Point in Time
Act No: CAP. 75
Act Title: CRIMINAL PROCEDURE CODE
[ Date of commencement: 1st August 1930. ]
Arrangement of Sections
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Criminal Procedure Code.

3.
Trial of offences under Penal Code and under other laws
(1)

All offences under the Penal Code (Cap. 63) shall be inquired into, tried and otherwise dealt with according to this Code.

(2)

All offences under any other law shall be inquired into, tried and otherwise dealt with according to this Code, subject to any enactment for the time being in force regulating the manner or place of inquiring into, trying, or otherwise dealing with those offences.

(3)

Notwithstanding anything in this Code, the High Court may, subject to the provisions of any law for the time being in force, in exercising its criminal jurisdiction in respect of any matter or thing to which the procedure prescribed by this Code is inapplicable, exercise that jurisdiction according to the course of procedure and practice observed by and before the High Court of Justice in England at the date of the coming into operation of this Code.

(4)

Notwithstanding anything in this Code or any other written law, in relation to a person who is a member of the armed forces or police forces of another country lawfully present in Kenya as a consequence of an agreement between the government of that other country and the Government of Kenya, in which agreement provision is made in respect of offences under the Penal Code or any other written law for the detention or punishment of that person or the inquiry into, trial or other disposal of those offences, nothing done or omitted in accordance with such a provision shall be or shall be deemed to be unlawful or contrary to the provisions of this Code, or any other written law.

PART II – POWERS OF COURTS
4.
Offences under Penal Code

Subject to this Code, an offence under the Penal Code (Cap. 63) may be tried by the High Court, or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this Code to be triable.

5.
Offences under other laws
(1)

An offence under any law other than the Penal Code (Cap. 63) shall, when a court is mentioned in that behalf in that law, be tried by that court.

(2)

When no court is so mentioned, it may, subject to this Code, be tried by the High Court, or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this Code to be triable.

6.
Sentences which High Court may pass

The High Court may pass any sentence authorized by law.

8.
Powers of Judicial Service Commission to extend jurisdiction of subordinate courts

The Judicial Service Commission may, by notice in the Gazette, extend the jurisdiction of any particular magistrate under section 7 either generally or in relation to particular offences triable by a court of a class which may be held by that magistrate, and a magistrate whose jurisdiction has been so extended may pass sentences thus authorized in cases where they are authorized by law.

9.

Repealed by Act No. 17 of 1967, s. 25.

10.

Repealed by Act No. 17 of 1967, s. 25.

11.

Repealed by Act No. 17 of 1967, s. 25.

12.
Combination of sentences

Any court may pass a lawful sentence combining any of the sentences which it is authorized by law to pass.

13.

Repealed by Act No. 17 of 1967, s. 25.

14.
Sentences in cases of conviction of several offences at one trial
(1)

Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.

(2)

In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.

(3)

Except in cases to which section 7(1) applies, nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences—

(a)

of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or

(b)

of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.

(4)

For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

16.

Repealed by Act No. 17 of 1967, s. 25.

17.

Repealed by Act No. 17 of 1967, s. 25.

18.

Repealed by Act No. 17 of 1967, s. 25.

19.

Repealed by Act No. 17 of 1967, s. 25.

20.

Repealed by Act No. 17 of 1967, s. 25.

PART III – GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING

Arrest Generally

21.
Arrest
(1)

In making an arrest the police officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there be a submission to custody by word or action.

(2)

If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest.

(3)

Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.

22.
Search of place entered by person sought to be arrested
(1)

If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place shall, on demand of the person so acting or the police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein.

(2)

If ingress to a place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter the place and search therein, and, in order to effect an entrance into the place, to break open any outer or inner door or window of a house or place, whether that of the person to be arrested or of another person, or otherwise effect entry into the house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance:

Provided that if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public, the person or police officer shall, before entering the apartment, give notice to the woman that she is at liberty to withdraw, and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

23.
Power to break out of house, etc., for purposes of liberation

A police officer or other person authorized to make an arrest may break out of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

24.
No unnecessary restraint

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

25.
Search of arrested persons

Whenever a person is arrested—

(a)

by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or

(b)

without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail,

the police officer making the arrest, or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search that person and place in safe custody all articles, other than necessary wearing apparel, found upon him.

26.
Power to detain and search aircraft, vessels, vehicles and persons
(1)

A police officer, or other person authorized in writing in that behalf by Inspector-General of the National Police Service, may stop, search and detain—

(a)

any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found; or

(b)

any aircraft, vessel or vehicle which there is reason to suspect has been used or employed in the commission or to facilitate the commission of an offence under the provisions of Chapters XXVI, XXVIII and XXIX of the Penal Code (Cap. 63); or

(c)

any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.

(2)

No person shall be entitled to damages or compensation for loss or damage suffered by him in respect of the detention under this section of an aircraft, vessel or vehicle.

(3)

For the purposes of this section, “aircraft”, “vessel” and “vehicle”, respectively, include everything contained in, being on or attached to an aircraft, vessel or vehicle, as the case may be, which, in the opinion of the court, forms part of the equipment of the aircraft, vessel or vehicle.

[Act No. 13 of 1967, Sch., L.N. 474/1963, Act No. 18 of 2018, Sch.]

27.
Mode of searching women

Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

28.
Power to seize offensive weapons

The officer or other person making an arrest may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the court or officer before which or whom the officer or person making the arrest is required by law to produce the person arrested.

Arrest without Warrant

29.
Arrest by police officer without warrant

A police officer may, without an order from a magistrate and without a warrant, arrest—

(a)

any person whom he suspects upon reasonable grounds of having committed a cognizable offence;

(b)

any person who commits a breach of the peace in his presence;

(c)

any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

(d)

any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;

(e)

any person whom he suspects upon reasonable grounds of being a deserter from the armed forces;

(f)

any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;

(g)

any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;

(h)

any person whom he suspects upon reasonable grounds of having been concerned in an act committed at a place out of Kenya which, if committed in Kenya, would have been punishable as an offence, and for which he is liable to be extradited under the Extradition (Contiguous and Foreign Countries) Act (Cap. 76) or the Extradition (Commonwealth Countries) Act (Cap. 77);

(i)

any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking;

(j)

any released convict committing a breach of any provision prescribed by section 344 or of any rule made thereunder;

(k)

any person for whom he has reasonable cause to believe a warrant of arrest has been issued.

[Act No. 5 of 1958, s. 2, Act No. 13 of 1967, First Sch., L.N. 124/1964.]

30.
Arrest of vagabonds, habitual robbers, etc.

An officer in charge of a police station may in the same manner arrest or cause to be arrested—

(a)

any person found taking precautions to conceal his presence within the limits of the station under circumstances which afford reason to believe that he is taking those precautions with a view to committing a cognizable offence;

(b)

Repealed by Act No. 5 of 2003, s.61;

(c)

Repealed by Act No. 5 of 2003, s.61.

