring into hatred or contempt or to excite disaffection against any public officer, or any class of public officers, in the execution of his or their duties, or any naval, military or air force or the National Youth Service for the time being lawfully in Kenya or any officer or member of any such force in the execution of his duties:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the remedying or correction of errors, defects or misconduct on the part of any such public officer, force or officer or member thereof as aforesaid and without attempting to bring into hatred or contempt, or to excite disaffection against, any such person or force; or
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| (g) |
intended or calculated to seduce from his allegiance or duty any public officer or any officer or member of any naval, military or air force or the National Youth Service for the time being lawfully in Kenya.
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| 78. |
Definition of unlawful assembly and riot
| (1) |
When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.
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| (2) |
It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
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| (3) |
When an unlawful assembly has begun to execute the purpose for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.
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| 79. |
Punishment of unlawful assembly
Any person who takes part in an unlawful assembly is guilty of a misdemeanour and is liable to imprisonment for one year. [Act No. 42 of 1951, s. 5.]
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| 80. |
Punishment of riot
Any person who takes part in a riot is guilty of a misdemeanour.
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| 81. |
Proclamation for rioters to disperse
| (1) |
Any administrative officer or magistrate, or, in his absence, any gazetted officer or inspector of the Kenya Police Force or any commissioned officer in the military forces in Kenya, in whose view twelve or more persons are riotously assembled, or who apprehends that a riot is about to be committed by twelve or more persons assembled within his view, may make or cause to be made a proclamation, in such form as he thinks fit, commanding the rioters or persons so assembled to disperse peaceably.
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| (2) |
For the purposes of this section, “military forces” includes naval and air forces.
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| 82. |
Dispersal of rioters after proclamation
If upon the expiration of a reasonable time after such proclamation made, or after the making of such proclamation has been prevented by force, twelve or more persons continue riotously assembled together, any person authorized to make proclamation, or any police officer, or any other person acting in aid of such person or police officer, may do all things necessary for dispersing the persons so continuing assembled and for apprehending them or any of them, and, if any person makes resistance, may use all such force as is reasonably necessary for overcoming such resistance, and shall not be liable in any criminal or civil proceeding for having, by the use of such force, caused harm or death to any person.
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| 83. |
Rioting after proclamation
If proclamation is made commanding the persons engaged in a riot, or assembled with the purpose of committing a riot, to disperse, every person who, at or after the expiration of a reasonable time from the making of the proclamation, takes or continues to take part in the riot or assembly, is guilty of a felony and is liable to imprisonment for life. [Act No. 53 of 1952, Sch.]
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| 84. |
Preventing or obstructing proclamation
Any person who forcibly prevents or obstructs the making of a proclamation as is in section 81 mentioned is guilty of a felony and is liable to imprisonment for life; and, if the making of the proclamation is so prevented, every person who, knowing that it has been so prevented, takes or continues to take part in the riot or assembly, is liable to imprisonment for life. [Act No. 53 of 1952, Sch.]
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| 85. |
Rioters demolishing buildings, etc.
Any persons who, being riotously assembled together, unlawfully pull down or destroy, or begin to pull down or destroy, any building, railway, machinery or structures are guilty of a felony and each of them is liable to imprisonment for life.
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| 86. |
Rioters injuring buildings, machinery, etc.
Any persons who, being riotously assembled together unlawfully damage any of the things in section 85 mentioned, are guilty of a felony and each of them is liable to imprisonment for seven years.
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| 87. |
Riotously interfering with railway, vehicle or vessel
All persons are guilty of a misdemeanor who, being riotously assembled, unlawfully and with force prevent, hinder or obstruct the loading or unloading of any railway, vehicle or vessel, or the starting or transit of any railway or vehicle, or the sailing or navigation of any vessel, or unlawfully and with force board any railway, vehicle or vessel with intent to do so.
