Point in Time
Act No: CAP. 63
Act Title: PENAL CODE
[ Date of commencement: 1st August, 1930. ]
[ Date of assent: 26th May, 1930. ]
Arrangement of Sections
PART I – GENERAL PROVISIONS
CHAPTER I – PRELIMINARY
1.
Short title

This Act may be cited as the Penal Code and is hereinafter referred to as "this Code".

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

(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

(c)

the power of any court to punish a person for contempt of such court; or

(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

(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

(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:

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.

[L.N. 124/1964, Act No. 24 of 1967, Sch.]

CHAPTER II – INTERPRETATION
3.
[Deleted by Act No. 5 of 2003, s. 2.]
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;

"Government" deleted by Act No. 24 of 1967, Sch;

"Government of Kenya" deleted by Act No. 24 of 1967, Sch;

"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;

"local authority" deleted by Act No. 24 of 1967, Sch;

"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;

(b)

any office the holder of which is appointed, elected or otherwise selected in pursuance of some written law;

(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;
(ii) every member of a Commission of Inquiry or of a tribunal appointed or selected in pursuance of some written law;
(iii) any person in the service of the disciplined forces;
(iv) any person in the employment of the Government, the Community or any local authority;
(v) any person employed to execute any process of a court;
(vi) any person acting as a Cabinet Secretary 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;

"police force" includes the Force defined in section 2 of the Police Act (Repealed), and the Administration Police Force established under the Administration Police Act (Repealed); 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;

(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;

"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

(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;

"statute" deleted by Act No. 24 of 1967, Sch.

"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., Act No. 1 of 2009, 6th Sch.]

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.

[Act No. 24 of 1967, Sch.]

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.

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.

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.

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.

(2)

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.

(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.

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.

(2)

The operation of this section may be excluded by the express or implied provisions of the law relating to the subject.

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.

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.

13.
Intoxication
(1)

Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.

(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

(b)

the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

(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.

(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.

(5)

For the purpose of this section, "intoxication" includes a state produced by narcotics or drugs.

14.
Immature age
(1)

A person under the age of eight years is not criminally responsible for any act or omission.

(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.

(3)

A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

[Act No. 8 of 1963, s. 81.]

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.

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.

[Act No. 54 of 1960, s. 3, Act No. 8 of 1963, s. 81, Act No. 19 of 1964, s. 2.]

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.

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.

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.

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;

(b)

every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)

every person who aids or abets another person in committing the offence;

(d)

any person who counsels or procures any other person to commit the offence,

and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

(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.

(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.

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.

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.

(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.

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.]

CHAPTER VI – PUNISHMENTS
24.
Different kinds of punishments

The following punishments may be inflicted by a court—

(a)

death;

(b)

imprisonment or, where the court so determines under the Community Service Orders Act (Cap. 93), community service under a community service order;

(c)

detention under the Detention Camps Act;

(d)

deleted by Act No. 5 of 2003, s. 3;

(e)

fine;

(f)

forfeiture;

(g)

payment of compensation;

(h)

finding security to keep the peace and be of good behaviour;

(i)

any other punishment provided by this Code or by any other Act.

[Act No. 10 of 1998, s. 14, Act No. 5 of 2003, s. 3.]

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.

(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 Cabinet Secretary and to the Permanent Secretary of the Ministry for the time being responsible for Prisons (L.N. 579/1963).

(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.

[Act No. 53 of 1952, s. 2, Act No. 36 of 1962, Sch., L.N. 124/1964, Act No. 21 of 1966, 2nd Sch.]

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.

(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.

(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 Inspector-General of Police and the Commissioner-General 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 Cabinet Secretary for the time being responsible for immigration that an order for removal from Kenya be made in accordance with section 43 of the Kenya Citizenship and Immigration Act (Cap. 170).

[Act No. 24 of 1967, Sch., Act No. 19 of 1984, Sch.]

27.
[Deleted by Act No. 5 of 2003, s. 5.]
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 (Repealed) 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

Sh. 15,000 but not exceeding Sh. 50,000

6 months

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.

[Act No. 24 of 1967, Sch., Act No. 11 of 1983, Sch., Act No. 5 of 2003, s. 6.]

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.

[Act No. 33 of 1956, s. 13, L.N. 299/1956, L.N. 172/1960, Act No. 24 of 1967, Sch.]

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.

[Act No. 5 of 2003, s. 7.]

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.

[Act No. 5 of 2003, s. 8.]

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 Inspector-General 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)

Any person—

(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.

[Act No. 42 of 1951, s. 4, L.N. 427/1963, Act No. 21 of 1966, 2nd Sch., Act No. 24 of 1967, Sch.]

PART II – CRIMES
Division I – Offences against Public Order
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.

[Act No. 24 of 1967, s. 2.]

41.
[Deleted by Act No. 24 of 1967, s. 3.]
42.
Concealment of treason

Any person who—

(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.

[L.N. 124/1964, Act No. 24 of 1967, Sch.]

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.

[Act No. 24 of 1967, s. 4.]

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.

[Act No. 24 of 1967, s. 4.]

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.

[Act No. 24 of 1967, s. 4.]

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.

[Act No. 24 of 1967, Sch.]

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.

[Act No. 3 of 1965, s. 26, Act No. 24 of 1967, Sch.]

48.
Aiding, etc., to mutiny, or inciting sedition or disobedience

Any person who—

(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.

[Act No. 3 of 1965, s. 26, Act No. 24 of 1967, Sch.]

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.

[Act No. 24 of 1967, Sch.]

50.
Aiding prisoners of war to escape

Any person who—

(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.

[Act No. 24 of 1967, Sch.]

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)

Where the Cabinet Secretary, 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 Cabinet Secretary may, by order published in the Gazette, prohibit the importation of any publication.

(2)

Where the Cabinet Secretary, 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 Cabinet Secretary 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 or her representative, who shall be the chairman;

(aa)

the Director of Public Prosecutions or his or her representative;

(b)

the Inspector-General of Police or his or her representative;

(c)

the Director of Medical Services or his or her representative;

(d)

two persons from the religious community, to be appointed by the Cabinet Secretary; and

(e)

two other persons of integrity, good character and good standing to be appointed by the Cabinet Secretary.

(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 Cabinet Secretary as to whether such prohibition should be lifted; and

(b)

to advise the Cabinet Secretary generally on the exercise of his powers under this section.

(6)

The Cabinet Secretary 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 Cabinet Secretary 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 Cabinet Secretary 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 Cabinet Secretary 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.]

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.

[Act No. 54 of 1960, s. 11, Act No. 21 of 1966, First Sch.]

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)
(a)

Any—

(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 Cabinet Secretary,

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 Inspector-General of Police, as the case may be.

[Act No. 54 of 1960, s. 11, L.N. 427/1963, Act No. 24 of 1967, Sch., Act No. 29 of 1968, s. 7.]