31.
Procedure when police officer deputes subordinate to arrest without warrant

When an officer in charge of a police station requires an officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant under section 30, he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.

32.
Refusal to give name and residence
(1)

When a person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence refuses on the demand of the officer to give his name and residence, or gives a name or residence which the officer has reason to believe to be false, he may be arrested by the officer in order that his name or residence may be ascertained.

(2)

When the true name and residence of the person have been ascertained he shall be released on his executing a bond, with or without sureties, to appear before a magistrate if so required:

Provided that if the person is not resident in Kenya the bond shall be secured by a surety or sureties resident in Kenya.

(3)

Should the true name and residence of the person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be taken before the nearest magistrate having jurisdiction.

33.
Disposal of persons arrested by police officer

A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions of this Code as to bail, take or send the person arrested before a magistrate having jurisdiction in the case or before an officer in charge of a police station.

34.
Arrest by private person
(1)

A private person may arrest any person who in his view commits a cognizable offence, or whom he reasonably suspects of having committed a felony.

(2)

Persons found committing an offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorized by him.

35.
Disposal of person arrested by private person
(1)

A private person arresting another person without a warrant shall without unnecessary delay make over the person so arrested to a police officer, or in the absence of a police officer shall take that person to the nearest police station.

(2)

If there is reason to believe that the person comes under section 29, a police officer shall rearrest him.

(3)

If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which the officer has reason to believe to be false, he shall be dealt with under section 32.

(4)

If there is no sufficient reason to believe that he has committed an offence he shall at once be released.

36.
Detention of persons arrested without warrant

When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:

Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.

[Act No. 22 of 1959, s. 6, Act No. 13 of 1988, Sch.]

37.
Police to report apprehensions

Officers in charge of police stations shall report to the nearest magistrate the cases of all persons arrested without warrant within the limits of their respective stations, whether those persons have been admitted to bail or not.

38.
Offence committed in magistrate’s presence

When an offence is committed in the presence of a magistrate within the local limits of his jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions of this Code as to bail, commit the offender to custody.

39.
Arrest by magistrate

A magistrate may at any time arrest or direct the arrest in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Escape and Retaking

40.
Recapture of person escaping

If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or is rescued may immediately pursue and arrest him in any place in Kenya.

41.
Provisions of sections 22 and 23 to apply to arrests under section 40

The provisions of sections 22 and 23 shall apply to arrests under section 40 although the person making the arrest is not acting under a warrant and is not a police officer having authority to arrest.

42.
Assistance to magistrate or police officer

Every person is bound to assist a magistrate or police officer reasonably demanding his aid—

(a)

in the taking or preventing the escape of another person whom the magistrate or police officer is authorized to arrest;

(b)

in the prevention or suppression of a breach of the peace, or in the prevention of injury attempted to be committed to any railway, canal, telegraph or public property.

PREVENTION OF OFFENCES [Sections 43 to 61A declared Unconstitutional by Constitutional Petition No. 45 of 2014]

Security for Keeping the Peace and for Good Behaviour

43.
Security for keeping the peace
(1)

Whenever a magistrate empowered to hold a subordinate court of the first class is informed that a person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, the magistrate shall examine the informant on oath and may as hereinafter provided require the person in respect of whom the information is laid to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit.

(2)

Proceedings shall not be taken under this section unless either the person informed against, or the place where the breach of the peace or disturbance is apprehended, is within the local limits of the magistrate’s jurisdiction.

(3)

When a magistrate not empowered to proceed under subsection (1) has reason to believe that a person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, and that a breach of the peace or disturbance cannot be prevented otherwise than by detaining the person in custody, the magistrate may, after recording his reasons, issue a warrant for his arrest (if he is not already in custody or before the court), and may send him before a magistrate empowered to deal with the case, with a copy of his reasons.

(4)

A magistrate before whom a person is sent under this section may detain that person in custody until the completion of the inquiry hereinafter prescribed.

[Act No. 22 of 1959, s. 7.]

45.
Security for good behaviour from suspected persons

Whenever a magistrate empowered to hold a subordinate court of the first class is informed on oath that a person is taking precautions to conceal his presence within the local limits of the magistrate’s jurisdiction, and that there is reason to believe that the person is taking those precautions with a view to committing an offence, the magistrate may, in the manner hereinafter provided, require that person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding one year, as the magistrate thinks fit.

46.
Security for good behaviour from habitual offenders

Whenever a magistrate empowered to hold a subordinate court of the first class is informed on oath that a person within the local limits of his jurisdiction—

(a)

is by habit a robber, housebreaker or thief; or

(b)

is by habit a receiver of stolen property, knowing it to have been stolen; or

(c)

habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property; or

(d)

habitually commits or attempts to commit, or aids or abets in the commission of, an offence punishable under Chapter XXX, Chapter XXXIII or Chapter XXXVI of the Penal Code; or

(e)

habitually commits or attempts to commit, or aids or abets in the commission of, offences involving a breach of the peace; or

(f)

is so desperate and dangerous as to render his being at large without security hazardous to the community; or

(g)

is a member of an unlawful society within the meaning of section 4(1) of the Societies Act (Cap. 108),

the magistrate may, in the manner hereinafter provided, require that person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the magistrate thinks fit, or why an order (hereinafter in this Part referred to as a restriction order) should not be made that he be taken to the district in which his home is situated and be restricted to that district during a period of three years:

Provided that where a magistrate is of the opinion that, having regard to all the circumstances of the case, it is desirable that the person be restricted to some other district he may specify that the person shall be so restricted.

[Act No. 57 of 1955, s. 4, Act No. 25 of 1971, 5.]

47.
Order to be made

When a magistrate acting under section 43, section 44, section 45 or section 46 deems it necessary to require a person to show cause, he shall make an order in writing setting out—

(a)

the substance of the information received;

(b)

in the case of a restriction order, the district to which the person concerned is to be restricted for a period of three years;

(c)

in any other case—

(i) the amount of the bond to be executed;
(ii) the term for which it is to be in force; and
(iii) the number, character and class of securities, if any, required. [Act No. 33 of 1958, s. 3, Act No. 25 of 1971, s. 6.]
48.
Procedure in case of person present in court

If the person in respect of whom an order under section 47 is made present in court, it shall be read over to him or, if he so desires, the substance thereof shall be explained to him.

49.
Summons or warrant in case of person not so present

If the person in respect of whom an order is made under section 47 is not present in court, the magistrate shall issue a summons requiring him to appear, or, when the person is in custody, a warrant directing the officer in whose custody he is to bring him before the court:

Provided that, whenever it appears to the magistrate upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the magistrate) that there is reason to fear the commission of a breach of the peace, and that a breach of the peace cannot be prevented otherwise than by the immediate arrest of the person, the magistrate may at any time issue a warrant for his arrest.