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| 88. |
Going armed in public
Any person who goes armed in public without lawful occasion in such a manner as to cause terror to any person is guilty of a misdemeanour, and his arms may be forfeited.
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| 89. |
Possession of firearms, etc
| (1) |
Any person who, without reasonable excuse, carries or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive in circumstances which raise a reasonable presumption that the firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order is guilty of an offence and is liable to imprisonment for a term not exceeding five years.
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| (2) |
Any person who consorts with, or is found in the company of, another person who, in contravention of subsection (1), is carrying or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive, in circumstances which raise a reasonable presumption that he intends to act or has recently acted with such other person in a manner or for a purpose prejudicial to public order, is guilty of an offence and is liable to imprisonment for a term not exceeding five years.
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| (3) |
In any prosecution for an offence under this section, it shall be presumed, until the contrary is proved, that a weapon having the appearance of a firearm is a firearm.
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| (4) |
In this section—
“ammunition” has the meaning assigned to it by the Firearms Act ( Cap. 114);
“explosive” means any explosive within the meaning of the Explosives Act ( Cap. 115);
“firearm” has the meaning assigned to it by the Firearms Act;
“incendiary material” means any material capable of being used for causing damage to property by fire and intended by the person having it in his possession or under his control for such use;
“offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person having it in his possession or under his control for such use. [Act No. 54 of 1960, s. 17.]
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| 89. |
Possession of firearms, etc
| (1) |
Any person who, without reasonable excuse, carries or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive in circumstances which raise a reasonable presumption that the firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order is guilty of an offence and is liable to imprisonment for a term of not less than seven years and not more than fifteen years.
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| (2) |
Any person who consorts with, or is found in the company of, another person who, in contravention of subsection (1), is carrying or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive, in circumstances which raise a reasonable presumption that he intends to act or has recently acted with such other person in a manner or for a purpose prejudicial to public order, is guilty of an offence and is liable to imprisonment for a term not exceeding five years.
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| (3) |
In any prosecution for an offence under this section, it shall be presumed, until the contrary is proved, that a weapon having the appearance of a firearm is a firearm.
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| (4) |
In this section—
“ammunition” has the meaning assigned to it by the Firearms Act ( Cap. 114);
“explosive” means any explosive within the meaning of the Explosives Act ( Cap. 115);
“firearm” has the meaning assigned to it by the Firearms Act;
“incendiary material” means any material capable of being used for causing damage to property by fire and intended by the person having it in his possession or under his control for such use;
“offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person having it in his possession or under his control for such use.
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| 90. |
Forcible entry
Any person who, in order to take possession thereof, enters on any lands or tenements in a violent manner, whether the violence consists in actual force applied to any other person or in threats or in breaking open any house or in collecting an unusual number of people, and whether he is entitled to enter on the land or not, is guilty of the misdemeanour termed forcible entry:
Provided that a person who enters upon lands or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry.
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| 91. |
Forcible detainer
Any person who, being in actual possession of land without colour of right, holds possession of it, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person entitled by law to the possession of the land is guilty of the misdemeanour termed forcible detainer.
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| 92. |
Affray
Any person who takes part in a fight in a public place is guilty of a misdemeanour and is liable to imprisonment for one year.
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| 93. |
Challenge to duel
Any person who challenges another to fight a duel, or attempts to provoke another to fight a duel, or attempts to provoke any person to challenge another to fight a duel, is guilty of a misdemeanour.
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| 94. |
Offensive conduct conducive to breaches of the peace
| (1) |
Any person who in a public place or at a public gathering uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned is guilty of an offence and is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or to both.
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| (2) |
In this section, “public gathering” means—
| (a) |
any meeting, gathering or concourse of ten or more persons in any public place; or
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| (b) |
any meeting or gathering which the public or any section of the public or more than fifty persons are permitted to attend or do attend, whether on payment or otherwise; or
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| (c) |
any procession in, to or from a public place. [Act No. 54 of 1960, s. 18.]
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