55.
[Deleted by Act No. 46 of 1963, 2nd Sch.]
56.
[Deleted by Act No. 10 of 1997, Sch.]
57.
[Deleted by Act No. 10 of 1997, Sch.]
58.
[Deleted by Act No. 10 of 1997, Sch.]
59.
Unlawful oaths to commit capital offences

Any person who—

(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

Any person who—

(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.

[Act No. 50 of 1950, s. 3, Act No. 52 of 1955, s. 6, Act No. 24 of 1967, Sch.]

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.

[Act No. 50 of 1950, s. 3, Act No. 24 of 1967, Sch.]

65.
Unlawful drilling
(1)

Any person who—

(a)

without the permission of the Cabinet Secretary 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 Cabinet Secretary, 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 Cabinet Secretary, 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.

[Act No. 19 of 2014, s. 12.]

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.

[Act No. 24 of 1967, Sch.]

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 Cabinet Secretary 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 Cabinet Secretary; and

(b)

he gives such security and takes and permits to be taken such other measures, if any, as the Cabinet Secretary 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.

[Act No. 24 of 1967, Sch., Act No. 21 of 1990, Sch.]

69.
[Deleted by Act No. 4 of 2009, s. 454.]
CHAPTER IX – UNLAWFUL ASSEMBLIES, RIOTS AND OTHER OFFENCES AGAINST PUBLIC TRANQUILITY
70.
[Deleted by Act No. 4 of 1968, s. 54.]
71.
[Deleted by Act No. 4 of 1968, s. 54.]
72.
[Deleted by Act No. 4 of 1968, s. 54.]
73.
[Deleted by Act No. 4 of 1968, s. 54.]
74.
[Deleted by Act No. 4 of 1968, s. 54.]
75.
[Deleted by Act No. 4 of 1968, s. 54.]
76.
[Deleted by Act No. 4 of 1968, s. 54.]
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.

(2)

Deleted by Act No. 5 of 2003, s. 9

(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.

[Act No. 54 of 1960, s. 16, Act No. 3 of 1965, s. 26, Act No. 5 of 2003, s. 9, Act No. 7 of 2007, Sch.]

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.

(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.

(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.

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.]

80.
Punishment of riot

Any person who takes part in a riot is guilty of a misdemeanour.

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.

(2)

For the purposes of this section, "military forces" includes naval and air forces.

[Act No. 53 of 1952, s. 3, Act No. 52 of 1955, s. 8, Act No. 24 of 1967, Sch., Act No. 8 of 1968, Sch.]

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.

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.]

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.]

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.

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.

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.

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.

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.

(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.

(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.

(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, Act No. 11 of 1993, Sch.]

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.

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.

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.

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.

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.

(2)

In this section, "public gathering" means—

(a)

any meeting, gathering or concourse of ten or more persons in any public place; or

(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

(c)

any procession in, to or from a public place.

[Act No. 54 of 1960, s. 18.]

95.
Threatening breach of the peace or violence
(1)

Any person who—

(a)

uses obscene, abusive or insulting language, to his employer or to any person placed in authority over him by his employer, in such a manner as is likely to cause a breach of the peace; or

(b)

brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace,

is guilty of a misdemeanour and is liable to imprisonment for six months.

(2)

Any person who—

(a)

with intent to intimidate or annoy any person, threatens to break or injure a dwelling-house; or

(b)

with intent to alarm any person in a dwelling-house, discharges a loaded firearm or commits any other breach of the peace,

is guilty of a misdemeanour and is liable to imprisonment for three years, or, if the offence is committed in the night, to imprisonment for four years.

[Act No. 53 of 1952, Sch.]

96.
Incitement to violence and disobedience of the law

Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints or publishes any words, or does any act or thing, indicating or implying that it is or might be desirable to do, or omit to do, any act the doing or omission of which is calculated—

(a)

to bring death or physical injury to any person or to any class, community or body of persons; or

(b)

to lead to the damage or destruction of any property; or

(c)

to prevent or defeat by violence or by other unlawful means the execution or enforcement of any written law or to lead to defiance or disobedience of any such law, or of any lawful authority, is guilty of an offence and is liable to imprisonment for a term not exceeding five years.

[Act No. 32 of 1958, s. 2, Act No. 54 of 1960, s. 19, Act No. 5 of 2003, s. 10.]

97.
Assemblying for smuggling

Any persons who assemble together, to the number of two or more, for the purpose of unshipping, carrying or concealing any goods subject to customs duty and liable to forfeiture under any law relating to the customs, are guilty of a misdemeanour and each of them is liable to a fine not exceeding six thousand shillings or to imprisonment for six months.

[Act No. 40 of 1952, Sch.]

98.
Wrongfully inducing a boycott
(1)

Whenever the Cabinet Secretary is satisfied that any boycott is being conducted or is threatened or likely to be conducted in Kenya with the intention or effect of—

(a)

bringing into hatred or contempt, exciting disaffection against or undermining the lawful authority of the Government of Kenya, or any local authority, or of persuading any such body to alter any law or by- law, to appoint any commission or committee or to take any action which it is not by law required to take; or

(b)

endangering public order in Kenya; or

(c)

bringing the economic life of Kenya into jeopardy; or

(d)

raising discontent or disaffection amongst the inhabitants of Kenya, or engendering feelings of ill-will or hostility between different classes or different races of the population of Kenya, he may, by notice published in the Gazette, designate that boycott for the purposes of this section and may, by the same or any subsequent notice so published, specify in relation to a designated boycott any action which he is satisfied is likely to further that boycott, including (but without prejudice to the generality of that power) any action falling within any of the following classes of action, that is to say—

(i) abstaining from buying goods from or selling goods to any person or class of persons; or
(ii) abstaining from buying or selling any goods or class of goods; or
(iii) abstaining from entering or approaching or dealing at any premises at which any person or class of persons carries on trade or business; or
(iv) abstaining from dealing with any person or class of persons in the course of his trade or business; or abstaining from using or providing any service or class of service; or
(v) abstaining from working for or employing any person or class of persons; or
(vi) abstaining from letting, hiring or allowing the use of any land or buildings to any person or class of persons; or
(vii) abstaining from doing any other act which may lawfully be done.
(2)

Any person who, with intent to further any designated boycott—

(a)

by word of mouth publicly; or

(b)

by making a publication (as defined in subsection (7)), advises, induces or persuades or attempts to advise, induce or persuade any person or class of persons to take any action which has been specified in relation to that boycott is guilty of an offence and is liable to imprisonment for a term not exceeding six months.

(3)

For the purposes of this section, in determining whether any words were spoken or any publication was made with intent to further a designated boycott, every person shall, unless the contrary be proved, be deemed to intend the consequences which would naturally follow from his conduct at the time and in the circumstances in which he so conducted himself.