50.
Copy of order under section 47 to accompany summons or warrant

Every summons or warrant issued under section 49 shall be accompanied by a copy of the order made under section 47, and the copy shall be delivered by the officer serving or executing the summons or warrant to the person served with or arrested under it.

51.
Power to dispense with personal attendance

The magistrate may, if he sees sufficient cause, dispense with the personal attendance of a person called upon to show cause why he should not be ordered to execute a bond for keeping the peace, and may permit him to appear by an advocate.

52.
Inquiry as to truth of information
(1)

When an order under section 47 has been read or explained under section 48 to a person present in court, or when any person appears or is brought before a magistrate in compliance with or in execution of a summons or warrant issued under section 49, the magistrate shall proceed to inquire into the truth of the information upon which the action has been taken, and to take such further evidence as may appear necessary.

(2)

The inquiry shall be made, as nearly as may be practicable, in the manner prescribed by this Code for conducting trials and recording evidence in trials before subordinate courts.

(3)

For the purposes of this section, the fact that a person comes within the provisions of section 46 may be proved by evidence of general repute or otherwise.

(4)

Where two or more persons have been associated together in the matter under inquiry they may be dealt with in the same or separate inquiries, as the magistrate thinks just.

53.
Order to give security
(1)

If upon an inquiry it is proved that it is necessary for keeping the peace or maintaining good behaviour that the person in respect of whom the inquiry is made should be made subject to a restriction order or should execute a bond, with or without sureties, the magistrate shall make an order accordingly:

Provided that—

(i) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 47;
(ii) the amount of a bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;
(iii) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties.
(2)

A person in respect of whom an order is made under this section may appeal to the High Court, and the provisions of Part XI (relating to appeals) shall apply to the appeal.

[Act No. 22 of 1959, s. 9, Act No. 25 of 1971, Sch.]

54.
Discharge of person informed against

If on an inquiry under section 52 it is not proved that it is necessary for keeping the peace or maintaining good behaviour that the person in respect of whom the inquiry is made should be subject to a restriction order or should execute a bond, the magistrate shall make an entry on the record to that effect, and, if the person is in custody only for the purposes of the inquiry, shall release him, or, if he is not in custody, shall discharge him.

Proceedings in all Cases Subsequent to Order to Furnish Security

55.
Commencement of period for which security is required
(1)

If a person in respect of whom an order is made under section 47 or section 53 is, at the time the order is made, sentenced to or undergoing a sentence of imprisonment, the period of such order shall commence on the expiration of the sentence.

(2)

In other cases the period shall commence on the date of the order unless the magistrate, for sufficient reason, fixes a later date.

56.
Contents of bond

The bond to be executed by a person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit or the aiding, abetting, counselling or procuring the commission of an offence punishable with imprisonment, wherever it may be committed, shall be a breach of the bond.

57.
Power to reject sureties

A magistrate may refuse to accept a surety offered under any of the preceding sections of this Part on the ground that, for reasons to be recorded by the magistrate, the surety is an unfit person.

58.
Procedure on failure of person to give security
(1)

If a person ordered to give security does not give security on or before the date on which the period for which security is to be given commences, he shall, except in the case mentioned in subsection (2), be committed to prison, or, if he is already in prison, be detained in prison until that period expires or until within that period he gives the security to the court or magistrate who made the order requiring it.

(2)

When a person has been ordered by a magistrate to give security for a period exceeding one year, the magistrate shall, if the person does not give security, issue a warrant directing him to be detained in prison pending the orders of the High Court, and the proceedings shall be laid as soon as conveniently may be before that court.

(3)

The High Court, after examining the proceedings and requiring from the magistrate any further information or evidence which it thinks necessary, may make such order in the case as it thinks fit.

(4)

The period, if any, for which any person is imprisoned for failure to give security shall not exceed three years.

(5)

If the security is tendered to the officer in charge of the prison, he shall forthwith refer the matter to the court or magistrate who made the order, and shall await the orders of the court or magistrate.

[Act No. 26 of 1957, s. 2.]

59.
Power to release persons imprisoned for failure to give security

Whenever a magistrate empowered to hold a subordinate court of the first class is of the opinion that a person imprisoned for failing to give security may be released without hazard to the community, the magistrate shall make an immediate report of the case for the orders of the High Court, and that court may order the person to be discharged.

60.
Power of High Court to cancel bond

The High Court may at any time, for sufficient reasons to be recorded in writing, cancel any order made under section 47 or section 53.

61.
Discharge of surities
(1)

A surety for the peaceable conduct or good behaviour of another person may at any time apply to a magistrate empowered to hold a subordinate court of the first class to cancel a bond executed under any of the preceding sections of this Part within the local limits of his jurisdiction.

(2)

On the application being made, the magistrate shall issue his summons or warrant, as he thinks fit, requiring the person for whom the surety is bound to appear or to be brought before him.

(3)

When the person appears or is brought before the magistrate, the magistrate shall cancel the bond and shall order the person to give, for the unexpired portion of the term of the bond, fresh security of the same description as the original security.

(4)

Every such order shall for the purposes of sections 56, 57, 58 and 59 be deemed to be an order made under section 53.

61A.
Breach of restriction order

A person who, whilst subject to a restriction order, is found outside the district named in the order without the written permission of the chief officer of police of the district, or who fails to comply with any condition attached to that permission, shall be guilty of an offence and liable to imprisonment for a term not exceeding twelve months.

PREVENTIVE ACTION OF THE POLICE

62.
Police to prevent cognizable offences

A police officer may interpose for the purpose of preventing, and shall to the best of his ability prevent, the commission of a cognizable offence.

63.
Information of design to commit such offences

A police officer receiving information of a design to commit a cognizable offence shall communicate that information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of the offence.

64.
Arrest to prevent such offences

A police officer knowing of a design to commit a cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to the officer that the commission of the offence cannot otherwise be prevented.

65.
Prevention of injury to public property

A police officer may of his own authority interpose to prevent injury attempted to be committed in his view to public property, movable or immovable, or the removal of or injury to any public landmark or buoy or other mark used for navigation.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS PLACE OF TRIAL
66.
General authority of courts

Every court has authority to cause to be brought before it any person who is within the local limits of its jurisdiction and is charged with an offence committed within Kenya, or which according to law may be dealt with as if it had been committed within Kenya, and to deal with the accused person according to its jurisdiction.

67.
Accused person to be sent to district where offence committed

Where a person accused of having committed an offence within Kenya has escaped or removed from the province or district within which the offence was committed and is found within another province or district, the court within whose jurisdiction he is found shall cause him to be brought before it, and shall, unless authorized to proceed in the case, send him in custody to the court within whose jurisdiction the offence is alleged to have been committed or require him to give security for his surrender to that court there to answer the charge and to be dealt with according to law.

68.
Removal of accused person under warrant
(1)

Where a person is to be sent in custody in pursuance of section 67, a warrant shall be issued by the court within whose jurisdiction he is found, and that warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named and to carry him and deliver him up to the court within whose district the offence was committed or may be tried.

(2)

The person to whom the warrant is directed shall execute it according to its tenor without delay.

[Act No. 13 of 1982, First Sch.]

69.
Powers of High Court

The High Court may inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings.

[Act No. 13 of 1982, First Sch., Act No. 5 of 2003, s. 63.]

70.
Place and date of sessions of the High Court
(1)

For the exercise of its original criminal jurisdiction the High Court shall hold sittings at such places and on such days as the Chief Justice may direct.

(2)

The Registrar of the High Court shall ordinarily give notice beforehand of all such sittings.

[Act No. 13 of 1982, First Sch.]

71.
Ordinary place of inquiry and trial

Subject to the provisions of section 69, and to the powers of transfer conferred by sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence.

[Act No. 13 of 1982, First Sch.]

72.
Trial at place where Act done or where consequence of offence ensures

When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.

[Act No. 13 of 1982, First Sch.]

73.
Trial where offence is connected with another offence

When an act is an offence by reason of its relation to another act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be tried by a court within the local limits of whose jurisdiction either act was done.

[Act No. 13 of 1982, First Sch.]

74.
Trial where place of offence is uncertain

When—

(a)

it is uncertain in which of several local areas an offence was committed; or

(b)

an offence is committed partly in one local area and partly in another; or

(c)

an offence is a continuing one, and continues to be committed in more than one local areas; or

(d)

an offence consists of several acts done in different local areas,

it may be tried by a court having jurisdiction over any of those local areas.

[Act No. 13 of 1982, First Sch.]

75.
Offence committed on a journey

An offence committed whilst the offender is in the course of performing a journey or voyage may be tried by a court through or into the local limits of whose jurisdiction the offender or the person against whom or the thing in respect of which the offence was committed passed in the course of that journey or voyage.

[Act No. 13 of 1982, First Sch.]

76.
High Court to decide in cases of doubt
(1)

Whenever a doubt arises as to the court by which an offence should be tried, the court entertaining the doubt may report the circumstances to the High Court, and the High Court shall decide by which court the offence shall be inquired into or tried.

(2)

Any such decision of the High Court shall be final and conclusive, except that it shall be open to an accused person to show that no court in Kenya has jurisdiction in the case.

[Act No. 13 of 1982, First Sch.]

77.
Court to be open
(1)

Subject to subsection (2), the place in which a criminal court is held for the purpose of trying an offence shall be deemed an open court to which the public generally may have access, so far as it can conveniently contain them:

Provided that the presiding judge or magistrate may order at any stage of the trial of any particular case that the public generally or any particular person shall not have access to or remain in the room or building used by the court.

(2)

Notwithstanding the provisions of subsection (1), the proceedings in the trial of any case under sections 140, 141, 145, 166 and 167 of the Penal Code (Cap. 63) shall be held in private and no person shall, in relation to such trial, publish or cause to be published by any means—

(a)

any particulars calculated to lead to the identification of the victim; or

(b)

any picture of the victim.

(3)

A person who contravenes the provisions of subsection (2) commits an offence and is liable on conviction—

(a)

in the case of an individual, to a fine not exceeding one hundred thousand shillings; and

(b)

in the case of a body corporate, to a fine not exceeding five hundred thousand shillings.

[Act No. 13 of 1982, First Sch., Act No. 5 of 2003, s. 64.]

77A.

Repealed by Act No. 5 of 2003, s. 65.

Transfer of Cases

78.
Transfer of case where offence committed outside jurisdiction
(1)

If upon the hearing of a complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the court before which the complaint has been brought, the court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the court having jurisdiction where the cause of complaint arose.

(2)

If the accused person is in custody and the court directing the transfer thinks it expedient that custody should be continued, or, if he is not in custody, that he should be placed in custody, the court shall direct the offender to be taken by a police officer before the court having jurisdiction where the cause of complaint arose, and shall give a warrant for that purpose to the officer, and shall deliver to him the complaint and recognizances, if any, taken by the court, to be delivered to the court before whom the accused person is to be taken; and the complaint and recognizances, if any, shall be treated to all intents and purposes as if they had been taken by the last-mentioned court.

(3)

If the accused person is not continued or placed in custody, the court shall inform him that it has directed the transfer of the case, and thereupon the provisions of subsection (2) respecting the transmission and validity of the documents in the case shall apply.

79.
Transfer of cases between magistrates

A magistrate holding a subordinate court of the first class—

(a)

may transfer a case of which he has taken cognizance to any magistrate holding a subordinate court empowered to try that case within the local limits of the first class subordinate courts’ jurisdiction; and

(b)

may direct or empower a magistrate holding a subordinate court of the second class who has taken cognizance of a case and whether evidence has been taken in that case or not, to transfer it for trial to himself or to any other specified magistrate within the local limits of his jurisdiction who is competent to try the accused and that magistrate shall dispose of the case accordingly.

80.
Transfer of part-heard cases

If in the course of any trial before a magistrate the evidence appears to warrant a presumption that the case is one which should be tried by some other magistrate, he shall stay proceedings and submit the case with a brief report thereon to a magistrate holding a subordinate court of the first class empowered to direct the transfer of the case under section 79.

[Act No. 13 of 1982, First Sch., Act No. 5 of 2003, s. 67.]

CONTROL BY REPUBLIC IN CRIMINAL PROCEEDINGS

83.
Delegation of powers by Director of Public Prosecution

*The Director of Public Prosecutions may order in writing that all or any of the powers vested in him by sections 81 and 82, and by Part VIII, be vested for the time being in the Solicitor-General, the Deputy Public Prosecutor, the Assistant Deputy Public Prosecutor or a state counsel, and the exercise of those powers by the Solicitor-General, the Deputy Public Prosecutor, the Assistant Deputy Public Prosecutor or a state counsel shall then operate as if they had been exercised by the Director of Public Prosecutions:

Provided that the Director of Public Prosecutions may in writing revoke an order made by him under this section.

[Act No. 39 of 1951, s. 3, Act No. 12 of 1984, Sch., Act No. 12 of 2012, Sch.]

84.

Repealed by Act No. 5 of 2003, s. 69.

APPOINTMENT OF PUBLIC PROSECUTORS AND CONDUCT OF PROSECUTIONS

85.
Power to appoint public prosecutors
(1)

The Director of Public Prosecutions, by notice in the Gazette, may appoint public prosecutors for Kenya or for any specified area thereof, and either generally or for any specified case or class of cases.

(2)

The Director of Public Prosecutions, by writing under his hand, may appoint any advocate of the High Court or person employed in the public service, to be a public prosecutor for the purposes of any case.