(4)

Nothing in this section shall be construed so as to make unlawful any action lawfully taken by a party to a trade dispute (as defined in the Labour Relations Act (Cap. 233)) in contemplation or in furtherance of that dispute.

(5)

Deleted by Act No. 5 of 2003, s. 11.

(6)

Any notice published under this section may at any time be amended, varied, suspended or revoked by a further notice so published.

(7)

For the purposes of this section a person shall be deemed to make a publication if he prints it, makes it, publishes it, sells it, distributes it, offers it for sale or distribution or reproduces it.

[Act No. 54 of 1960, s. 21, L.N. 427/1963, Act No. 24 of 1967, Sch., L.N. 280 /1967, Act No. 5 of 2003, s. 11.]

CHAPTER X – ABUSE OF OFFICE
99.
Officers charged with administration of property of a special character or with special duties

Any person who, being employed in the public service, and being charged by virtue of his employment with any judicial or administrative duties respecting property of a special character, or respecting the carrying on of any manufacture, trade or business of a special character, and having acquired or holding, directly or indirectly, a private interest in any such property, manufacture, trade or business, discharges any such duties with respect to the property, manufacture, trade or business in which he has such interest or with respect to the conduct of any person in relation thereto, is guilty of a felony.

[Act No. 7 of 2007, Sch.]

100.
False claims by persons employed in the public service

Any person who, being employed in the public service in such a capacity as to require him or to enable him to furnish returns or statements touching any sum payable or claimed to be payable to himself or to any other person, or touching any other matter required to be certified for the purpose of any payment of money or delivery of goods to be made to any person, makes a return or statement touching any such matter which is, to his knowledge, false in any material particular is guilty of a felony.

[Act No. 7 of 2007, Sch.]

101.
Abuse of office
(1)

Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a felony.

(2)

Deleted by Act No. 7 of 2007, Sch.

(3)

Deleted by Act No. 5 of 2003, s. 12.

[Act No. 5 of 2003, s. 12, Act No. 7 of 2007, Sch.]

102.
False certificates by public officers

Any person who, being authorized or required by law to give any certificate touching any matter by virtue whereof the rights of any person may be prejudicially affected, gives a certificate which is, to his knowledge, false in any material particular, is guilty of a felony.

[Act No. 7 of 2007, Sch.]

102A.
Penalties

A person convicted of an offence under sections 99, 100, 101 or 102 of this Part shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

[Act No. 7 of 2007, Sch.]

103.
Unauthorized administration of oaths

Any person who administers an oath, or takes solemn declaration or affirmation or affidavit, touching any matter with respect to which he has not by law any authority to do so is guilty of a misdemeanour and is liable to imprisonment for one year:

Provided that this section shall not apply to an oath, declaration, affirmation or affidavit administered by or taken before a magistrate in any matter relating to the preservation of the peace or the punishment of offences or relating to inquiries respecting sudden deaths, nor to an oath, declaration, affirmation or affidavit administered or taken for some purpose which is lawful under the laws of another country, or for the purpose of giving validity to an instrument in writing which is intended to be used in another country.

104.
False assumption of authority

Any person who—

(a)

not being a judicial officer, assumes to act as a judicial officer; or

(b)

without authority assumes to act as a person having authority by law to administer an oath or take a solemn declaration or affirmation or affidavit or to do any other act of a public nature which can only be done by persons authorized by law to do so; or

(c)

represents himself to be a person authorized by law to sign a document testifying to the contents of any register or record kept by lawful authority, or testifying to any fact or event, and signs such document as being so authorized, when he is not, and knows that he is not, in fact, so authorized, is guilty of a misdemeanour.

105.
Personating persons employed in the public service

Any person who—

(a)

personates any person employed in the public service on an occasion when the latter is required to do any act or attend in any place by virtue of his employment; or

(b)

falsely represents himself to be a person employed in the public service, and assumes to do any act or to attend in any place for the purpose of doing any act by virtue of such employment, is guilty of a misdemeanour and is liable to imprisonment for three years.

106.
Threat of injury to persons employed in public service

Whoever holds out any threat of injury to any person employed in the public service, or to any person in whom he believes that person employed in the public service to be interested, for the purpose of inducing that person employed in the public service to do any act or to forbear or delay to do any act connected with the exercise of the public functions of such person employed in the public service is guilty of a misdemeanour.

107.
Tampering with public officers, etc

Any person who—

(a)

induces or attempts to induce any public officer, or any sailor, soldier or airman being an officer or member of any naval, military or air force for the time being lawfully in Kenya, or any servant of a local authority, to fail in his duty, or to terminate his services in the discharge of his duty, or to commit a breach of discipline; or

(b)

with intent to influence any public officer, or any such sailor, soldier or airman as aforesaid, or any servant of a local authority, in or in relation to the discharge of his duty, or to cause him to fail in his duty, or to terminate his services in the discharge of his duty, or to commit a breach of discipline, refuses or threatens to refuse to deal or do trade or business with, or to supply or render, in the ordinary course of his trade or business, any goods or service to, any person, is guilty of an offence and is liable to imprisonment for a term not exceeding three years.

[Act No. 54 of 1960, s. 22.]

CHAPTER XI – OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE
108.
Perjury and subornation of perjury
(1)
(a)

Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed perjury.

(b)

It is immaterial whether the testimony is given on oath or under any other sanction authorized by law.

(c)

The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assent to the forms and ceremonies actually used.

(d)

It is immaterial whether the false testimony is given orally or in writing.

(e)

It is immaterial whether the court or tribunal is properly constituted, or is held in the proper place or not, if it actually acts as a court or tribunal in the proceeding in which the testimony is given.

(f)

It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not.

(2)

Any person who aids, abets, counsels, procures or suborns another person to commit perjury is guilty of the misdemeanour termed subornation of perjury.

[Act No. 13 of 1982, s. 15.]

109.
False statements by interpreters

If any person, lawfully sworn as an interpreter in a judicial proceeding, wilfully makes a statement material in the proceeding which he knows to be false, or does not believe to be true, he shall be guilty of perjury.

110.
Punishment of perjury and subornation of perjury

Any person who commits perjury or suborns perjury is liable to imprisonment for seven years.

111.
Evidence of perjury or subornation of perjury

A person cannot be convicted of committing perjury or of subornation of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

[L.N. 761/1963.]

112.
Contradictory statements
(1)

Where a witness in any judicial proceedings (other than a person accused of an offence in criminal proceedings) has made a statement on oath or affirmation of some fact relevant in the proceedings, contradicting in a material detail a previous statement made on oath or affirmation by the same witness before the same court or any other court or tribunal, such witness, if a court is satisfied that either of such statements was made with intent to deceive, is guilty of an offence and is liable to imprisonment for a term not exceeding two years.