__________________________

*Powers delegated to the Solicitor-General; Deputy Public Prosecutor; Assistant Deputy Public Prosecutor; Principal State Counsel; Provincial State Counsel, Central and Eastern Provinces; Provincial State Counsel, Coast Province; Provincial State Counsel, Nyanza Province; Provincial State Counsel, Rift Valley Province; and Provincial State Counsel, Western Province. (L.N.106/1984.)

(3)

Every public prosecutor shall be subject to the express directions of the Director of Public Prosecutions.

[Act No. 22 of 1959, s. 10, Act No. 7 of 2007, Sch., Act No. 12 of 2012, Sch.]

86.
Powers of public prosecutors

A public prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under trial or appeal; and if a private person instructs an advocate to prosecute in any such case the public prosecutor may conduct the prosecution, and the advocate so instructed shall act therein under his directions.

87.
Withdrawal from prosecution in trials before subordinate courts

In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions**, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—

(a)

if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;

(b)

if it is made after the accused person is called upon to make his defence, he shall be acquitted.

88.
Permission to conduct prosecution
(1)

A magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission.

(2)

Any such person or officer shall have the same power of withdrawing from the prosecution as is provided by section 87, and the provisions of that section shall apply to withdrawal by that person or officer.

(3)

Any person conducting the prosecution may do so personally or by an advocate.

INSTITUTION OF PROCEEDINGS

Making of Complaint

89.
Complaint and charge
(1)

Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without warrant.

_______________________

**Powers delegated to the Solicitor-General; Deputy Public Prosecutor; Assistant Deputy Public Prosecutor; Principal State Counsel; Provincial State Counsel, Central and Eastern Provinces; Provincial State Counsel, Coast Province; Provincial State Counsel, Nyanza Province; Provincial State Counsel, Rift Valley Province; and Provincial State Counsel, Western Province. (L.N. 106/1984.)

(2)

A person who believes from a reasonable and probable cause that an offence has been committed by another person may make a complaint thereof to a magistrate having jurisdiction.

(3)

A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate.

(4)

The magistrate, upon receiving a complaint, or where an accused person who has been arrested without a warrant is brought before him, shall, subject to the provisions of subsection (5), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged, unless the charge is signed and presented by a police officer.

(5)

Where the magistrate is of the opinion that a complaint or formal charge made or presented under this section does not disclose an offence, the magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reasons for the order.

(6)

Repealed by Act No. 10 of 1983, Sch.

90.
Issue of summons or warrant
(1)

Upon receiving a complaint and having signed the charge in accordance with section 89, the magistrate may issue either a summons or a warrant to compel the attendance of the accused person before a subordinate court having jurisdiction to try the offence alleged to have been committed:

Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the complainant or by a witness or witnesses.

(2)

The validity of proceedings taken in pursuance of a complaint or charge shall not be affected either by a defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge.

(3)

A summons or warrant may be issued on a Sunday.

[Act No. 13 of 1982, First Sch.]

PROCESSES TO COMPEL THE APPEARANCE OF ACCUSED PERSONS

Summons

91.
Form and contents of summons
(1)

Every summons issued by a court under this Code shall be in writing, in duplicate, signed and sealed by the presiding officer of the court or by such other officer as the High Court may from time to time by rule direct.

(2)

Every summons shall be directed to the person summoned and shall require him to appear at a time and place to be therein appointed before a court having jurisdiction to deal with the charge, and shall state shortly the offence with which the person against whom it is issued is charged.

[Act No. 3 of 1982, First Sch.]

92.
Service of summons
(1)

Every summons shall be served either by a police officer, an officer of the court issuing it or by such other person as the court may direct, and shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons.

(2)

Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

93.
Service when person summoned cannot be found

Where a person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with an adult member of his family or with his servant residing with him or with his employer; and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

94.
Procedure when service cannot be effected as before provided

If service in the manner provided by sections 92 and 93 cannot by the exercise of due diligence be effected, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides and thereupon the summons shall be deemed to have been duly served.

95.
Service on servant of Government

Where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which that person is employed, and the head shall thereupon cause the summons to be served in the manner provided by section 92 and shall return it to the court under his signature with the endorsement required by that section, and the signature shall be evidence of the service.

[Act No. 22 of 1959, s. 11, Act No. 13 of 1967, First Sch., L.N. 474/1963, Act No. 13 of 1982, First Sch.]

96.
Service on company

Service of a summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by registered letter addressed to the principal officer of the corporation in Kenya at the registered office of the company or body corporate; and in the latter case service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

[L.N. 199/1966.]

97.
Service outside local limits of jurisdiction

When a court desires that a summons issued by it shall be served at a place outside the local limits of its jurisdiction, it shall send the summons in duplicate to a magistrate within the local limits of whose jurisdiction the person summoned resides or is to be there served.

98.
Proof of service when serving officer not present
(1)

Where the officer who has served a summons is not present at the hearing of the case, and where a summons issued by a court has been served outside the local limits of its jurisdiction, an affidavit purporting to be made before a magistrate that the summons has been served, and a duplicate of the summons purporting to be endorsed in the manner hereinbefore provided by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

(2)

The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.

99.
Power to dispense with personal attendance of accused
(1)

Subject to the following provisions of this section, whenever a magistrate issues a summons in respect of an offence other than a felony, he may if he sees reason to do so, and shall when the offence with which the accused is charged is punishable only by fine, or only by fine or imprisonment not exceeding three months, or by fine and such imprisonment, dispense with the personal attendance of the accused, if the accused pleads guilty in writing or appears by an advocate.

(2)

The magistrate trying a case may, at any subsequent stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce his attendance in the manner hereinafter provided, but no such warrant shall be issued unless a complaint or charge has been made upon oath.

(3)

If a magistrate imposes a fine on an accused person whose personal attendance has been dispensed with under this section, and the fine is not paid within the time prescribed for payment, the magistrate may forthwith issue a summons calling upon the accused person to show cause why he should not be committed to prison for such term as the magistrate may then specify; and if the accused person does not attend upon the return of the summons the magistrate may forthwith issue a warrant and commit the person to prison for such term as the magistrate may then fix.

(4)

If, in any case in which under this section the attendance of an accused person is dispensed with, previous convictions are alleged against that person and are not admitted in writing or through that person’s advocate, the magistrate may adjourn the proceedings and direct the personal attendance of the accused, and, if necessary, enforce his attendance in the manner provided hereafter in this Part.

(5)

Whenever the attendance of an accused person has been so dispensed with and his attendance is subsequently required, the cost of any adjournment for that purpose shall be borne in any event by the accused.

[Act No. 13 of 1982, First Sch.]

Warrant of Arrest

100.
Warrant after issue of summons

Notwithstanding the issue of a summons, a warrant may be issued at any time before or after the time appointed in the summons for the appearance of the accused.

101.
Warrant on disobedience of summons

If the accused does not appear at the time and place appointed in and by the summons, and his personal attendance has not been dispensed with under section 99, the court may issue a warrant to apprehend him and cause him to be brought before it; but no warrant shall be issued unless a complaint has been made upon oath.

102.
Form, contents and duration of warrant
(1)

Every warrant of arrest shall be under the hand of the judge or magistrate issuing it and shall bear the seal of the court.

(2)

Every warrant shall state shortly the offence with which the person against whom it is issued is charged, and shall name or otherwise describe that person, and shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant, or before some other court having jurisdiction in the case, to answer to the charge therein mentioned and to be further dealt with according to law.

(3)

A warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.

103.
Court may direct security to be taken
(1)

A court issuing a warrant for the arrest of a person in respect of an offence other than murder, treason or rape may direct by endorsement on the warrant that, if the person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take the security and shall release the person from custody.

(2)

The endorsement shall state—

(a)

the number of sureties;

(b)

the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and

(c)

the time at which he is to attend before the court.

(3)

Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the court.

104.
Warrants, to whom directed
(1)

A warrant of arrest may be directed to one or more police officers, or to one police officer and to all other police officers of the area within which the court has jurisdiction, or generally to all police officers of the area:

Provided that a court issuing a warrant may, if its immediate execution is necessary, and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2)

When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.

105.
Warrants may be directed to landholders, etc.
(1)

A magistrate empowered to hold a subordinate court of the first class may direct a warrant to a landholder, farmer or manager of land within the local limits of his jurisdiction for the arrest of an escaped convict or person who has been accused of a cognizable offence and has eluded pursuit.

(2)

The landholder, farmer or manager shall acknowledge in writing the receipt of the warrant and shall execute it if the person for whose arrest it was issued is in or enters on his land or farm or the land under his charge.

(3)

When the person against whom the warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a magistrate having jurisdiction, unless security is taken under section 103.

106.
Execution of warrant directed to police officer

A warrant directed to a police officer may also be executed by another police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

107.
Notification of substance of warrant

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

108.
Person arrested to be brought before court without delay

The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 103 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce that person.

109.
Where warrant may be executed

A warrant of arrest may be executed at any place in Kenya.

110.
Forwarding of warrants for execution outside jurisdiction
(1)

When a warrant of arrest is to be executed outside the local limits of the jurisdiction of the court issuing it, the court may, instead of directing the warrant to a police officer, forward it by post or otherwise to a magistrate within the local limits of whose jurisdiction it is to be executed.

(2)

The magistrate to whom a warrant is so forwarded shall endorse his name thereon, and, if practicable, cause it to be executed in the manner hereinbefore provided within the local limits of his jurisdiction.

111.
Warrant directed to police officer for execution outside jurisdiction
(1)

When a warrant of arrest directed to a police officer is to be executed outside the local limits of the jurisdiction of the court issuing it, he shall take it for endorsement to a magistrate within the local limits of whose jurisdiction it is to be executed.

(2)

The magistrate shall endorse his name thereon, and the endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute it within those limits, and the local police officers shall, if so required, assist that officer in executing the warrant.

(3)

Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the magistrate within the local limits of whose jurisdiction the warrant is to be executed will prevent its execution, the police officer to whom it is directed may execute it without endorsement in any place outside the local limits of the jurisdiction of the court which issued it.

112.
Procedure on arrest of person outside jurisdiction
(1)

When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by which it was issued, the person arrested shall, unless the court which issued the warrant is within twenty miles of the place of arrest, or is nearer than the magistrate within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 103, be taken before the magistrate within the local limits of whose jurisdiction the arrest was made.

(2)

The magistrate shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to that court:

Provided that if the person has been arrested for an offence other than murder, treason or rape, and he is ready and willing to give bail to the satisfaction of the magistrate, or if a direction has been endorsed under section 103 on the warrant and the person is ready and willing to give the security required by the direction, the magistrate shall take the bail or security, as the case may be, and shall forward the bond to the court which issued the warrant.

(3)

Nothing in this section shall prevent a police officer from taking security under section 103.

113.
Irregularities in warrant

An irregularity or defect in the substance or form of a warrant, and any variance between it and the written complaint or information, or between either and the evidence produced on the part of the prosecution at a trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case, but, if a variance appears to the court to be such that the accused has been thereby deceived or misled, the court may, at the request of the accused, adjourn the hearing of the case to some future date, and in the meantime remand the accused or admit him to bail.

[Act No. 13 of 1982, First Sch.]

Miscellaneous Provisions regarding Processes

114.
Power to take bond for appearance

Where a person for whose appearance or arrest the officer presiding in a court is empowered to issue a summons or warrant is present in court, the officer may require the person to execute a bond, with or without sureties, for his appearance in that court.

115.
Arrest for breach of bond

When a person who is bound by a bond taken under this Code to appear before a court does not so appear, the officer presiding may issue a warrant directing that the person be arrested and produced before him.

116.
Power of court to order prisoner to be brought before it
(1)

Where a person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in prison within the local limits of the jurisdiction of that court, the court may issue an order to the officer in charge of the prison requiring him to bring the prisoner in proper custody, at a time to be named in the order, before the court.

(2)

The officer so in charge, on receipt of the order, shall provide for the safe custody of the prisoner during his absence from the prison.

117.
Provisions of this Part generally applicable to summonses and warrants

The provisions of this Part relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.

SEARCH WARRANTS

118.
Power to issue search warrant

Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.

[Act No. 22 of 1959, s. 12, Act No. 10 of 1983, Sch.]

119.
Execution of search warrants

A search warrant may be issued on any day (including Sunday), and may be executed on any day (including Sunday) between the hours of sunrise and sunset, but the court may, by the warrant authorize the police officer or other person to whom it is addressed to execute it at any hour.

120.
Persons in charge of closed place to allow ingress and egress
(1)

Whenever a building or other place liable to search is closed, a person residing in or being in charge of the building or place shall, on demand of the police officer or other person executing the search warrant and on production of the warrant, allow him free ingress thereto and egress therefrom and afford all reasonable facilities for a search therein.

(2)

If ingress into or egress from the building or other place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 22 or section 23.

(3)

Where a person in or about the building or place is reasonably suspected of concealing about his person an article for which search should be made, that person may be searched.

(4)

If that person is a woman the provisions of section 27 shall be observed.

121.
Detention of property seized
(1)

When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2)

If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.

(3)

If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise.

122.
Provisions applicable to search warrants

The provisions of subsections (1) and (3) of section 102, and sections 104, 106, 109, 110 and 111, shall, so far as may be, apply to search warrants issued under section 118.

PROVISIONS AS TO BAIL

124.
Bail bond

Before a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and, when he is released on bail, by one or more sufficient sureties, conditioned that the person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or police officer.