(2)

Upon the trial of any person for an offence under this section, it shall not be necessary to prove the falsity of either of the contradictory statements, but, upon proof that both the statements were made by him, the court, if satisfied that the statements, or either of them, were or was made with intent to deceive, shall convict the accused.

(3)

At the trial of any person for an offence under this section, the record of a court or tribunal containing any statement made on oath or affirmation by the person charged shall be prima facie evidence of such statement.

(4)

For the avoidance of doubt, it is hereby declared that a person shall be liable to be convicted of an offence under this section notwithstanding that any statement made by him before a court or tribunal was made in reply to a question which he was bound by law to answer, and any such statement shall be admissible in any proceedings under this section.

[Act No. 54 of 1960, s. 23.]

112A.
Malicious information
(1)

Any person who, with intent to cause harm or inconvenience to another person, gives or makes to—

(a)

any magistrate or member of the police force; or

(b)

any officer having power to apprehend or order the apprehension of offenders, any information or complaint in relation to that other person that he knows to be false is guilty of a misdemeanour or, where subsection (3) or (4) applies, of a felony.

(2)

Where, as a result of an offence under this section, any person sustains actual bodily harm, the offender shall on conviction be liable to be punished as for assault occasioning actual bodily harm.

(3)

Where, as a result of an offence under this section, any person sustains grievous harm, the offender shall on conviction be liable to be punished as for doing grievous harm.

(4)

Where, as a result of an offence under this section, any person dies, the offender shall on conviction be liable to be punished as for manslaughter.

(5)

For the purposes of this section, any harm to or death of a person shall be deemed to have resulted from an offence under this section if the court is satisfied that, as a matter of fact, and without regard to the actions or motivations of any person other than the offender, the harm would not have been done or the death would not have occurred, as the case may be, if the offence had not been committed.

[Act No. 13 of 1982, s. 15, Act No. 5 of 2003, s. 13.]

113.
Fabricating evidence

Any person who, with intent to mislead any tribunal in any judicial proceeding—

(a)

fabricates evidence by any means other than perjury or subornation of perjury; or

(b)

knowingly makes use of such fabricated evidence, is guilty of a misdemeanour and is liable to imprisonment for seven years.

114.
False swearing

Any person who swears falsely or makes a false affirmation or declaration before any person authorized to administer an oath or take a declaration upon a matter of public concern under such circumstances that the false swearing or declaration if committed in a judicial proceeding would have amounted to perjury, is guilty of a misdemeanour.

115.
Deceiving witnesses

Any person who practises any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token or writing to any person called or to be called as a witness in any judicial proceeding, with intent to affect the testimony of such person as a witness, is guilty of a misdemeanour.

116.
Destroying evidence

Any person who, knowing that any book, document or thing of any kind whatsoever is or may be required in evidence in a judicial proceeding, wilfully removes or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of a misdemeanour.

117.
Conspiracy to defeat justice and interference with witnesses

Any person who—

(a)

conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert or defeat the course of justice; or

(b)

in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so; or

(c)

obstructs or in any way interferes with or knowingly prevents the execution of any legal process, civil or criminal, is guilty of an offence and is liable to imprisonment for five years.

[Act No. 53 of 1952, s. 4.]

118.
Compounding felonies

Any person who asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal a felony, or will abstain from, discontinue or delay a prosecution for a felony, or will withhold any evidence thereof, is guilty of a misdemeanour.

119.
Compounding penal actions

Any person who, having brought, or under pretence of bringing, an action against another person upon a penal law in order to obtain from him a penalty for any offence committed or alleged to have been committed by him, compounds the action without the order or consent of the court in which the action is brought or is to be brought, is guilty of a misdemeanour.

[Act No. 24 of 1967, Sch.]

120.
Advertisements for stolen property

Any person who—

(a)

publicly offers a reward for the return of any property which has been stolen or lost, and in the offer makes use of any words purporting that no questions will be asked, or that the person producing such property will not be seized or molested; or

(b)

publicly offers to return to any person who may have bought or advanced money by way of loan upon any stolen or lost property the money so paid or advanced, or any other sum of money or reward for the return of such property; or

(c)

prints or publishes any such offer, is guilty of a misdemeanour.

121.
Offences relating to judicial proceedings
(1)

Any person who—

(a)

within the premises in which any judicial proceeding is being had or taken, or within the precincts of the same, shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being had or taken; or

(b)

having been called upon to give evidence in a judicial proceeding, fails to attend, or having attended refuses to be sworn or to make an affirmation, or, having been sworn or affirmed, refuses without lawful excuse to answer a question or to produce a document, or remains in the room in which such proceeding is being had or taken, after the witnesses have been ordered to leave such room; or

(c)

causes an obstruction or disturbance in the course of a judicial proceeding; or

(d)

while a judicial proceeding is pending, makes use of any speech or writing misrepresenting such proceeding or capable of prejudicing any person in favour of or against any parties to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being had or taken; or

(e)

publishes a report of the evidence taken in any judicial proceeding which has been directed to be held in private; or

(f)

attempts wrongfully to interfere with or influence a witness in a judicial proceeding, either before or after he has given evidence, in connexion with such evidence; or

(g)

dismisses a servant because he has given evidence on behalf of a certain party to a judicial proceeding; or

(h)

wrongfully retakes possession of land from any person who has recently obtained possession by a writ of court; or

(i)

commits any other act of intentional disrespect to any judicial proceedings, or to any person before whom such proceeding is being had or taken, is guilty of an offence and is liable to imprisonment for three years.

(2)

When any offence under any of paragraphs (a), (b), (c), (d) and (i) of subsection (1) is committed in view of the court, the court may cause the offender to be detained in custody, and at any time before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine not exceeding one thousand four hundred shillings or in default of payment to imprisonment for a term not exceeding one month.

(3)

The provisions of this section shall be deemed to be in addition to and not in derogation from the power of the High Court to punish for contempt of court.

[Act No. 40 of 1952, Sch., Act No. 53 of 1952, Sch., Act No. 21 of 1966, 2nd Sch.]

CHAPTER XII – RESCUES AND ESCAPES AND OBSTRUCTING OFFICERS OF COURT
122.
Rescue
(1)

Any person who by force rescues or attempts to rescue from lawful custody any other person—

(a)

is, if the last-named person is under sentence of death or imprisonment for life, or charged with an offence punishable with death or imprisonment for life, guilty of a felony and is liable to imprisonment for life; and

(b)

is, if the other person is imprisoned on a charge or under sentence for any offence other than those specified above, guilty of a felony and is liable to imprisonment for seven years; and

(c)

is, in any other case, guilty of a misdemeanour.

(2)

If the person rescued is in the custody of a private person, the offender must have notice of the fact that the person rescued is in such custody.

122A.
Senior police officer may order DNA sampling procedure on suspect
(1)

A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.

(2)

In this section—

"DNA sampling procedure" means a procedure, carried out by a medical practitioner, consisting of—

(a)

the taking of a sample of saliva or a sample by buccal swab;

(b)

the taking of a sample of blood;

(c)

the taking of a sample of hair from the head or underarm; or

(d)

the taking of a sample from a fingernail or toenail or from under the nail,

for the purpose of performing a test or analysis upon the sample in order to confirm or disprove a supposition concerning the identity of the person who committed a particular crime;

"serious offence" means an offence punishable by imprisonment for a term of twelve months or more.

[Act No. 5 of 2003, s. 14.]

122B.
Suspect to comply with order

Where a suspect in respect of whom an order has been made under section 122A resists compliance with the order, members of the police force, under supervision of an officer of or above the rank of inspector, shall be entitled to use reasonable force in restraining the suspect for the purpose of effecting the procedure.

[Act No. 5 of 2003, s. 14.]

122C.
Suspect may volunteer
(1)

Nothing in section 122A shall be construed as preventing a suspect from undergoing a procedure by consent, without any order having been made:

Provided that every such consent shall be recorded in writing signed by the person giving the consent.

(2)

Such consent may, where the suspect is a child or an incapable person, be given by the suspect’s parent or guardian.

[Act No. 5 of 2003, s. 14.]

122D.
Order or consent to be proven

The results of any test or analysis carried out on a sample obtained from a DNA sampling procedure within the meaning of section 122A shall not be admissible in evidence at the request of the prosecution in any proceedings against the suspect unless an order under section 122A or a consent under 122C is first proven to have been made or given.

[Act No. 5 of 2003, s. 14.]

123.
Escape

Any person who, being in lawful custody, escapes from that custody is guilty of a misdemeanour.

124.
Aiding escape

Any person who—

(a)

aids a prisoner in escaping or attempting to escape from lawful custody; or

(b)

conveys anything or causes anything to be conveyed into a prison with intent to facilitate the escape of a prisoner,

is guilty of a felony and is liable to imprisonment for seven years.

125.
Removal, etc., of property under lawful seizure

Any person who, when any property has been attached or taken under the process of authority of any court, knowingly, and with intent to hinder or defeat the attachment or process, receives, removes, retains, conceals or disposes of that property is guilty of a felony and is liable to imprisonment for three years.

126.
Obstructing court officers

Any person who wilfully obstructs or resists any person lawfully charged with the execution of an order or warrant of any court is guilty of a misdemeanour and is liable to imprisonment for one year.

CHAPTER XIII – MISCELLANEOUS OFFENCES AGAINST PUBLIC AUTHORITY
127.
Frauds and breaches of trust by persons employed in the public service
(1)

Any person employed in the public service who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether the fraud or breach of trust would have been criminal or not if committed against a private person, is guilty of a felony.

(2)

A person convicted of an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

[Act No. 7 of 2007, Sch.]

128.
Neglect of official duty

Every person employed in the public service who wilfully neglects to perform any duty which he is bound either by common law or by any written law to perform, provided that the discharge of the duty is not attended with greater danger than a man of ordinary courage might be expected to face, is guilty of a misdemeanour.

[Act No. 24 of 1967, Sch.]

128A.
Offences by public officers

A public officer commits an offence and is liable, upon conviction, to imprisonment for a term of not less than fifteen years where in the course of his or her employment he or she—

(a)

aids or facilitates the commission of a felony;

(b)

facilitates the irregular entry of an alien or a criminal into Kenya;

(c)

conceals the whereabouts of a criminal; or

(d)

irregularly issues identification documents.

[Act No. 19 of 2014, s. 13.]

129.
False information to person employed in the public service

Whoever gives to any person employed in the public service any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, the person employed in the public service—

(a)

to do or omit anything which the person employed in the public service ought not to do or omit if the true state of facts respecting which such information is given were known to him; or

(b)

to use the lawful power of the person employed in the public service to the injury or annoyance of any person, is guilty of a misdemeanour and is liable to imprisonment for three years.

[Act No. 40 of 1952, Sch., Act No. 53 of 1952, s. 5.]

130.
Disobedience of statutory duty

Everyone who wilfully disobeys any written law by doing any act which it forbids, or by omitting to do any act which it requires to be done, and which concerns the public or any part of the public, is guilty of a misdemeanour and is liable, unless it appears from the written law that it was the intention of Parliament to provide some other penalty for the disobedience, to imprisonment for two years.

[Act No. 24 of 1967, Sch.]

131.
Disobedience of lawful orders

Everyone who disobeys any order, warrant or command duly made, issued or given by any court, officer or any person acting in any public capacity and duly authorized in that behalf, is guilty of a misdemeanour and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of the disobedience, to imprisonment for two years.

132.
Undermining authority of public officer

Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints, publishes any words, or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer or any class of public officers is guilty of an offence and is liable to imprisonment for a term not exceeding three years.

[Act No. 32 of 1958, s. 3, Act No. 54 of 1960, s. 24, Act No. 44 of 1962, Sch.]

133.
Destruction, etc., of statutory documents
(1)

Any person who, knowingly and without lawful authority or excuse, destroys, mutilates, defaces, alters, abandons or fails to preserve any statutory document 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.

(2)

Any person who, in any manner or by whatever means, instigates, expressly or by implication, any person or class of persons to destroy, mutilate, deface, alter, abandon or fail to preserve any statutory document or any class of statutory documents, or who does any act with intent or knowing it to be likely that any person or class of persons will be instigated thereby to destroy, mutilate, deface, alter, abandon or fail to preserve any statutory document, is guilty of an offence and is liable to imprisonment for a term not exceeding three years.

(3)

In this section, "statutory document" means any licence, permit, identity card, record or return or certificate of or relating to employment, and any other record of or document establishing status, identity, qualifications, service, authorization, eligibility or entitlement, made, granted, given or issued under and for the purposes of, and in a form prescribed by, any written law, and being of current validity, and includes any part thereof, and any copy thereof made, granted, given or issued as aforesaid.

CHAPTER XIV – OFFENCES RELATING TO RELIGION
134.
Insult to religion

Any person who destroys, damages or defiles any place of worship or any object which is held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, is guilty of a misdemeanour.

135.
Disturbing religious assemblies

Any person who voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship or religious ceremony is guilty of a misdemeanour.

136.
Trespassing on burial places

Every person who, with the intention of wounding the feelings of any person or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or in any place of sepulture, or in any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the purpose of funeral ceremonies, is guilty of a misdemeanour.

137.
Hindering burial of dead body, etc.

Whoever unlawfully hinders the burial of the dead body of any person, or without lawful authority in that behalf disinters, dissects or harms the dead body of any person, or, being under a duty to cause the dead body of any person to be buried, fails to perform that duty, is guilty of a misdemeanour.

138.
Writing or uttering words with intent to wound religious feelings

Any person who, with the deliberate intention of wounding the religious feelings of any other person, writes any word, or any person who, with the like intention, utters any word or makes any sound in the hearing of any other person or makes any gesture or places any object in the sight of any other person, is guilty of a misdemeanour and is liable to imprisonment for one year.

CHAPTER XV – OFFENCES AGAINST MORALITY
139.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
140.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
141.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
142.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
143.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
144.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
145.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
146.
Defilement of person suffering from mental illness

Any person who, knowing a person to be a person suffering from mental illness, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was a person suffering from mental illness, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.

[Act No. 3 of 1969, First Sch., Act No. 5 of 2003, s. 20, Act No. 19 of 2023, Sch.]

147.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
148.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
149.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
150.
[Deleted by Act No. 5 of 2003, s. 24.]
151.
Detention of females for immoral purposes
(1)

Any person who detains any other person against his or her will—

(a)

in or upon any premises with intent that he or she may have unlawful sexual connection with any person, whether any particular person or generally; or

(b)

in any brothel,

is guilty of a felony.

(2)

A person in or upon any premises for the purpose of having any unlawful sexual connection, or in any brothel, shall be deemed to be detained therein by any other person who, with intent to compel or induce that person to remain in or upon the premises or in the brothel—

(a)

withholds from that person any wearing apparel or other property belonging to that person; or

(b)

where wearing apparel has been lent or otherwise supplied to that person by or at his direction, threatens that person with legal proceedings in the event that that person should take away the wearing apparel so lent or supplied.

(3)

No legal proceedings, whether civil or criminal, shall be taken against only such person for taking away or being found in possession of only such wearing apparel as was necessary to enable her leave such premises or brothel.

[Act No. 5 of 2003, ss. 25 (9) and 27, Act No. 5 of 2003, s. 25 (b).]

152.
Power of search for persons detained
(1)

If it appears to any magistrate, on information laid before him on oath by—

(a)

any parent, relative or guardian of a person named in the information; or

(b)

any other informant who, in the opinion of the magistrate, is acting bona fide in the interests of the person so named,

that there is reasonable cause to suspect that the person named in the information is unlawfully detained for immoral purposes by any person in any place within the jurisdiction of the magistrate, the magistrate may issue a warrant authorising the person charged with its execution to search for and, when found, to take to and detain in a place of safety the person named in the information until he or she can be brought before a magistrate.

(2)

The magistrate before whom the person concerned is brought may cause the person to be delivered up to his or her parents or guardians or to be otherwise dealt with as circumstances may require.

(3)

A magistrate issuing a warrant under subsection (1) may by the same or another warrant cause any person accused of unlawfully detaining the person concerned to be apprehended and brought before a magistrate, where he shall be dealt with according to law.

(4)

A person shall be deemed to be unlawfully detained for immoral purposes if—

(a)

the person is detained for the purpose of having unlawful sexual connection with any person, whether any particular person or generally; and

(b)

the person—

(i) is under the age of sixteen years; or
(ii) being of or over the age of sixteen years and under the age of eighteen years, is so detained against his or her will or against the will of his or her father or mother or any person having the lawful care or charge of him or her; or
(iii) being of or over the age of eighteen years, is so detained against his or her own will.
(5)

Any person authorised by warrant under this section to search for any person detained as abovementioned may enter (if need be, by force) any house, building or other place mentioned in the warrant, and may remove the person therefrom.

[5 of 2003, s. 26.]

153.
Male person living on earnings of prostitution or soliciting
(1)

Every male person who—

(a)

knowingly lives wholly or in part on the earnings of prostitution; or

(b)

in any public place persistently solicits or importunes for immoral purposes,

is guilty of a felony.

(2)

Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person, or generally, he shall unless he satisfies the court to the contrary be deemed to be knowingly living on the earnings of prostitution.

[Act No. 5 of 2003, s. 28.]

154.
Woman living on earnings of prostitution or aiding, etc., prostitution

Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, is guilty of a felony.

[Act No. 5 of 2003, s. 29.]

155.
Premises used for prostitution

If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house or any part of a house is used by a woman or girl for the purposes of prostitution, and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, or is exercising control, direction or influence over the movements of the prostitute, the magistrate may issue a warrant authorizing any police officer to enter and search the house and to arrest such person.

156.
Brothels

Any person who—

(a)

keeps or manages or assists in the management of a brothel; or

(b)

being the tenant, lessee or occupier, or person in charge, of any premises, knowingly permits the premises or any part thereof to be used as a brothel; or

(c)

being the lessor or landlord of any premises, or the agent of the lessor or landlord, lets the same or any part thereof with the knowledge that the premises or some part thereof are or is to be used as a brothel, or is wilfully a party to the continued use of the premises as a brothel,

is guilty of a felony.

[Act No. 42 of 1951, s. 6, Act No. 5 of 2003, s. 30.]

157.
Conspiracy to defile
(1)

Any person who conspires with another to induce any woman or girl, by means of any false pretence or other fraudulent means, to permit any man to have unlawful carnal knowledge of her is guilty of a felony and is liable to imprisonment for three years.

(2)

Any person who conspires with another to induce any man or boy, by means of any false pretence or other fraudulent means, to permit any person to have unlawful sexual connexion with him is guilty of a felony and is liable to imprisonment for three years.

[Act No. 5 of 2003, s. 31.]

158.
Attempts to procure abortion

Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.

159.
The like by woman with child

Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years.

160.
Supplying drugs or instruments to procure abortion

Any person who unlawfully supplies to or procures for any person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.

161.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
162.
Unnatural offences

Any person who—

(a)

has carnal knowledge of any person against the order of nature; or

(b)

has carnal knowledge of an animal; or

(c)

permits a male person to have carnal knowledge of him or her against the order of nature,

is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if—

(i) the offence was committed without the consent of the person who was carnally known; or
(ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

[Act No. 5 of 2003, s. 32.]

163.
Attempt to commit unnatural offences

Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

[5 of 2003, s. 33.]

164.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
165.
Indecent practices between males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

[Act No. 5 of 2003, s. 35.]

166.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
167.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
168.
[Deleted by Act No. 3 of 2006, 2nd Sch.]
169.
[Deleted by Act No. 5 of 2003, s. 36.]
CHAPTER XVI – OFFENCES RELATING TO MARRIAGE AND DOMESTIC OBLIGATIONS
170.
[Deleted by Act No. 7 of 2007, Sch.]
171.
Bigamy

Any person who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of its taking place during the life of the husband or wife, is guilty of a felony and is liable to imprisonment for five years:

Provided that this section shall not extend to any person whose marriage with the husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if the husband or wife, at the time of the subsequent marriage, has been continually absent from such person for the space of seven years, and has not been heard of by such person as being alive within that time.

172.
Marriage with dishonest or fraudulent intent

Any person who dishonestly or with a fraudulent intention goes through the ceremony of marriage, knowing that he is not thereby lawfully married, is guilty of a felony and is liable to imprisonment for five years.

173.
Master not providing for servants or apprentices

Any person who being legally liable, either as master or mistress, to provide for any apprentice or servant necessary food, clothing or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or unlawfully and maliciously does or causes to be done any bodily harm to such apprentice or servant so that the life of such apprentice or servant is endangered or that his health has been or is likely to be permanently injured, is guilty of a misdemeanour.

174.
Child stealing
(1)

Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years of the possession of the child—

(a)

forcibly or fraudulently takes or entices away or detains the child; or

(b)

receives or harbours the child, knowing it to have been so taken or enticed away or detained,

is guilty of a felony and is liable to imprisonment for seven years.

(2)

It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of an illegitimate child, is its mother or claimed to be its father.

CHAPTER XVII – NUISANCES AND OFFENCES AGAINST HEALTH AND CONVENIENCE
175.
Common nuisance
(1)

Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanour termed a common nuisance and is liable to imprisonment for one year.

(2)

It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public.

176.
[Deleted by Act No. 9 of 1966, s. 71.]
177.
[Deleted by Act No. 9 of 1966, s. 71.]
178.
[Deleted by Act No. 9 of 1966, s. 71.]
179.
[Deleted by Act No. 9 of 1966, s. 71.]
180.
[Deleted by Act No. 9 of 1966, s. 71.]
181.
Traffic in obscene publications
(1)

Any person who—

(a)

for the purpose of or by way of trade or for the purpose of distribution or public exhibition, makes, produces or has in his possession any one or more obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any other obscene objects, or any other object tending to corrupt morals; or

(b)

for any of the purposes above mentioned imports, conveys or exports, or causes to be imported, conveyed or exported, any such matters or things, or in any manner whatsoever puts any of them in circulation; or

(c)

carries on or takes part in any business, whether public or private concerned with any such matters or things, or deals in any such matters or things in any manner whatsoever, or distributes any of them, or exhibits any of them publicly, or makes a business of lending any of them; or

(d)

advertises or makes known by any means whatsoever, with a view to assisting the circulation of or traffic in any such matters or things, that a person is engaged in any of the acts referred to in this section, or advertises or makes known how, or from whom, any such matters or things can be procured either directly or indirectly; or

(e)

publicly exhibits any indecent show or performance or any show or performance tending to corrupt morals,

is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of seven thousand shillings.

(2)

If, in respect of any of the offences specified in paragraphs (a), (b), (c) and (d) of subsection (1), any constituent element thereof is committed in Kenya, such commission shall be sufficient to render the person accused of such offence triable therefore in Kenya.

(3)

A court, on convicting any person of an offence against this section, may order to be destroyed any matter or thing made, possessed or used for the purpose of that offence.

(4)

A court may, on the application of the Director of Public Prosecutions, the Solicitor-General, a State Counsel or a Superintendent of Police, order the destruction of any obscene matter or thing to which this section relates, whether any person may or may not have been convicted under this section in respect of the obscene matter or thing.

[Act No. 40 of 1952, Sch., Act No. 12 of 2012, Sch.]

182.
Idle and disorderly persons

The following persons—

(a)

every common prostitute behaving in a disorderly or indecent manner in any public place;

(b)

every person causing, procuring or encouraging any person to beg or gather alms;

(c)

deleted by Act No. 61 of 1968, s. 22;

(d)

every person who publicly conducts himself in a manner likely to cause a breach of the peace;

(e)

every person who without lawful excuse publicly does any indecent act;

(f)

every person who in any public place solicits for immoral purposes;

(g)

deleted by Act No. 61 of 1968, s. 22,

shall be deemed idle and disorderly persons, and are guilty of a misdemeanour and are liable for the first offence to imprisonment for one month or to a fine not exceeding one hundred shillings, or to both and for every subsequent offence to imprisonment for one year.

[Act No. 40 of 1952, Sch., Act No. 9 of 1966, s. 71, Act No. 24 of 1967, Sch., Act No. 61 of 1968, s. 22.]

183.
[Deleted by Act No. 5 of 2003, s. 37.]
184.
Unauthorized uniforms
(1)

Any person who, not being a person serving in the disciplined forces or the police force, or any other armed forces for the time being lawfully present in Kenya, wears without the permission of the Cabinet Secretary or without other lawful authority the uniform of any of those forces, or any dress having the appearance or bearing any of the regimental or other distinctive marks of such uniform, is guilty of a misdemeanour and is liable to imprisonment for one month or to a fine of six hundred shillings:

Provided that nothing in this section shall prevent any person from wearing any uniform or dress in the course of a stage play performed in any place in which stage plays may lawfully be publicly performed, or in the course of a music-hall or circus performance or in the course of any bona fide military representation.

(2)

Any person who unlawfully wears the uniform of any of the forces aforesaid, or any dress having the appearance or bearing any of the regimental or other distinctive marks of any such uniform, in such a manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any other person so to wear such uniform or dress, is guilty of a misdemeanour and is liable to imprisonment for three months or to a fine of one thousand two hundred shillings.

(3)

Any person who, not being in the service of Kenya or not having previously received the written permission of the Cabinet Secretary so to do, imports or sells or has in his possession for sale the uniform or dress mentioned in this section, or the buttons or badges appropriate thereto, is guilty of a misdemeanour and is liable to imprisonment for six months or to a fine of six thousand shillings:

Provided that nothing in this subsection shall be deemed to prohibit the importation of any such uniform or dress by any person who is lawfully in possession thereof.

(4)

When any person has been convicted of any offence under this section, the uniform, dress, button, badge or other thing in respect of which the offence has been committed shall be forfeited unless the Cabinet Secretary otherwise orders.

[Act No. 42 of 1951, s. 10, Act No. 40 of 1952, Sch., L.N. 407 1961, Act No. 19 of 1964, s. 2, Act No. 24 of 1967, Sch.]

185.
Wearing uniforms declared to be for exclusive use
(1)

The Cabinet Secretary may, by notice in the Gazette, upon the application of any persons who perform, or who are members of any organization which performs, any service which in his opinion is in the public interest, declare that any uniform, badge, button or other distinctive mark used by those persons and described in the notice shall be for the exclusive use of those persons.

(2)

Any person who, without the authority of the persons upon whose application a notice under this section has been published in the Gazette, uses or wears any uniform, badge, button or other distinctive mark described in the notice, or any uniform, badge, button or other distinctive mark so closely resembling the same as to lead to the belief that it is a uniform, badge, button or other distinctive mark so described, is guilty of a misdemeanour and is liable to imprisonment for one month or to a fine of two hundred shillings:

Provided that nothing in this section shall prevent any person from using or wearing the uniform, badge, button or other distinctive mark in the course of a stage play performed in any public place in which stage plays may lawfully be publicly performed, or in the course of a music-hall or circus performance, or in the course of the making or production of a cinematograph film, if the uniform, badge, button or other distinctive mark is not used or worn in such a manner or in such circumstances as to bring it into contempt.

(3)

Any person who, without the authority of the persons upon whose application a notice under this section has been published in the Gazette, imports or sells or has in his possession for sale any uniform, badge, button or other distinctive mark described in the notice is guilty of a misdemeanour and is liable to imprisonment for six months or to a fine of two thousand shillings.

(4)

Where any person has been convicted of any offence under this section, the uniform, badge, button or other distinctive mark in respect of which the offence has been committed shall be forfeited unless the Cabinet Secretary otherwise orders.

[L.N. 299/1956, L.N. 172/1960.]

186.
Spreading infection

Any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, is guilty of a misdemeanour.

187.
[Deleted by Act No. 8 of 1965, s. 40.]
188.
[Deleted by Act No. 8 of 1965, s. 40.]
189.
[Deleted by Act No. 8 of 1965, s. 40.]
190.
[Deleted by Act No. 8 of 1965, s. 40.]
191.
Fouling water

Any person who voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, is guilty of a misdemeanour.

192.
Fouling air

Any person who voluntarily vitiates the atmosphere in any place, so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, is guilty of a misdemeanour.

193.
Offensive trades

Any person who, for the purposes of trade or otherwise, makes loud noises or offensive or unwholesome smells in such places and circumstances as to annoy any considerable number of persons in the exercise of their common rights commits an offence and is liable to be punished as for a common nuisance.

CHAPTER XVIII – DEFAMATION
194.
Definition of libel

Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.

195.
Definition of defamatory matter

Defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation; and it is immaterial whether at the time of the publication of the defamatory matter the person concerning whom the matter is published is living or dead.

[Act No. 5 of 2003, s. 38.]

196.
Definition of publication
(1)

A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed to be so dealt with, either by exhibition, reading, recitation, description, delivery or otherwise, that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

(2)

It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.

197.
Definition of unlawful publication

Any publication of defamatory matter concerning a person is unlawful within the meaning of this Chapter, unless—

(a)

the matter is true and it was for the public benefit that it should be published; or

(b)

it is privileged on one of the grounds hereafter mentioned in this Chapter.

198.
Cases in which publication of defamatory matter is absolutely privileged
(1)

The publication of defamatory matter is absolutely privileged, and no person shall under any circumstances be liable to punishment under this Code in respect thereof, in any of the following cases, namely—

(a)

if the matter is published by the President, or by the Cabinet (of Ministers), or in Parliament, in any case in an official document or proceeding; or

(b)

if the matter is published in the Cabinet (of Ministers), or in Parliament, in any case by the President, or by a Cabinet Secretary, or by a Member of Parliament, as the case may be; or

(c)

if the matter is published by order of the President or by order of the Cabinet (of Ministers); or

(d)

if the matter is published concerning a person subject to military or naval discipline for the time being, and relates to his conduct as a person subject to such discipline, and is published by some person having authority over him in respect of such conduct, and to some person having authority over him in respect of such conduct; or

(e)

if the matter is published in the course of any judicial proceedings by a person taking part therein as a judge, magistrate, commissioner, advocate, assessor, witness or party thereto; or

(f)

if the matter published is in fact a fair report of anything said, done or published in the Cabinet (of Ministers) or in Parliament; or

(g)

if the person publishing the matter is legally bound to publish it.

(2)

Where a publication is absolutely privileged, it is immaterial for the purposes of this Chapter whether the matter be true or false, and whether it be or be not known or believed to be false, and whether it be or be not published in good faith:

Provided that nothing in this section shall exempt any person from any liability to punishment under any other Chapter of this Code or under any other written law in force within Kenya.

[Act No. 15 of 1954, s. 3(l), L.N. 427/1963, L.N. 124/1964, Act No. 21 of 1966, 2nd Sch., Act No. 24 of 1967, Sch.]

199.
Cases in which publication of defamatory matter is conditionally privileged

A publication of defamatory matter is privileged, on condition that it was published in good faith, if the relation between the parties by and to whom the publication is made is such that the person publishing the matter is under some legal, moral or social duty to publish it to the person to whom the publication is made or has a legitimate personal interest in so publishing it, provided that the publication does not exceed either in extent or matter what is reasonably sufficient for the occasion, and in any of the following cases, namely—

(a)

if the matter published is in fact a fair report of anything said, done or shown in a civil or criminal inquiry or proceeding before any court:

Provided that if the court prohibits the publication of anything said or shown before it, on the ground that it is seditious, immoral or blasphemous, the publication thereof shall not be privileged; or

(b)

if the matter published is a copy or reproduction, or in fact a fair abstract, of any matter which has been previously published, and the previous publication of it was or would have been privileged under section 198; or

(c)

if the matter is an expression of opinion in good faith as to the conduct of a person in a judicial, official or other public capacity, or as to his personal character so far as it appears in such conduct; or

(d)

if the matter is an expression of opinion in good faith as to the conduct of a person in relation to any public question or matter, or as to his personal character so far as it appears in such conduct; or

(e)

if the matter is an expression of opinion in good faith as to the conduct of any person as disclosed by evidence given in a public legal proceeding, whether civil or criminal, or as to the conduct of any person as a party, witness or otherwise in any such proceeding, or as to the character of any person so far as it appears in any such conduct as in this paragraph mentioned; or

(f)

if the matter is an expression of opinion in good faith as to the merits of any book, writing, painting, speech or other work, performance or act published or publicly done or made or submitted by a person to the judgment of the public, or as to the character of the person so far as it appears therein; or

(g)

if the matter is a censure passed by a person in good faith on the conduct of another person in any matter in respect of which he has authority, by contract or otherwise, over the other person, or on the character of the other person so far as it appears in such conduct; or

(h)

if the matter is a complaint or accusation made by a person in good faith against another person in respect of his conduct in any matter, or in respect of his character so far as it appears in such conduct, to any person having authority, by contract or otherwise, over that other person in respect of such conduct or matter, or having authority by law to inquire into or receive complaints respecting such conduct or matter; or

(i)

if the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested.

200.
Explanation as to good faith

A publication of defamatory matter shall be deemed not to have been made in good faith by a person, within the meaning of section 199, if it is made to appear either—

(a)

that the matter was untrue, and that he did not believe it to be true; or

(b)

that the matter was untrue, and that he published it without having taken reasonable care to ascertain whether it was true or false; or

(c)

that, in publishing the matter, he acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or interest in respect of which he claims to be privileged.