125.
Discharge from custody
(1)

As soon as the bond has been executed, the person for whose appearance it has been executed shall be released, and when he is in prison the court admitting him to bail shall issue an order of release to the officer in charge of the prison and the officer on receipt of the order shall release him.

(2)

Nothing in this section or in section 123 shall require the release of a person liable to be detained for some matter other than that in respect of which the bond was executed.

126.
Deposit instead of recognizance

When a person may be required by a court or officer to execute a bond, with or without sureties, the court or officer may, except in the case of a bond for good behaviour, require him to deposit a sum of money to such amount as the court or officer may fix, or to deposit property, in lieu of executing a bond.

127.
Power to order sufficient bail when that first taken is insufficient

If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the court may issue a warrant of arrest directing that the person released on bail be brought before it, and may order him to find sufficient sureties, and on his failing so to do may commit him to prison.

128.
Discharge of sureties
(1)

All or any of the sureties for the appearance and attendance of a person released on bail may at any time apply to a magistrate to discharge the bond either wholly or so far as it relates to the applicant or applicants.

(2)

On an application being made under subsection (1) the magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

(3)

On the appearance of the person pursuant to the warrant issued under subsection (2) or on his voluntary surrender, the magistrate shall direct the bond to be discharged either wholly or so far as it relates to the applicant or applicants, and shall call upon the person to find other sufficient sureties, and if he fails to do so may commit him to prison.

129.
Death of surety

Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond, but the party who gave the bond may be required to find a new surety.

130.
Persons bound by recognizance absconding may be committed

If it is made to appear to a court, by information on oath, that a person bound by recognizance is about to leave Kenya, the court may cause him to be arrested and may commit him to prison until the trial, unless the court sees fit to admit him to bail upon further recognizance.

131.
Forfeiture of recognizance
(1)

Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.

(2)

If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.

(3)

A warrant may be executed within the local limits of the jurisdiction of the court which issued it; and it shall authorize the attachment and sale of the movable property belonging to the person without those limits, when endorsed by a magistrate within the local limits of whose jurisdiction the property is found.

(4)

If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.

(5)

The court may remit a portion of the penalty mentioned and enforce payment in part only.

(6)

When a person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the court shall presume that the offence was committed by him unless the contrary is proved.

132.
Appeal from and revision of orders

All orders passed under section 131 by a magistrate shall be appealable to and may be revised by the High Court.

133.
Power to direct levy of amount due on certain recognizances

The High Court may direct a magistrate to levy the amount due on recognizance to appear and attend at the High Court.

CHARGES AND INFORMATIONS

134.
Offence to be specified in charge or information with necessary particulars

Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

135.
Joinder of counts in a charge or information
(1)

Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

(2)

Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.

(3)

Where, before trial, or at any stage of a trial, the court is of the opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of that charge or information.

136.
Joinder of two or more accused in one charge or information

The following persons may be joined in one charge or information and may be tried together—

(a)

persons accused of the same offence committed in the course of the same transaction;

(b)

persons accused of an offence and persons accused of abetment, or of an attempt to commit the offence;

(c)

persons accused of more offences than one of the same kind (that is to say, offences punishable with the same amount of punishment under the same section of the Penal Code or of any other Act or law) committed by them jointly within a period of twelve months;

(d)

persons accused of different offences committed in the course of the same transaction;

(e)

persons accused of an offence under Chapters XXVI to XXX, inclusive, of the Penal Code (Cap. 63), and persons accused of receiving or retaining property, possession of which is alleged to have been transferred by an offence committed by the first-named persons, or of abetment of or attempting to commit either of the last-named offences;

(f)

persons accused of an offence relating to counterfeit coin under Chapter XXXVI of the Penal Code, and persons accused of another offence under that Chapter relating to the same coin, or of abetment of or attempting to commit any such offence.

137.
Rules for the framing of charges and informations

The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code—

(a)
(i) Mode in which offences are to be charged.—a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;
(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;
(iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required;
(iv) the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;
(v) where a charge or information contains more than one count, the counts shall be numbered consecutively;
(b)
(i) Provisions as to statutory offences.—where an enactment constituting an offence states the offence to be the doing of or the omission to do any one of any different acts in the alternative, or the doing of or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence;
(ii) it shall not be necessary, in a count charging an offence constituted by an enactment, to negative any exception or exemption from, or qualifications to, the operation of the enactment creating the offence;
(c)
(i) Description of property.—the description of property in a charge or information shall be in ordinary language, and shall indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property;
(ii) where the property is vested in more than one person, and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with the others, and, if the persons owning the property are a body of persons with a collective name, such as a joint stock company or “Inhabitants”, “Trustees”, “Commissioners” or “Club” or other similar name, it shall be sufficient to use the collective name without naming any individual;
(iii) property belonging to or provided for the use of a public establishment, service or department may be described as the property of the Government;
(iv) coin, bank notes and currency notes may be described as money; and an allegation as to money, so far as regards the description of the property, shall be sustained by proof of an amount of coin or of any bank or currency note (although the particular species of coin of which the amount was composed or the particular nature of the bank or currency note is not proved); and, in cases of stealing and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although the coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to another person and that part has been returned accordingly;
(d)

Description of persons.—the description or designation in a charge or information of the accused person, or of another person to whom reference is made therein, shall be reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances, or the person may be described as “a person unknown”;

(e)

Description of document.—where it is necessary to refer to a document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out a copy thereof;

(f)

General rule as to description.—subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to;

(g)

Statement of intent.—it shall not be necessary, in stating an intent to defraud, deceive or injure, to state an intent to defraud, deceive or injure a particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence;

(h)

Mode of charging previous convictions.—where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence;

(i)

Use of figures and abbreviations.—figures and abbreviations may be used for expressing anything which is commonly expressed thereby;

(j)

Gross sum may be specified in certain cases of stealing.—when a person is charged with an offence under section 280, 281, 282 or 283 of the Penal Code (Cap. 63), it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged

have been committed without specifying particular times or exact dates.

[Act No. 22 of 1959, s. 14, L.N. 124/1964, Act No. 13 of 1967, First Sch.]

PLEA AGREEMENTS

137A.
Plea agreement negotiation
(1)

Subject to section 137B, a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of—

(a)

reduction of a charge to a lesser included offence;

(b)

withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.

(2)

A plea agreement entered into under subsection (1)(a) or (b) may provide for the payment by an accused person of any restitution or compensation.

(3)

A plea agreement under subsection (1) shall be entered into only after an accused person has been charged, or at anytime before judgement.

(4)

Where a prosecution is undertaken privately no plea agreement shall be concluded without the written consent of the Director of Public Prosecutions.

137B.
Plea agreement on behalf of the Republic

A plea agreement on behalf of the Republic shall be entered into by the Director of Public Prosecutions or officers authorized by the Director of Public Prosecutions in accordance with article 157(9) of the Constitution and any other person authorized by any written law to prosecute:

Provided that in any trial before a subordinate court, a public prosecutor may with the prior written approval of the Director of Public Prosecutions or officers subordinate to him, as the case may be, enter into a plea agreement in accordance with section 137A(1).

137C.
Initiation of plea agreement
(1)

An offer for a plea agreement may be initiated by—

(a)

a prosecutor; or

(b)

an accused person or his legal representative.

(2)

The court shall be notified by the parties referred to in subsection (1) of their intention to negotiate a plea agreement.

(3)

The court shall not participate in plea negotiation between a public prosecutor and an accused person under this Part.

137D.
Consultation with victim, etc.

A prosecutor shall only enter into a plea agreement in accordance with section 137A

(a)

after consultation with the police officer investigating the case;

(b)

with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community;

(c)

unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement.

137E.
Form of plea agreement

A plea agreement shall be in writing, and shall—

(a)

be reviewed and accepted by the accused person, or explained to the accused person in a language that he understands;

(b)

if the accused person has negotiated with the prosecutor through an interpreter, contain a certificate by the interpreter to the effect that the interpreter is proficient in that language and that he interpreted accurately during the negotiations and in respect of the contents of the agreement;

(c)

state fully the terms of the agreement, the substantial facts of the matter and all other relevant facts of the case and any admissions made by the accused person;

(d)

be signed by the prosecutor and the accused person or his legal representative;

(e)

be signed by the complainant if a compensation order contemplated in section 175(2)(b) has been included in the agreement.

137F.
Recording of plea agreement by court
(1)

Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands—

(a)

the right to—

(i) plead not guilty, or having already so pleaded, to persist in that plea;
(ii) be presumed innocent until proved guilty;
(iii) remain silent and not to testify during the proceedings;
(iv) not being compelled to give self-incriminating evidence;
(v) a full trial;
(vi) be represented by a legal representative of his own choice, and where necessary, have the court appoint a legal representative;
(vii) examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;
(b)

that by accepting the plea agreement, he is waiving his right to a full trial;

(c)

the nature of the charge he is pleading to;

(d)

any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge;

(e)

any mandatory minimum penalty;

(f)

any applicable forfeiture;

(g)

the court’s authority to order compensation under section 175(2)(b), restitution under section 177, or both;

(h)

that by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence;

(i)

the prosecution’s right, in the case of prosecution for perjury or false statement, to use against the accused any statement that the accused gives in the agreement.

(2)

The prosecutor shall lay before the court the factual basis of a plea agreement and the court shall determine and be satisfied that there exists a factual basis of the plea agreement.

137G.
Competence of accused to make a plea agreement

The court shall, before recording a plea agreement, satisfy itself that at the time the agreement was entered into, the accused person was competent, of sound mind and acted voluntarily.

137H.
Record of factual basis of plea
(1)

Where the court accepts a plea agreement—

(a)

it shall enter the factual basis of the plea on record;

(b)

the agreement shall become binding upon the prosecutor and the accused;

(c)

the agreement shall become part of the record of the court.

(2)

Where a plea agreement entered into in accordance with section 137A(1)(a) is accepted by the court in accordance with this section, the court shall proceed to convict an accused person accordingly.

137I.
Address by parties
(1)

Upon conviction, the court may invite the parties to address it on the issue of sentencing in accordance with section 216.

(2)

In passing a sentence, the court shall take into account—

(a)

the period during which the accused person has been in custody;

(b)

a victim impact statement, if any, made in accordance with section 329C;

(c)

the stage in the proceedings at which the accused person indicated his intention to enter into a plea agreement and the circumstances in which this indication was given;

(d)

the nature and amount of any restitution or compensation agreed to be made by the accused person.

(3)

Where necessary and desirable, the court may in passing a sentence, take into account a probation officer’s report.

137J.
Rejection of plea agreement
(1)

Where the court rejects a plea agreement—

(a)

it shall record the reasons for such rejection and inform the parties accordingly;

(b)

the plea agreement shall become null and void and no party shall be bound by its terms;

(c)

the proceedings giving rise to the plea agreement shall be inadmissible in a subsequent trial or any future trial relating to the same facts; and

(d)

a plea of not guilty shall be entered accordingly.

(2)

Where a plea agreement has been rejected by the court and a plea of not guilty consequently entered, the prosecution may, upon being informed of the fact under subsection (1)(a), proceed to try the matter afresh before another court.

Provided that the accused person may waive his right to have the trial proceed before another court.

(3)

Upon rejection of a plea agreement, there shall be no further plea negotiation in a trial relating to the same facts.

(4)

Where the court has rejected a plea agreement under this section, no party shall appeal against, or apply for a review of, the order of the court rejecting the agreement.

137K.
Withdrawal of plea

An accused person may withdraw a plea of guilty pursuant to a plea agreement—

(a)

prior to acceptance of the plea by the court, for any reason; or

(b)

after the court accepts and convicts on the plea, but before it passes a sentence, if the accused person can demonstrate, to the satisfaction of the court, a fair and just reason for requesting the withdrawal.

137L.
Finality of judgement
(1)

Subject to subsection (2), the sentence passed by a court under this Part shall be final and no appeal shall lie therefrom except as to the extent or legality of the sentence imposed.

(2)

Notwithstanding subsection (1), the Director of Public Prosecutions, in the public interest and the orderly administration of justice, or the accused person, may apply to the court which passed the sentence to have the conviction and sentence procured pursuant to a plea agreement set aside on the grounds of fraud or misrepresentation.

(3)

Where a conviction or sentence has been set aside, under subsection (2), the provisions of section 137J shall apply mutatis mutandis.

137M.
Protection of plea agreement process

Notwithstanding anything contained in any written law for the time being in force, the statements or facts stated by an accused person in a plea agreement shall not be used for any other purpose except for the purpose of this Part.

137N.
Application

This Part shall not apply to—

(a)

offences under the Sexual Offences Act, 2006 (No. 3 of 2006);

(b)

offences of genocide, war crimes and crimes against humanity.

137O.
Rules under this sub-Part

The Attorney-General may make rules for the better carrying into effect the provisions of this Part and such rules shall apply mutatis mutandis to prosecutions conducted under section 88 of the Act.

PREVIOUS CONVICTION OR ACQUITTAL

138.
Persons convicted or acquitted not to be tried again for same offence

A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.

139.
Person may be tried again for separate offence

A person convicted or acquitted of an offence may afterwards be tried for another offence with which he might have been charged on the former trial under section 135(1).

140.
Consequences supervening or not known at time of former trial

A person convicted or acquitted of an act causing consequences which together with that act constitute a different offence from that for which he was convicted or acquitted may be afterwards tried for the last-mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted.