Criminal Procedure Code
Part 1 of 3 · provisions 1–200
This Act may be cited as the Criminal Procedure Code.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 75
- Version
- 11 Dec 2023
- Language
- en
- Official source
- View official record ↗
- Complete work
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Source attribution: Source: Kenya Law
Statute overview
About this statute
This Act may be cited as the Criminal Procedure Code. Section 2 provides definitions of terms used in the Code, including "cognizable offence", "drug related offence", "non-cognizable offence", and other specified terms. This section provides that offences under the Penal Code and offences under other laws are to be inquired into, tried and otherwise dealt with according to this Code; it also permits the High Court to apply English High Court procedure where this Code's procedure is inapplicable and preserves the effect of bilateral agreements regarding members of foreign armed or police forces present in Kenya. Section 10 has been repealed. Section 11 has been repealed.
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Provisions of Criminal Procedure Code
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Part I
PRELIMINARY
- 1 Verify source ↗
PRELIMINARY - 1. Short title
This Act may be cited as the Criminal Procedure Code.
Section 1. Short title Section This Act may be cited as the Criminal Procedure Code. - 2 Verify source ↗
PRELIMINARY - 2. Interpretation
Section 2 provides definitions of terms used in the Code, including "cognizable offence", "drug related offence", "non-cognizable offence", and other specified terms.
Section 2. Interpretation Section In this Code, unless the context otherwise requires— "cognizable offence" means an offence for which a police officer may, in accordance with the First Schedule or under any law for the time being in force, arrest without warrant; "complaint" deleted by ActNo. 7 of 2007, Sch.; "drug related offence" means any specified in Narcotic Drugs and Psychotropic Substances (Control) Act ( Cap. 245 ) and includes the possession, manufacture, distribution or receipt of any drug of any quantity whatsoever; "non-cognizable offence" means an offence for which a police officer may not arrest without warrant; "officer in charge of a police station" includes any officer superior in rank to an officer in charge of a police station and also includes, when the officer in charge of the police station is absent from the station-house, or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to that officer, and is above the rank of constable, or, when the Inspector-General of the National Police Service so directs, any other police officer so present; "plea agreement" means an agreement entered into between the prosecution and an accused person in a criminal trial in accordance with Part IV; "police officer" has the meaning assigned to it under the National Police Service Act ( Cap. 84 ); "police station" has the meaning assigned to it under the National Police Service Act ( Cap. 84 ); "prosecutor" means a public prosecutor or a person permitted by the court to conduct a prosecution under section 88 of the Act; "public prosecutor" means the Director of Public Prosecutions, a Prosecution Counsel, a person appointed under section 85 or a person acting under the direction of the Director of Public Prosecutions; "Registrar of the High Court" includes a Deputy Registrar of the High Court and a district registrar of the High Court; "summary trial" means a trial held by a subordinate court under Part VI. [Act No. 39 of 1951 , s. 2, Act No. 22 of 1959 , s. 2, Act No. 15 of 1961 , Sch., Act No. 28 of 1961 , Sch., Act No. 36 of 1962 , Sch., Act No. 13 of 1967 , First Sch., Act No. 17 of 1967 , s. 23, Act No. 8 of 1968 , Sch., Act No. 13 of 1982 , s. 2, L.N. 124/1964, Act No. 14 of 1991 , Sch., Act No. 5 of 2003 , s. 59, Act No. 7 of 2007 , Act No. 11 of 2008 , s. 2, Act No. 12 of 2012 , Sch., Act No. 18 of 2018 , Sch, Act No. 19 of 2023 , Sch.] - 3 Verify source ↗
PRELIMINARY - 3. Trial of offences under Penal Code (Cap. 63) and under other laws
This section provides that offences under the Penal Code and offences under other laws are to be inquired into, tried and otherwise dealt with according to this Code; it also permits the High Court to apply English High Court procedure where this Code's procedure is inapplicable and preserves the effect of bilateral agreements regarding members of foreign armed or police forces present in Kenya.
Section 3. Trial of offences under Penal Code (Cap. 63) and under other laws Section 3(1) All offences under the Penal Code ( Cap. 63 ) shall be inquired into, tried and otherwise dealt with according to this Code. Section 3(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. Section 3(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. Section 3(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 ( Cap. 63 ) 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. [Act No. 20 of 1965 , s. 2.]
Part II
POWERS OF COURTS
- 10 Verify source ↗
POWERS OF COURTS - 10.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 10 has been repealed.
Section 10.[Repealed by ActNo. 17 of 1967, s. 25.] - 11 Verify source ↗
POWERS OF COURTS - 11.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 11 has been repealed.
Section 11.[Repealed by ActNo. 17 of 1967, s. 25.] - 12 Verify source ↗
POWERS OF COURTS - 12. Combination of sentences
Any court may lawfully pass a sentence that combines any sentences it is authorized to impose.
Section 12. Combination of sentences Section Any court may pass a lawful sentence combining any of the sentences which it is authorized by law to pass. [Act No. 17 of 1967 , s. 26.] - 13 Verify source ↗
POWERS OF COURTS - 13.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 13 has been repealed.
Section 13.[Repealed by ActNo. 17 of 1967, s. 25.] - 14 Verify source ↗
POWERS OF COURTS - 14. Sentences in cases of conviction of several offences at one trial
When a person is convicted at one trial of two or more distinct offences, the court may impose the several punishments and, if those punishments consist of imprisonment, order them to run consecutively or direct that they run concurrently.
Section 14. Sentences in cases of conviction of several offences at one trial Section 14(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. Section 14(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. Section 14(3)(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 Section 14(3)(b) of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose. Section 14(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. [Act No. 17 of 1967 , s. 46, Act No. 25 of 1971 , s. 4, Act No. 4 of 1974 , Sch.] - 15 Verify source ↗
POWERS OF COURTS - 15. Suspended Sentences
Section 15. Suspended Sentences Section 15(1) Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by
Section 15. Suspended Sentences Section 15(1) Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (hereinafter called the "operational period") the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine. Section 15(2) Where the offender is convicted of an offence during the operational period the sentence for the first offence in respect of which the offender was convicted under subsection (1) shall thereupon take effect. Section 15(3) Where under subsection (2) the sentence passed for the first offence under subsection (1) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the first offence. [Act No. 7 of 1990 , s. 4.] - 16 Verify source ↗
POWERS OF COURTS - 16.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 16 has been repealed by Act No. 17 of 1967, s. 25.
Section 16.[Repealed by ActNo. 17 of 1967, s. 25.] - 17 Verify source ↗
POWERS OF COURTS - 17.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 17 has been repealed.
Section 17.[Repealed by ActNo. 17 of 1967, s. 25.] - 18 Verify source ↗
POWERS OF COURTS - 18.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 18 has been repealed by Act No. 17 of 1967, s. 25.
Section 18.[Repealed by ActNo. 17 of 1967, s. 25.] - 19 Verify source ↗
POWERS OF COURTS - 19.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 19 was repealed by Act No. 17 of 1967, s. 25.
Section 19.[Repealed by ActNo. 17 of 1967, s. 25.] - 20 Verify source ↗
POWERS OF COURTS - 20.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 20 has been repealed by ActNo. 17 of 1967, s. 25.
Section 20.[Repealed by ActNo. 17 of 1967, s. 25.] - 4 Verify source ↗
POWERS OF COURTS - 4. Offences under Penal Code (Cap. 63)
An offence under the Penal Code (Cap. 63) may be tried by the High Court or by a subordinate court shown in the First Schedule.
Section 4. Offences under Penal Code (Cap. 63) Section 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 Verify source ↗
POWERS OF COURTS - 5. Offences under other laws
Offences under laws other than the Penal Code shall be tried by the court named in that law; if no court is named, they may be tried by the High Court or by a subordinate court shown in the First Schedule.
Section 5. Offences under other laws Section 5(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. Section 5(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 Verify source ↗
POWERS OF COURTS - 6. Sentences which High Court may pass
The High Court may pass any sentence authorized by law.
Section 6. Sentences which High Court may pass Section The High Court may pass any sentence authorized by law. - 7 Verify source ↗
POWERS OF COURTS - 7. Sentences which subordinate courts may pass
Certain subordinate court judges may pass sentences authorized by law; resident magistrates' sentencing power is limited to listed offences; courts have jurisdiction to impose full imprisonment terms plus defaults for fines, costs or compensation.
Section 7. Sentences which subordinate courts may pass Section 7(1)(a) a chief magistrate, senior principal magistrate, principal magistrate or senior resident magistrate may pass any sentence authorized by law for any offence triable by that court; Section 7(1)(b) a resident magistrate may pass any sentence authorized by law for an offence under section 278, 308(1) or 322 of the Penal Code ( Cap. 63 ) or under the Sexual Offences Act ( Cap. 63A ). Section 7(2)(a) imprisonment for a term not exceeding seven years; Section 7(2)(b) a fine not exceeding twenty thousand shillings; Section 7(2)(c) repealed by ActNo. 5 of 2003, s. 60. Section 7(3)(a) imprisonment for a term not exceeding two years; Section 7(3)(b) a fine not exceeding ten thousand shillings; Section 7(3)(c) repealed by ActNo. 5 of 2003, s. 60 . Section 7(4) Deleted by ActNo. 5 of 2003, s. 60. Section 7(5) In determining the extent of a court’s jurisdiction under this section to pass a sentence of imprisonment, the court shall have jurisdiction to pass the full sentence of imprisonment provided for in this section in addition to any term of imprisonment which may be awarded in default of payment of a fine, costs or compensation. [Act No. 42 of 1952 , s. 2, Act No. 57 of 1955 , s. 4, Act No. 33 of 1963 , Sch., Act No. 17 of 1967 , s. 24, Act No. 3 of 1969 , s. 6, Act No. 25 of 1971 , Sch., Act No. 4 of 1974 , Sch., Act No. 18 of 1979 , Sch., Act No. 11 of 1983 , Sch., Act No. 18 of 1986 , Sch., Act No. 14 of 1991 , Sch., Act No. 5 of 2003 , s. 60, Act No. 7 of 2007 , Sch.] - 8 Verify source ↗
POWERS OF COURTS - 8. Powers of Judicial Service Commission to extend jurisdiction of subordinate courts
The Judicial Service Commission may, by notice in the Gazette, extend a particular magistrate's jurisdiction; a magistrate whose jurisdiction is extended may pass the sentences authorized in law.
Section 8. Powers of Judicial Service Commission to extend jurisdiction of subordinate courts Section 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. [Act No. 33 of 1963 , Sch., Act No. 11 of 1983 , Sch.] - 9 Verify source ↗
POWERS OF COURTS - 9.[Repealed by ActNo. 17 of 1967, s. 25.]
Section 9 has been repealed.
Section 9.[Repealed by ActNo. 17 of 1967, s. 25.]
Part III
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING
- 21 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 21. Arrest
Police officers or other persons making an arrest must physically touch or confine the person arrested (unless the person submits), may use all necessary means if the person resists or attempts to evade, and must not use more force than is reasonable or necessary for apprehension.
Section 21. Arrest Section 21(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. Section 21(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. Section 21(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 22. Search of place entered by person sought to be arrested
If a person acting under an arrest warrant or a police officer believes the person sought is inside a place, the occupier or person in charge must allow ingress and facilities for a search; if ingress cannot be obtained the warrant-holder or police officer may enter and, after notifying authority and purpose and demanding admittance, may break doors or windows to enter; special notice and withdrawal facilities must be given before entering an apartment occupied by a woman who customarily does not appear in public.
Section 22. Search of place entered by person sought to be arrested Section 22(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. Section 22(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 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 to liberate themselves or another person detained there after lawfully entering to make an arrest.
Section 23. Power to break out of house, etc., for purposes of liberation Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 24. No unnecessary restraint
A person arrested is entitled not to be subjected to more restraint than is necessary to prevent their escape.
Section 24. No unnecessary restraint Section The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. - 25 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 25. Search of arrested persons
Search of arrested persons by a police officer under a warrant (including bail-related conditions)
Section 25. Search of arrested persons Section 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 - 26 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 26. Power to detain and search aircraft, vessels, vehicles and persons
Section 26 permits detention and search of any aircraft, vessel, or vehicle suspected to contain stolen or unlawfully obtained items, or suspected to have been used to facilitate certain Penal Code offences; and states that no person is entitled to damages or compensation for detention under this section; it also defines "aircraft", "vessel" and "vehicle" for these purposes.
Section 26. Power to detain and search aircraft, vessels, vehicles and persons Section 26(1)(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 Section 26(1)(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 Section 26(1)(c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained. Section 26(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. Section 26(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 27. Mode of searching women
If a woman must be searched, the search must be carried out by another woman and done with strict regard to decency.
Section 27. Mode of searching women Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 28. Power to seize offensive weapons
Power to seize offensive weapons
Section 28. Power to seize offensive weapons - 29 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 29. Arrest bypolice officerwithout warrant
A police officer has the power to arrest without a warrant any person whom he suspects on reasonable grounds of having committed a cognizable offence.
Section 29. Arrest bypolice officerwithout warrant Section any person whom he suspects upon reasonable grounds of having committed a cognizable offence ; - 30 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 30. Arrest of vagabonds, habitual robbers, etc.
Section 30: 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.
Section 30. Arrest of vagabonds, habitual robbers, etc. Section 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 ; - 31 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 31. Procedure whenpolice officerdeputes subordinate to arrest without warrant
If the officer in charge requires a subordinate to arrest someone lawfully arrestable without a warrant under section 30 (when the officer is not present), the officer in charge must give a written order specifying the person and the offence or cause.
Section 31. Procedure whenpolice officerdeputes subordinate to arrest without warrant Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 32. Refusal to give name and residence
A police officer may arrest a person who refuses or gives a false name or residence so the name and residence can be ascertained; once ascertained the person must execute a bond (with special surety rule for non-residents); if the name is not ascertained within twenty-four hours or the bond/sureties are not provided he shall be taken before a magistrate.
Section 32. Refusal to give name and residence Section 32(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. Section 32(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. Section 32(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 33. Disposal of persons arrested bypolice officer
A police officer who makes an arrest without a warrant must, without unnecessary delay and subject to bail provisions, take or send the arrested person before a magistrate with jurisdiction or before the officer in charge of a police station.
Section 33. Disposal of persons arrested bypolice officer Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 34. Arrest by private person
Section 34 permits private persons to arrest someone they view as committing a cognizable offence or whom they reasonably suspect of having committed a felony; it also permits property owners (or their servants/authorized persons) to arrest without a warrant persons found committing offences involving injury to property.
Section 34. Arrest by private person Section 34(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. Section 34(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 35. Disposal of person arrested by private person
Private persons who arrest someone without a warrant must promptly hand them to a police officer or, if no officer is available, take them to the nearest police station; police officers must rearrest persons believed to fall under section 29.
Section 35. Disposal of person arrested by private person Section 35(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 . Section 35(2) If there is reason to believe that the person comes under section 29 , a police officer shall rearrest him. Section 35(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 . Section 35(4) If there is no sufficient reason to believe that he has committed an offence he shall at once be released. - 36 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 36. Detention of persons arrested without warrant
The officer in charge of the police station may inquire into and may, except for serious offences, release a person arrested without warrant on bond; if it is not practicable to bring the person before a subordinate court within 24 hours the officer shall inquire; an officer may release a suspected arrestee when, after due inquiry, insufficient evidence appears.
Section 36. Detention of persons arrested without warrant Section 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.] - 36A Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 36A. Remand by court
Police must bring an arrested person before a court within 24 hours; courts may order remand and remand periods are limited to specified maximums.
Section 36A. Remand by court Section 36A(1) Pursuant to Article 49(1)(f) and (g) of the Constitution, a police officer shall present a person who has been arrested in court within twenty-four hours after being arrested. Section 36A(2)(a) produce the suspect before a court; and Section 36A(2)(b) apply in writing to the court for an extension of time for holding the suspect in custody. Section 36A(3)(a) the nature of the offence for which the suspect has been arrested; Section 36A(3)(b) the general nature of the evidence on which the suspect has been arrested; Section 36A(3)(c) the inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made by the police; and Section 36A(3)(d) the reasons necessitating the continued holding of the suspect in custody. Section 36A(4)(a) release the suspect unconditionally; Section 36A(4)(b) does not, while on release, commit an offence, interfere with witnesses or the investigations in relation to the offence for which the suspect has been arrested; Section 36A(4)(b)(i) does not, while on release, commit an offence, interfere with witnesses or the investigations in relation to the offence for which the suspect has been arrested; Section 36A(4)(b)(ii) is available for the purpose of facilitating the conduct of investigations and the preparation of any report to be submitted to the court dealing with the matter in respect of which the suspect stands accused; and Section 36A(4)(b)(iii) appears at such a time and place as the court may specify for the purpose of conducting preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries; or Section 36A(4)(c) having regard to the circumstances specified under subsection (5), make an order for the remand of the suspect in custody. Section 36A(5)(a) there are compelling reasons for believing that the suspect shall not appear for trial, may interfere with witnesses or the conduct of investigations, or commit an offence while on release; Section 36A(5)(b) it is necessary to keep the suspect in custody for his protection, or, where the suspect is a minor, for his welfare; Section 36A(5)(c) the suspect is serving a custodial sentence; or Section 36A(5)(d) the suspect, having been arrested in relation to the commission of an offence, has breached a condition for his release. Section 36A(6)(a) to execute a bond for such reasonable amount as the court considers appropriate in the circumstances; and Section 36A(6)(b) to provide one or more suitable sureties for the bond. Section 36A(7) Where a court makes an order for the remand of a suspect under subsection (4)(c), the period of remand shall not exceed thirty days. Section 36A(8) A police officer who detains a suspect in respect of whom an order has been issued under subsection (4)(c) may, at any time before the expiry of the period of remand specified by the court, apply to the Court for an extension of that period. Section 36A(9) The court shall not make an order for the extension of the time for remand under subsection (8) unless it is satisfied that having regard to the circumstances for which an order was issued under subsection (4)(c), it is necessary to grant the order. Section 36A(10) Where the court grants an extension under subsection (9), such period shall not, together with the period for which the suspect was first remanded in custody, exceed ninety days. [Act No. 19 of 2014 , s. 15.] - 37 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 37. Police to report apprehensions
Officers in charge of police stations must report to the nearest magistrate the cases of all persons arrested without warrant within their station limits, whether or not those persons have been admitted to bail.
Section 37. Police to report apprehensions Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 38. Offence committed in magistrate’s presence
If an offence occurs in the magistrate's presence within his jurisdiction, the magistrate may arrest the offender, may order any person to arrest the offender, and may, subject to this Code's provisions as to bail, commit the offender to custody.
Section 38. Offence committed in magistrate’s presence Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 39. Arrest by magistrate
Section 39 — Arrest by magistrate
Section 39. Arrest by magistrate - 40 Verify source ↗
GENERAL PROVISIONS ARREST, 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 anywhere in Kenya.
Section 40. Recapture of person escaping Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 41. Provisions of sections22and23to apply to arrests undersection 40
Sections 22 and 23 apply to arrests under section 40 even when the person making the arrest is not acting under a warrant and is not a police officer with authority to arrest.
Section 41. Provisions of sections22and23to apply to arrests undersection 40 Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 42. Assistance to magistrate orpolice officer
Assistance to magistrate or police officer in the taking or preventing the escape of another person whom the magistrate or police officer is authorized to arrest
Section 42. Assistance to magistrate orpolice officer Section in the taking or preventing the escape of another person whom the magistrate or police officer is authorized to arrest; - 42A Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 42A. Disclosure by prosecution
The prosecution must inform the accused in advance of the evidence it will rely on and ensure the accused has reasonable access to that evidence (subject to listed non-disclosure grounds).
Section 42A. Disclosure by prosecution Section 42A(1) Pursuant to Article 50(2)(j) of the Constitution, the prosecution shall inform the accused person in advance of the evidence that the prosecution intends to rely on and ensure that the accused person has reasonable access to that evidence. Section 42A(2)(a) if the evidence may facilitate the commission of other offences; Section 42A(2)(b) if it is not in the public interest to disclose such evidence; Section 42A(2)(c) where there are grounds to believe that disclosing such evidence might lead to an attempt being improperly made to persuade a witness to make a statement retracting his original statement, not to appear in court or otherwise to intimidate him. Section 42A(3)(a) touches on matters of national security; touches on the identity of an informant where there are good reasons for believing that disclosure of the informant's identity may place the family of the informant in danger; Section 42A(3)(b) discloses the identity of a witness who might be in danger of assault or intimidation if his identity is known; Section 42A(3)(c) contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that the person was a suspect; Section 42A(3)(d) discloses some unusual form of surveillance or method of detecting crime. Section 42A(4) Disclosure of evidence to the Court and the accused person under this section shall be done in camera. [Act No. 19 of 2014 , s. 16.] - 43 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 43. Security for keeping the peace
Magistrates must examine informants on oath; magistrates may require a person to show cause to enter a bond (up to one year) or may arrest and send a person to an empowered magistrate, and that magistrate may detain the person until inquiry completion.
Section 43. Security for keeping the peace Section 43(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. Section 43(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. Section 43(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. Section 43(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.] - 44 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 44. Security for good behaviour from persons disseminating seditious matter
Section 44 (Security for good behaviour from persons disseminating seditious matter) was repealed by Act No. 5 of 2003, s. 62.
Section 44. Security for good behaviour from persons disseminating seditious matter Section Repealed by ActNo. 5 of 2003, s. 62; - 45 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 45. Security for good behaviour from suspected persons
A first-class subordinate court magistrate may require a person, suspected of hiding within the magistrate’s area with intent to commit an offence, to show cause why the person should not be ordered to give a bond with sureties for good behaviour for up to one year.
Section 45. Security for good behaviour from suspected persons Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 46. Security for good behaviour from habitual offenders
Security for good behaviour from habitual offenders
Section 46. Security for good behaviour from habitual offenders Section is by habit a robber, housebreaker or thief; or - 47 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 47. Order to be made
Order to be made
Section 47. Order to be made Section the substance of the information received; - 48 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 48. Procedure in case of person present in court
If the person in respect of whom an order under section 47 is made is present in court, the order must be read over to him or, if he desires, its substance must be explained to him.
Section 48. Procedure in case of person present in court Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 49. Summons or warrant in case of person not so present
If the person subject to an order under section 47 is not present, the magistrate must issue a summons, or if the person is in custody, a warrant directing the custodian to bring him; the magistrate may issue an arrest warrant when there is reported information of a likely breach of the peace and immediate arrest is needed.
Section 49. Summons or warrant in case of person not so present Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 50. Copy of order undersection 47to accompany summons or warrant
An officer serving or executing a summons or warrant must deliver to the person served or arrested a copy of the order made under section 47, and every summons or warrant issued under section 49 must be accompanied by that copy.
Section 50. Copy of order undersection 47to accompany summons or warrant Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 51. Power to dispense with personal attendance
The magistrate may, if he sees sufficient cause, excuse a required person's personal attendance and allow them to appear through an advocate.
Section 51. Power to dispense with personal attendance Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 52. Inquiry as to truth of information
When a person is brought before a magistrate under the cited sections, the magistrate must inquire into the truth of the information and take any further evidence necessary; the magistrate may deal with associated persons together or separately.
Section 52. Inquiry as to truth of information Section 52(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. Section 52(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. Section 52(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. Section 52(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 53. Order to give security
Section 53 limits how security (bond) may be ordered, requires bonds for minors to be executed by their sureties, and allows persons subject to an order under this section to appeal to the High Court.
Section 53. Order to give security Section 53(1)(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 ; Section 53(1)(ii) the amount of a bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; Section 53(1)(iii) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties. Section 53(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 54. Discharge of person informed against
Section 54 is titled "Discharge of person informed against".
Section 54. Discharge of person informed against - 55 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 55. Commencement of period for which security is required
Section 55(1) says the period of an order begins when a current sentence of imprisonment ends; Section 55(2) says otherwise the period begins on the order date unless the magistrate, for sufficient reason, fixes a later date.
Section 55. Commencement of period for which security is required Section 55(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. Section 55(2) In other cases the period shall commence on the date of the order unless the magistrate, for sufficient reason, fixes a later date. [Act No. 25 of 1971 , Sch.] - 56 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 56. Contents of bond
A person bound by the bond must keep the peace or be of good behaviour; committing or attempting to commit, or aiding etc., an imprisonable offence is a breach of that bond.
Section 56. Contents of bond Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 57. Power to reject sureties
A magistrate may refuse to accept a surety offered under prior sections if the magistrate records reasons and considers the surety an unfit person.
Section 57. Power to reject sureties Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 58. Procedure on failure of person to give security
If a person ordered to give security fails to do so by the start date of the required period, they shall be committed to prison or detained until the period expires or they give the security; for orders exceeding one year a magistrate must issue a warrant and lay proceedings before the High Court; the High Court may make such order as it thinks fit; imprisonment for failure to give security shall not exceed three years; if security is tendered to the prison officer, the officer must refer the matter to the court or magistrate and await orders.
Section 58. Procedure on failure of person to give security Section 58(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. Section 58(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. Section 58(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. Section 58(4) The period, if any, for which any person is imprisoned for failure to give security shall not exceed three years. Section 58(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 59. Power to release persons imprisoned for failure to give security
When a first-class subordinate-court magistrate believes someone imprisoned for failing to give security can be released without danger to the community, the magistrate must immediately report the case to the High Court; the High Court may order discharge.
Section 59. Power to release persons imprisoned for failure to give security Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 60. Power of High Court to cancel bond
The High Court may at any time cancel any order made under section 47 or section 53 if there are sufficient reasons recorded in writing.
Section 60. Power of High Court to cancel bond Section 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 . [Act No. 25 of 1971 , Sch.] - 61 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 61. Discharge of sureties
A surety may apply at any time to a magistrate to cancel a bond; the magistrate must summons the bound person, cancel the bond when the person appears, and order fresh security for the unexpired term.
Section 61. Discharge of sureties Section 61(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. Section 61(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. Section 61(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. Section 61(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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 61A. Breach of restriction order
Creates an offence titled 'Breach of restriction order'.
Section 61A. Breach of restriction order - 62 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 62. Police to prevent cognizable offences
A police officer may interpose to prevent, and must to the best of his ability prevent, the commission of a cognizable offence.
Section 62. Police to prevent cognizable offences Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 63. Information of design to commit such offences
A police officer who receives information of a design to commit a cognizable offence must communicate that information to his subordinate police officer and to any other officer whose duty is to prevent or take cognizance of the offence.
Section 63. Information of design to commit such offences Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 64. Arrest to prevent such offences
A police officer who knows of a design to commit a cognizable offence may arrest the person planning it without a magistrate’s order or a warrant if the officer believes the offence cannot otherwise be prevented.
Section 64. Arrest to prevent such offences Section 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 Verify source ↗
GENERAL PROVISIONS ARREST, ESCAPE AND RETAKING - 65. Prevention of injury to public property
A police officer may, on his own authority and in his view, interpose to prevent injury being committed to public property or to public landmarks used for navigation.
Section 65. Prevention of injury to public property Section 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
- 100 Verify source ↗
PROVISIONS RELATING TO ALL - 100. Warrant after issue of summons
Even after a summons has been issued, a warrant may be issued at any time before or after the appearance time stated in the summons.
Section 100. Warrant after issue of summons Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 101. Warrant on disobedience of summons
If an accused fails to attend when summoned and attendance was not dispensed under section 99, the court may issue a warrant to apprehend them and bring them before the court, but no warrant can be issued unless a complaint has been made on oath.
Section 101. Warrant on disobedience of summons Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 102. Form, contents and duration of warrant
Arrest warrants must be signed by the issuing judge or magistrate and bear the court's seal; they must state the offence, identify the person, order apprehension and appearance, and remain in force until executed or cancelled by the issuing court.
Section 102. Form, contents and duration of warrant Section 102(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. Section 102(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. Section 102(3) A warrant shall remain in force until it is executed or until it is cancelled by the court which issued it. - 103 Verify source ↗
PROVISIONS RELATING TO ALL - 103. Court may direct security to be taken
A court issuing a warrant (other than for murder, treason or rape) may endorse the warrant to allow a person to be released on bond with sufficient sureties; the officer must take the security, release the person, and forward the bond to the court.
Section 103. Court may direct security to be taken Section 103(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. Section 103(2)(a) the number of sureties; Section 103(2)(b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and Section 103(2)(c) the time at which he is to attend before the court. Section 103(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the court. - 104 Verify source ↗
PROVISIONS RELATING TO ALL - 104. Warrants, to whom directed
A court may direct a warrant of arrest to police officers or, if immediate execution is necessary and no police officer is available, to other persons; those persons must execute the warrant. When a warrant is directed to multiple officers or persons, it may be executed by all or any one or more of them.
Section 104. Warrants, to whom directed Section 104(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. Section 104(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 Verify source ↗
PROVISIONS RELATING TO ALL - 105. Warrants may be directed to landholders, etc.
Magistrates may direct warrants to landholders, who must acknowledge receipt in writing and must execute the warrant if the person is on their land; arrested persons must be handed to the nearest police officer who must take them before a magistrate unless security is taken under section 103.
Section 105. Warrants may be directed to landholders, etc. Section 105(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. Section 105(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. Section 105(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 Verify source ↗
PROVISIONS RELATING TO ALL - 106. Execution of warrant directed topolice officer
A warrant addressed to a police officer may be executed by another police officer if that other officer's name is endorsed on the warrant by the officer to whom it is directed.
Section 106. Execution of warrant directed topolice officer Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 107. Notification of substance of warrant
A police officer or other person executing an arrest warrant must notify the person to be arrested of the substance of the warrant and, if so required, must show the warrant.
Section 107. Notification of substance of warrant Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 108. Person arrested to be brought before court without delay
Police officers or other persons executing an arrest warrant must, subject to section 103 as to security and without unnecessary delay, bring the arrested person before the court required by law to receive that person.
Section 108. Person arrested to be brought before court without delay Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 109. Where warrant may be executed
A warrant of arrest may be executed at any place in Kenya.
Section 109. Where warrant may be executed Section A warrant of arrest may be executed at any place in Kenya. - 110 Verify source ↗
PROVISIONS RELATING TO ALL - 110. Forwarding of warrants for execution outside jurisdiction
The court may forward a warrant for execution outside its local jurisdiction to a magistrate by post or otherwise instead of directing it to a police officer; the receiving magistrate must endorse the warrant and, if practicable, cause it to be executed within his jurisdiction.
Section 110. Forwarding of warrants for execution outside jurisdiction Section 110(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. Section 110(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 Verify source ↗
PROVISIONS RELATING TO ALL - 111. Warrant directed topolice officerfor execution outside jurisdiction
If an arrest warrant addressed to a police officer must be executed outside the issuing court's local limits, the officer must take it to a local magistrate for endorsement; the magistrate must endorse it; local police must assist if required; but if endorsement would be unreasonably delayed, the officer may execute the warrant without endorsement outside the local limits.
Section 111. Warrant directed topolice officerfor execution outside jurisdiction Section 111(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. Section 111(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. Section 111(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 Verify source ↗
PROVISIONS RELATING TO ALL - 112. Procedure on arrest of person outside jurisdiction
When a warrant issued by a court is executed outside that court's local limits, the arrested person must be taken before the local magistrate unless certain proximity or security conditions apply; the magistrate must direct removal to the issuing court if the arrested person is the one intended, and may take bail or security (and forward the bond) in specified cases.
Section 112. Procedure on arrest of person outside jurisdiction Section 112(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. Section 112(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. Section 112(3) Nothing in this section shall prevent a police officer from taking security under section 103 . - 113 Verify source ↗
PROVISIONS RELATING TO ALL - 113. Irregularities in warrant
Title: "Irregularities in warrant".
Section 113. Irregularities in warrant - 114 Verify source ↗
PROVISIONS RELATING TO ALL - 114. Power to take bond for appearance
When a person who is subject to a summons or warrant is present in court, the officer presiding in that court may require that person to give a bond (with or without sureties) for appearance.
Section 114. Power to take bond for appearance Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 115. Arrest for breach of bond
If a person bound by a bond to appear does not appear, the officer presiding may issue a warrant to arrest and produce that person before the court.
Section 115. Arrest for breach of bond Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 116. Power of court to order prisoner to be brought before it
If a person for whose appearance or arrest the court can issue a summons or warrant is imprisoned within the court's local jurisdiction, the court may order the prison officer to bring the prisoner before the court; the officer must ensure the prisoner's safe custody while absent.
Section 116. Power of court to order prisoner to be brought before it Section 116(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. Section 116(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 Verify source ↗
PROVISIONS RELATING TO ALL - 117. Provisions of this Part generally applicable to summonses and warrants
This section states that the provisions of this Part apply generally to summonses and warrants.
Section 117. Provisions of this Part generally applicable to summonses and warrants - 118 Verify source ↗
PROVISIONS RELATING TO ALL - 118. Power to issue search warrant
A court or magistrate may, on oath-based proof or reasonable suspicion that evidence or items related to an offence are at a place, issue a written search warrant authorizing a police officer or a named person to search the specified location and, if the item is found, seize it and bring it before a court.
Section 118. Power to issue search warrant Section 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.] - 118A Verify source ↗
PROVISIONS RELATING TO ALL - 118A.Ex-parteapplication for search warrant
An application for a search warrant under section 118 shall be made ex-parte to a magistrate.
Section 118A.Ex-parteapplication for search warrant Section An application for a search warrant under section 118 shall be made ex-parte to a magistrate. [Act No. 19 of 2014 , s. 17.] - 119 Verify source ↗
PROVISIONS RELATING TO ALL - 119. Execution of search warrants
A court may, by the warrant, authorize the police officer or other person to whom the warrant is addressed to execute a search warrant at any hour.
Section 119. Execution of search warrants Section 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. [Act No. 10 of 1983 , Sch.] - 120 Verify source ↗
PROVISIONS RELATING TO ALL - 120. Persons in charge of closed place to allow ingress and egress
Persons residing in or in charge of a closed building must, when presented with a search warrant and on demand by the officer executing it, allow the officer free entry and exit and provide reasonable facilities for the search.
Section 120. Persons in charge of closed place to allow ingress and egress Section 120(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. Section 120(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 . Section 120(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. Section 120(4) If that person is a woman the provisions of section 27 shall be observed. - 121 Verify source ↗
PROVISIONS RELATING TO ALL - 121. Detention of property seized
The court may detain property seized when brought before it until the case or investigation ends, may further detain it for appeal or trial, and must restore it if no appeal or commitment occurs unless the court disposes of it otherwise.
Section 121. Detention of property seized Section 121(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. Section 121(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. Section 121(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 Verify source ↗
PROVISIONS RELATING TO ALL - 122. Provisions applicable to search warrants
Provisions applicable to search warrants
Section 122. Provisions applicable to search warrants - 123 Verify source ↗
PROVISIONS RELATING TO ALL - 123. Bail in certain cases
A person arrested or brought before a court who is prepared to give bail may be admitted to bail; the officer or court may instead release the person on a bond without sureties; the High Court may direct admission to bail or reduction of bail.
Section 123. Bail in certain cases Section 123(1) When a person is arrested or detained without warrant by an officer in charge of a police station , or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part. Section 123(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Section 123(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced. [Act No. 22 of 1959 , s. 13, Act No. 6 of 1976 , Sch., Act No. 13 of 1978 , Sch., Act No. 19 of 1984 , Sch., Act No. 19 of 1985 , Sch., Act No. 7 of 1990 , Sch., Act No. 14 of 1991 , Sch., Act No. 5 of 2003 , s. 71, Act No. 19 of 2023 , Sch.] - 123A Verify source ↗
PROVISIONS RELATING TO ALL - 123A. Exception to right to bail
Sets out factors and circumstances described as exceptions to the right to bail.
Section 123A. Exception to right to bail Section 123A(1)(a) the nature or seriousness of the offence; Section 123A(1)(b) the character, antecedents, associations and community ties of the accused person; Section 123A(1)(c) the defendant's record in respect of the fulfillment of obligations under previous grants of bail; and; Section 123A(1)(d) the strength of the evidence of his having committed the offence; Section 123A(2)(a) has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody; Section 123A(2)(b) should be kept in custody for his own protection. - 124 Verify source ↗
PROVISIONS RELATING TO ALL - 124. Bail bond
A person must execute a bond for a sum the court or police officer thinks sufficient before release; sureties must execute the bond when released on bail; the person must attend at the time and place in the bond until the court or police officer directs otherwise.
Section 124. Bail bond Section 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 . [L.N. 142/1963.] - 125 Verify source ↗
PROVISIONS RELATING TO ALL - 125. Discharge from custody
When a bond is executed the person for whose appearance it was given shall be released; the court must issue a release order to the prison officer, and the officer, on receipt of that order, must release the person; section 125(2) preserves detention for other matters.
Section 125. Discharge from custody Section 125(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. Section 125(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 Verify source ↗
PROVISIONS RELATING TO ALL - 126. Deposit instead of recognizance
The court or officer may require a person to deposit money or property instead of executing a bond, except for bonds for good behaviour.
Section 126. Deposit instead of recognizance Section 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. [Act No. 13 of 1967 , 1st Sch., Act No. 4 of 1974 , Sch.] - 127 Verify source ↗
PROVISIONS RELATING TO ALL - 127. Power to order sufficient bail when that first taken is insufficient
If insufficient sureties were or become accepted, the court may issue a warrant for the person on bail to be brought before it, may order them to find sufficient sureties, and may commit them to prison if they fail.
Section 127. Power to order sufficient bail when that first taken is insufficient Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 128. Discharge of sureties
Sureties may apply to a magistrate at any time to discharge a bond; the magistrate must issue a warrant to bring the person before him on such application, and on the person's appearance or voluntary surrender must direct discharge of the bond and call for other sureties; if the person fails to find other sureties the magistrate may commit him to prison.
Section 128. Discharge of sureties Section 128(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. Section 128(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. Section 128(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 Verify source ↗
PROVISIONS RELATING TO ALL - 129. Death of surety
If a surety dies before forfeiture, the surety's estate is released from liability; the party who gave the bond may be required to find a new surety.
Section 129. Death of surety Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 130. Persons bound by recognizance absconding may be committed
If information on oath shows a person bound by recognizance is about to leave Kenya, the court may arrest and may commit that person to prison until trial, unless the court admits them to bail on further recognizance.
Section 130. Persons bound by recognizance absconding may be committed Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 131. Forfeiture of recognizance
If a recognizance is proved to be forfeited, the court must record the grounds and may call on persons bound to pay the penalty or show cause; if payment fails, the court may issue a warrant to attach and sell property, and if still unpaid the person may be imprisoned up to six months. The court may remit part of the penalty. A certified conviction copy used against a surety creates a presumption of the offender's guilt unless disproved.
Section 131. Forfeiture of recognizance Section 131(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. Section 131(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 property belonging to that person, or his estate if he is dead. Section 131(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. Section 131(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. Section 131(5) The court may remit a portion of the penalty mentioned and enforce payment in part only. Section 131(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. [Act No. 19 of 2023 , Sch.] - 132 Verify source ↗
PROVISIONS RELATING TO ALL - 132. Appeal from and revision of orders
Orders passed under section 131 by a magistrate may be revised by the High Court.
Section 132. Appeal from and revision of orders Section All orders passed under section 131 by a magistrate shall be appealable to and may be revised by the High Court. - 133 Verify source ↗
PROVISIONS RELATING TO ALL - 133. Power to direct levy of amount due on certain recognizances
Power to direct levy of amount due on certain recognizances.
Section 133. Power to direct levy of amount due on certain recognizances - 134 Verify source ↗
PROVISIONS RELATING TO ALL - 134. Offence to be specified in charge or information with necessary particulars
Every charge or information must include a statement of the specific offence(s) charged and any particulars necessary to give reasonable information about the nature of the offence.
Section 134. Offence to be specified in charge or information with necessary particulars Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 135. Joinder of counts in a charge or information
Allows multiple offences founded on the same facts or of a similar character to be charged together; requires each offence to be set out as a separate paragraph called a count; permits the court to order separate trials if necessary to avoid embarrassment or for other reasons.
Section 135. Joinder of counts in a charge or information Section 135(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. Section 135(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. Section 135(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 Verify source ↗
PROVISIONS RELATING TO ALL - 136. Joinder of two or more accused in one charge or information
Two or more persons accused of the same offence committed in the course of the same transaction are joined in one charge or information.
Section 136. Joinder of two or more accused in one charge or information Section persons accused of the same offence committed in the course of the same transaction; - 137 Verify source ↗
PROVISIONS RELATING TO ALL - 137. Rules for the framing of charges and informations
Section 137. Rules for the framing of charges and informations
Section 137. Rules for the framing of charges and informations - 137A Verify source ↗
PROVISIONS RELATING TO ALL - 137A. Plea agreement negotiation
Plea agreements may include reducing charges, withdrawing or staying charges, or providing for payment of restitution; they must be entered after charge or before judgment; private prosecutions require written consent of the Director of Public Prosecutions.
Section 137A. Plea agreement negotiation Section 137A(1)(a) reduction of a charge to a lesser included offence; Section 137A(1)(b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. Section 137A(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. Section 137A(3) A plea agreement under subsection (1) shall be entered into only after an accused person has been charged, or at anytime before judgement. Section 137A(4) Where a prosecution is undertaken privately no plea agreement shall be concluded without the written consent of the Director of Public Prosecutions. [Act No. 11 of 2008 , s. 3, Act No. 12 of 2012 , Sch.] - 137B Verify source ↗
PROVISIONS RELATING TO ALL - 137B. Plea agreement on behalf of the Republic
The Director of Public Prosecutions or officers authorised by the Director must enter into a plea agreement on behalf of the Republic; in subordinate court trials a public prosecutor may enter into a plea agreement with prior written approval of the Director or subordinate officers in accordance with section 137A(1).
Section 137B. Plea agreement on behalf of the Republic Section 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). [Act No. 11 of 2008 , s. 3, Act No. 12 of 2012 , Sch.] - 137C Verify source ↗
PROVISIONS RELATING TO ALL - 137C. Initiation ofplea agreement
Parties listed in subsection (1) must notify the court that they intend to negotiate a plea agreement; the court must not participate in plea negotiations between a public prosecutor and an accused person under this Part.
Section 137C. Initiation ofplea agreement Section 137C(1)(a) a prosecutor ; or Section 137C(1)(b) an accused person or his legal representative. Section 137C(2) The court shall be notified by the parties referred to in subsection (1) of their intention to negotiate a plea agreement . Section 137C(3) The court shall not participate in plea negotiation between a public prosecutor and an accused person under this Part. [Act No. 11 of 2008 , s. 3.] - 137D Verify source ↗
PROVISIONS RELATING TO ALL - 137D. Consultation withvictim, etc.
Consultation with the victim and with the police officer investigating the case.
Section 137D. Consultation withvictim, etc. Section after consultation with the police officer investigating the case; - 137E Verify source ↗
PROVISIONS RELATING TO ALL - 137E. Form ofplea agreement
The plea agreement must be reviewed and accepted by the accused person, or explained to the accused person in a language that he understands.
Section 137E. Form ofplea agreement Section be reviewed and accepted by the accused person, or explained to the accused person in a language that he understands; - 137F Verify source ↗
PROVISIONS RELATING TO ALL - 137F. Recording ofplea agreementby court
Specifies accused persons' procedural rights in plea contexts and requires the prosecutor to present a factual basis for a plea agreement and the court to be satisfied that such a factual basis exists.
Section 137F. Recording ofplea agreementby court Section 137F(1)(a) plead not guilty, or having already so pleaded, to persist in that plea; Section 137F(1)(a)(i) plead not guilty, or having already so pleaded, to persist in that plea; Section 137F(1)(a)(ii) be presumed innocent until proved guilty; Section 137F(1)(a)(iii) remain silent and not to testify during the proceedings; Section 137F(1)(a)(iv) not being compelled to give self-incriminating evidence; Section 137F(1)(a)(v) a full trial; Section 137F(1)(a)(vi) be represented by a legal representative of his own choice, and where necessary, have the court appoint a legal representative; Section 137F(1)(a)(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; Section 137F(1)(b) that by accepting the plea agreement , he is waiving his right to a full trial; Section 137F(1)(c) the nature of the charge he is pleading to; Section 137F(1)(d) any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge; Section 137F(1)(e) any mandatory minimum penalty; Section 137F(1)(f) any applicable forfeiture; Section 137F(1)(g) the court’s authority to order compensation under section 175 (2)(b), restitution under section 177 , or both; Section 137F(1)(h) that by entering into a plea agreement , he is waiving the right to appeal except as to the extent or legality of sentence; Section 137F(1)(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. Section 137F(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 . [Act No. 11 of 2008 , s. 3.] - 137G Verify source ↗
PROVISIONS RELATING TO ALL - 137G. Competence of accused to make aplea agreement
The court must, before recording a plea agreement, ensure that when the agreement was made the accused was competent, of sound mind, and acted voluntarily.
Section 137G. Competence of accused to make aplea agreement Section 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. [Act No. 11 of 2008 , s. 3.] - 137H Verify source ↗
PROVISIONS RELATING TO ALL - 137H. Record of factual basis of plea
If a plea agreement is accepted, the court must convict accordingly; the section records that the factual basis of the plea is entered on record, the agreement becomes binding on prosecutor and accused, and the agreement becomes part of the court record.
Section 137H. Record of factual basis of plea Section 137H(1)(a) it shall enter the factual basis of the plea on record; Section 137H(1)(b) the agreement shall become binding upon the prosecutor and the accused; Section 137H(1)(c) the agreement shall become part of the record of the court. Section 137H(2) Where a plea agreement entered into in accordance with section 137A (a) is accepted by the court in accordance with this section, the court shall proceed to convict an accused person accordingly. [Act No. 11 of 2008 , s. 3.] - 137I Verify source ↗
PROVISIONS RELATING TO ALL - 137I. Address by parties
Upon conviction, the court may invite the parties to address sentencing issues and, where necessary, may take into account a probation officer’s report.
Section 137I. Address by parties Section 137I(1) Upon conviction, the court may invite the parties to address it on the issue of sentencing in accordance with section 216 . Section 137I(2)(a) the period during which the accused person has been in custody; Section 137I(2)(b) a victim impact statement , if any, made in accordance with section 329C ; Section 137I(2)(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; Section 137I(2)(d) the nature and amount of any restitution or compensation agreed to be made by the accused person. Section 137I(3) Where necessary and desirable, the court may in passing a sentence, take into account a probation officer’s report. [Act No. 11 of 2008 , s. 3.] - 137J Verify source ↗
PROVISIONS RELATING TO ALL - 137J. Rejection ofplea agreement
If a plea agreement is rejected, the court must record reasons and inform the parties; the plea agreement becomes null and void and parties are not bound; prosecution may retry before another court but the accused may waive that right; no appeals against the rejection are allowed.
Section 137J. Rejection ofplea agreement Section 137J(1)(a) it shall record the reasons for such rejection and inform the parties accordingly; Section 137J(1)(b) the plea agreement shall become null and void and no party shall be bound by its terms; Section 137J(1)(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 Section 137J(1)(d) a plea of not guilty shall be entered accordingly. Section 137J(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. Section 137J(3) Upon rejection of a plea agreement , there shall be no further plea negotiation in a trial relating to the same facts. Section 137J(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. [Act No. 11 of 2008 , s. 3.] - 137K Verify source ↗
PROVISIONS RELATING TO ALL - 137K. Withdrawal of plea
A plea may be withdrawn prior to the court accepting the plea.
Section 137K. Withdrawal of plea Section prior to acceptance of the plea by the court, for any reason; or - 137L Verify source ↗
PROVISIONS RELATING TO ALL - 137L. Finality of judgement
Sentences under this Part are final except appeals on extent or legality; the Director of Public Prosecutions or the accused person may apply to set aside a conviction and sentence obtained by plea agreement on grounds of fraud or misrepresentation; if set aside, section 137J applies mutatis mutandis.
Section 137L. Finality of judgement Section 137L(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. Section 137L(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. Section 137L(3) Where a conviction or sentence has been set aside, under subsection (2), the provisions of section 137J shall apply mutatis mutandis . [Act No. 11 of 2008 , s. 3, Act No. 12 of 2012 , Sch.] - 137M Verify source ↗
PROVISIONS RELATING TO ALL - 137M. Protection ofplea agreementprocess
Statements or facts an accused person makes in a plea agreement may only be used for the purposes of this Part and for no other purpose.
Section 137M. Protection ofplea agreementprocess Section 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. [Act No. 11 of 2008 , s. 3.] - 137N Verify source ↗
PROVISIONS RELATING TO ALL - 137N. Application
Applies to offences under the Sexual Offences Act ( Cap. 63A );
Section 137N. Application Section offences under the Sexual Offences Act ( Cap. 63A ); - 137O Verify source ↗
PROVISIONS RELATING TO ALL - 137O. Rules under this sub-Part
Allows the making of rules under this sub-Part.
Section 137O. Rules under this sub-Part - 138 Verify source ↗
PROVISIONS RELATING TO ALL - 138. Persons convicted or acquitted not to be tried again for same offence
A person once tried and convicted or acquitted may not be tried again on the same facts for the same offence while that conviction or acquittal stands.
Section 138. Persons convicted or acquitted not to be tried again for same offence Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 139. Person may be tried again for separate offence
A person who was convicted or acquitted of an offence may later be tried for a different offence that could have been charged at the earlier trial.
Section 139. Person may be tried again for separate offence Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 140. Consequences supervening or not known at time of former trial
A person previously convicted or acquitted may later be tried for a different offence caused by the same act if the additional consequences were not yet known or had not occurred at the earlier trial.
Section 140. Consequences supervening or not known at time of former trial Section 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. - 141 Verify source ↗
PROVISIONS RELATING TO ALL - 141. Where original court was not competent to try subsequent charge
A person previously convicted or acquitted may still be charged and tried for another offence based on the same acts if the original court lacked competence.
Section 141. Where original court was not competent to try subsequent charge Section A person convicted or acquitted of an offence constituted by any acts may, notwithstanding the conviction or acquittal, be subsequently charged with and tried for another offence constituted by the same acts which he may have committed, if the court by which he was first tried was not competent to try the offence with which he is subsequently charged. - 142 Verify source ↗
PROVISIONS RELATING TO ALL - 142. Mode of proof of previous conviction
Specifies methods for proving a previous conviction: (a) an extract certified by the officer having custody of the court records as a copy of the sentence or order; (b) a certificate signed by the officer in charge of the prison or production of the warrant of commitment, in either case with evidence of the accused's identity; a Cabinet Secretary-prescribed fingerprint-comparison certificate given by an appointed officer is prima facie evidence if produced by the person who took the fingerprints; foreign convictions may be proved by a police certificate with the sentence copy and fingerprints/photographs plus identity evidence; and certificates under this section are prima facie evidence without proof of signature or authority.
Section 142. Mode of proof of previous conviction Section 142(1)(a) by an extract certified, under the hand of the officer having the custody of the records of the court in which the conviction was had, to be a copy of the sentence or order; or Section 142(1)(b) by a certificate signed by the officer in charge of the prison in which the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered, together with, in either case, evidence as to the identity of the accused person with the person so convicted. Section 142(2) A certificate in the form prescribed by the Cabinet Secretary given under the hand of an officer appointed by the Cabinet Secretary in that behalf, who has compared the finger prints of an accused person with the finger prints of a person previously convicted, shall be prima facie evidence of all facts therein set out if it is produced by the person who took the finger prints of the accused. Section 142(3) A previous conviction in a place outside Kenya may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or order, and the finger prints, or photographs of the finger prints, of the person so convicted, together with evidence that the finger prints of the person so convicted are those of the accused person. Section 142(4) A certificate under this section shall be prima facie evidence of all facts stated therein without proof that the officer purporting to sign it did in fact sign it and was empowered so to do. [L.N. 299/1956, L.N. 172/1960, Act No. 13 of 1982 , 1st Sch.] - 143 Verify source ↗
PROVISIONS RELATING TO ALL - 143. Leave of Director of Public Prosecutions necessary before prosecution instituted
Section 143 sets rules about the Director of Public Prosecutions' consent and certificate being required and presumed in certain prosecutions.
Section 143. Leave of Director of Public Prosecutions necessary before prosecution instituted Section 143(1)(a) proceedings before a subordinate court previous to the committal of an accused person for trial or to the determination of the court that the offender is to be put upon his trial shall not be deemed proceedings for the trial of the offence committed by the offender for the purposes of the consent and certificate; Section 143(1)(b) it shall not be necessary to aver in a charge or information that the consent or certificate of the Director of Public Prosecutions required by this section has been given, and the fact of their having been given shall be presumed unless disputed by the accused person at the trial; and the production of a document purporting to be signed by the Director of Public Prosecutions and containing the consent and certificate shall be sufficient evidence for all the purposes of this section of that consent and certificate; Section 143(1)(c) this section shall not prejudice or affect the trial of an act of piracy as defined by the Law of Nations. Section 143(2) In this section, "offence" means an act, neglect or default of such a description as would, if committed in England, be punishable on indictment according to the law of England for the time being in force. [Act No. 13 of 1967 , 1st Sch., L.N. 299/1956, L.N. 172/1960, L.N. 474/1963, Act No. 6 of 1989 , 1st Sch., Act No. 12 of 2012 , Sch.] - 144 Verify source ↗
PROVISIONS RELATING TO ALL - 144. Summons for witness
A criminal court may issue a summons to a person who will not voluntarily attend or produce material evidence, requiring attendance and production of documents.
Section 144. Summons for witness Section 144(1) If it is made to appear that material evidence can be given by or is in the possession of a person who will not voluntarily attend to give it or will not voluntarily produce it, a court having cognizance of a criminal cause or matter may issue a summons to that person requiring his attendance before the court or requiring him to bring and produce to the court for the purpose of evidence all documents and writings in his possession or power which may be specified or otherwise sufficiently described in the summons. Section 144(2) Nothing in this section shall affect the provisions of sections 131 and 132 of the Evidence Act ( Cap. 80 ). [Act No. 46 of 1963 , s. 183.] - 145 Verify source ↗
PROVISIONS RELATING TO ALL - 145. Warrant for witness who disobeys summons
The court may issue a warrant to bring a witness before the court if the witness, without sufficient excuse, fails to appear after proper service of a summons a reasonable time before.
Section 145. Warrant for witness who disobeys summons Section If, without sufficient excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring him before the court at the time and place as shall be therein specified. - 146 Verify source ↗
PROVISIONS RELATING TO ALL - 146. Warrant for witness in first instance
If the court, on oath evidence, believes a person will not attend unless compelled, the court may immediately issue a warrant for that person's arrest and production as a witness at a specified time and place.
Section 146. Warrant for witness in first instance Section If the court is satisfied by evidence on oath that the person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be therein specified. - 147 Verify source ↗
PROVISIONS RELATING TO ALL - 147. Mode of dealing with witness arrested under warrant
If a witness arrested under a warrant furnishes security by recognizance to the court's satisfaction for appearance at the hearing, the court may order his release; if he fails to furnish security, the court shall order him detained for production at the hearing.
Section 147. Mode of dealing with witness arrested under warrant Section When a witness is arrested under a warrant, the court may, on his furnishing security by recognizance to the satisfaction of the court for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish security, order him to be detained for production at the hearing. - 148 Verify source ↗
PROVISIONS RELATING TO ALL - 148. Power of court to order prisoner to be brought up for examination
A court may order the officer in charge of a local prison to bring a prisoner for examination, and the officer must comply and keep the prisoner safely while absent from prison.
Section 148. Power of court to order prisoner to be brought up for examination Section 148(1) A court desirous of examining, as a witness, in a case pending before it, a person confined in prison within the local limits of its jurisdiction, 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 for examination. Section 148(2) The officer so in charge, on receipt of the order, shall act in accordance therewith, and shall provide for the safe custody of the prisoner during his absence from the prison. - 149 Verify source ↗
PROVISIONS RELATING TO ALL - 149. Penalty for non-attendance of witness
A person summoned as a witness who, without lawful excuse, fails to attend as required, departs without the court's permission, or fails to attend after adjournment when ordered, is liable to a fine not exceeding five thousand shillings; the fine is to be levied by attachment and sale of the witness's movable property within the court's local jurisdiction; if the fine cannot be recovered the court may order imprisonment as a civil prisoner for fifteen days unless the fine is paid; the High Court may remit or reduce a fine imposed by a subordinate court.
Section 149. Penalty for non-attendance of witness Section 149(1) A person summoned to attend as a witness who, without lawful excuse, fails to attend as required by the summons, or who, having attended, departs without having obtained the permission of the court, or who fails to attend after adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine not exceeding five thousand shillings. Section 149(2) The fine shall be levied by attachment and sale of movable property belonging to the witness within the local limits of the jurisdiction of the court. Section 149(3) In default of recovery of the fine by attachment and sale the witness may, by order of the court, be imprisoned as a civil prisoner for a term of fifteen days unless the fine is paid before the end of term. Section 149(4) For good cause shown, the High Court may remit or reduce a fine imposed under this section by a subordinate court. [Act No. 5 of 2003 , s. 72.] - 150 Verify source ↗
PROVISIONS RELATING TO ALL - 150. Power to summon witnesses, or examine person present
A court may call, examine, recall or re-examine witnesses at any stage; the court must summon and examine persons whose evidence is essential, and shall adjourn if necessary to allow cross-examination; the prosecutor, prosecution advocate, defendant or defendant's advocate has the right to cross-examine.
Section 150. Power to summon witnesses, or examine person present Section A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case: Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness. - 151 Verify source ↗
PROVISIONS RELATING TO ALL - 151. Evidence to be given on oath
Every witness in a criminal cause or matter must be examined on oath; the court before which a witness appears has power to administer the oath.
Section 151. Evidence to be given on oath Section Every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath. [Act No. 42 of 1954 , s. 4.] - 152 Verify source ↗
PROVISIONS RELATING TO ALL - 152. Refractory witnesses
When a person refuses to comply with a court requirement (e.g., being sworn, answering questions, producing documents, or signing a deposition) the court may adjourn the case for up to eight days and may commit the person to prison; if the person again refuses when brought back the court may repeat the adjournment and commitment until compliance.
Section 152. Refractory witnesses Section 152(1)(a) refuses to be sworn; or Section 152(1)(b) having been sworn, refuses to answer any question put to him; or Section 152(1)(c) refuses or neglects to produce any document or thing which he is required to produce; or Section 152(1)(d) refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him. Section 152(2) If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time until the person consents to do what is so required of him. Section 152(3) Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it. - 153 Verify source ↗
PROVISIONS RELATING TO ALL - 153.[Repealed by ActNo. 46 of 1963, Second Sch.]
Section 153 was repealed.
Section 153.[Repealed by ActNo. 46 of 1963, Second Sch.] - 154 Verify source ↗
PROVISIONS RELATING TO ALL - 154. Issue of commission for examination of witness
A High Court or qualifying magistrate may issue a commission to a local magistrate to take a witness's evidence when necessary and attendance is impracticable; the commissioned magistrate must secure the witness and record the evidence and may exercise the same powers as at trial.
Section 154. Issue of commission for examination of witness Section 154(1) Whenever, in the course of a proceeding under this Code, the High Court or a magistrate empowered to hold a subordinate court of the first class is satisfied that the examination of a witness is necessary for the ends of justice, and that the attendance of the witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the court or magistrate may issue a commission to any magistrate within the local limits of whose jurisdiction the witness resides, to take the evidence of the witness. Section 154(2) The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in the case of a trial. - 155 Verify source ↗
PROVISIONS RELATING TO ALL - 155. Parties may examine witnesses
Parties in proceedings where a commission is issued may send written interrogatories and may appear to examine, cross-examine and re-examine witnesses; the magistrate receiving the commission must examine the witness on those interrogatories.
Section 155. Parties may examine witnesses Section 155(1) The parties to a proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon those interrogatories. Section 155(2) Any such party may appear before the magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the witness. - 156 Verify source ↗
PROVISIONS RELATING TO ALL - 156. Power of magistrate to apply for issue of commission
If, during a proceeding before a magistrate (other than one empowered to hold a subordinate court of the first class), it appears a commission is needed for a witness and the witness cannot attend without unreasonable delay, expense or inconvenience, the magistrate must apply to the High Court stating reasons; the High Court may issue the commission (as provided in section 154) or reject the application.
Section 156. Power of magistrate to apply for issue of commission Section Whenever, in the course of a proceeding under this Code before a magistrate other than a magistrate empowered to hold a subordinate court of the first class, it appears that a commission ought to be issued for the examination of a witness whose evidence is necessary for the ends of justice, and that the attendance of the witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the magistrate shall apply to the High Court, stating the reasons for the application; and the High Court may either issue a commission in the manner provided in section 154 or reject the application. - 157 Verify source ↗
PROVISIONS RELATING TO ALL - 157. Return of commission
Either party may read the executed commission, its return and the deposition in evidence, subject to all just exceptions.
Section 157. Return of commission Section 157(1) After a commission issued under section 154 or section 156 has been duly executed it shall be returned, together with the deposition of the witness examined thereunder, to the High Court or to the magistrate empowered to hold a subordinate court of the first class (as the case may be), and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record. Section 157(2) A deposition so taken, if it satisfies the conditions prescribed by section 34 of the Evidence Act ( Cap. 80 ) may also be received in evidence at a subsequent stage of the case before another court. [Act No. 46 of 1963 , s. 183.] - 158 Verify source ↗
PROVISIONS RELATING TO ALL - 158. Adjournment of inquiry or trial
Adjournment of inquiry or trial
Section 158. Adjournment of inquiry or trial - 159 Verify source ↗
PROVISIONS RELATING TO ALL - 159.[Repealed by ActNo. 46 of 1963, 2nd Sch.]
Section 159 was repealed by ActNo. 46 of 1963, 2nd Sch.
Section 159.[Repealed by ActNo. 46 of 1963, 2nd Sch.] - 160 Verify source ↗
PROVISIONS RELATING TO ALL - 160. Procedure where person charged is only witness
If the only defence witness is the accused, the accused must be called as a witness immediately after the close of the prosecution's evidence.
Section 160. Procedure where person charged is only witness Section Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution. - 161 Verify source ↗
PROVISIONS RELATING TO ALL - 161. Right of reply
Section 161. Right of reply
Section 161. Right of reply - 162 Verify source ↗
PROVISIONS RELATING TO ALL - 162. Inquiry by court as to soundness of mind of accused
If during trial the court believes the accused is of unsound mind and cannot make a defence, the court must inquire, may postpone or release on security in bail cases, must detain or transmit the record to the Cabinet Secretary in non-bail cases, and the President may order detention in a mental hospital.
Section 162. Inquiry by court as to soundness of mind of accused Section 162(1) **When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness. Section 162(2) If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case. ** Powers delegated to the Cabinet Secretary and to the Principal Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963. Section 162(3) If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf. Section 162(4) If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President. Section 162(5) Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164 . [Act No. 22 of 1959 , s. 15, Act No. 13 of 1967 , 1st Sch., L.N. 124/1964, Act No. 13 of 1982 , 1st Sch.] - 163 Verify source ↗
PROVISIONS RELATING TO ALL - 163. Procedure where person of unsound mind subsequently found capable of making defence
If a detained person is found capable of making a defence, the medical officer must send a certificate to the Director of Public Prosecutions; the Director must inform the recording court whether proceedings should continue; if proceedings continue the court must bring the person before it and deal with him under section 164, otherwise the court must order discharge and release (which does not bar later proceedings).
Section 163. Procedure where person of unsound mind subsequently found capable of making defence Section 163(1) If a person detained in a mental hospital or other place of custody under section 162 or section 280 is found by the medical officer in charge of the mental hospital or place to be capable of making his defence, the medical officer shall forthwith forward a certificate to that effect to the Director of Public Prosecutions. Section 163(2) The Director of Public Prosecutions shall thereupon inform the court which recorded the finding concerning that person under section 162 whether it is the intention of the Republic that proceedings against that person shall continue or otherwise. Section 163(3) In the former case, the court shall thereupon order the removal of the person from the place where he is detained and shall cause him to be brought in custody before it, and shall deal with him in the manner provided by section 164 ; otherwise the court shall forthwith issue an order that the person be discharged in respect of the proceedings brought against him and released from custody and thereupon he shall be released, but the discharge and release shall not operate as a bar to any subsequent proceedings against him on account of the same facts. [Act No. 22 of 1959 , s. 16, Act No. 13 of 1967 , 1st Sch., Act No. 20 of 1989 , Sch., Act No. 12 of 2012 , Sch.] - 164 Verify source ↗
PROVISIONS RELATING TO ALL - 164. Resumption of proceedings or trial
The court may resume a postponed trial and require the accused to appear; if the accused is still incapable of making a defence the court must treat the accused as if brought before it for the first time.
Section 164. Resumption of proceedings or trial Section Wherever a trial is postponed under section 162 or section 280 , the court may at any time, subject to the provisions of section 163 , resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before if for the first time. [Act No. 5 of 2003 , s. 73.] - 165 Verify source ↗
PROVISIONS RELATING TO ALL - 165.[Repealed by ActNo. 5 of 2003, s. 74.]
Section 165 has been repealed.
Section 165.[Repealed by ActNo. 5 of 2003, s. 74.] - 166 Verify source ↗
PROVISIONS RELATING TO ALL - 166. Defence of lunacy adduced at trial
If a court finds an accused committed the act but was insane, the court must make a special finding, report the case to the President and keep the accused in custody; the President may detain, discharge, transfer or otherwise deal with the person, and specified reports must be made to the Cabinet Secretary.
Section 166. Defence of lunacy adduced at trial Section 166(1) Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission. Section 166(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct. Section 166(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody. Section 166(4) The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Cabinet Secretary for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report. Section 166(5) On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit. Section 166(6) Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Cabinet Secretary for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit. Section 166(7) The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital. [Act No. 22 of 1959 , s. 16, Act No. 13 of 1967 , 1st Sch., L.N. 124/1964.] - 167 Verify source ↗
PROVISIONS RELATING TO ALL - 167. Procedure when accused does not understand proceedings
If a subordinate court or the High Court considering evidence believes it does not justify conviction the accused must be acquitted; if it would justify conviction the court shall order detention during the President’s pleasure subject to confirmation (subordinate courts) and the President has powers over detention and discharge.
Section 167. Procedure when accused does not understand proceedings Section 167(1)(a) in cases tried by a subordinate court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the President’s pleasure; but every such order shall be subject to confirmation by the High Court; Section 167(1)(b) in cases tried by the High Court, the Court shall try the case and at the close thereof shall either acquit the accused person or, if satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the President’s pleasure. Section 167(2) A person ordered to be detained during the President’s pleasure shall be liable to be detained in such place and under such conditions as the President may from time to time by order direct, and whilst so detained shall be deemed to be in lawful custody. Section 167(3) The President may at any time of his own motion, or after receiving a report from any person or persons thereunto empowered by him, order that a person detained as provided in subsection (2) be discharged or otherwise dealt with, subject to such conditions as to the person remaining under supervision in any place or by any person, and such other conditions for ensuring the welfare of the detained person and the public, as the President thinks fit. Section 167(4) When a person has been ordered to be detained during the Presidents pleasure under paragraph (a) or paragraph (b) of subsection (1), the confirming or presiding judge shall forward to the Cabinet Secretary a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make. [Act No. 22 of 1959 , s. 16, Act No. 13 of 1967 , 1st Sch., L.N. 124/1964, Act No. 13 of 1982 , s. 4, Act No. 5 of 2003 , s. 75.] - 168 Verify source ↗
PROVISIONS RELATING TO ALL - 168. Mode of delivering judgment
Criminal courts must pronounce or explain judgments in open court and give notice if judgment is at a later time; presiding judge must read the whole judgment if requested; courts must bring or require attendance of accused except in specified cases.
Section 168. Mode of delivering judgment Section 168(1) The judgment in every trial in a criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of the judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time, of which notice shall be given to the parties and their advocates, if any: Provided that the whole judgment shall be read out by the presiding judge or magistrate if he is requested so to do either by the prosecution or the defence. *Powers delegated to the Cabinet Secretary and to the Principal Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963. Section 168(2) The accused person shall, if in custody, be brought before the court, or, if not in custody, be required by the court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of a fine only or he is acquitted. Section 168(3) No judgment delivered by a court shall be invalid by reason only of the absence of a party or his advocate on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their advocates, or any of them, the notice of the day and place. Section 168(4) Nothing in this section shall limit in any way the provisions of section 382 . - 169 Verify source ↗
PROVISIONS RELATING TO ALL - 169. Contents of judgment
Judgments must be written by or under the direction of the presiding officer in the language of the court, include the points for determination, decision and reasons, and be dated and signed by the presiding officer in open court when pronounced.
Section 169. Contents of judgment Section 169(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it. Section 169(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code ( Cap. 63 ) or other law under which, the accused person is convicted, and the punishment to which he is sentenced. Section 169(3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty. [Act No. 22 of 1959 , s. 17.] - 170 Verify source ↗
PROVISIONS RELATING TO ALL - 170. Copy of judgment, etc., to be given to accused on application
A copy of the judgment (etc.) must be given to the accused if they apply.
Section 170. Copy of judgment, etc., to be given to accused on application - 171 Verify source ↗
PROVISIONS RELATING TO ALL - 171. Power to order costs against accused or privateprosecutor
Judges of the High Court and magistrates of subordinate courts may order convicted persons to pay reasonable costs to public or private prosecutors; caps apply and orders cannot be made if the private prosecutor had reasonable grounds.
Section 171. Power to order costs against accused or privateprosecutor Section 171(1) A judge of the High Court or a magistrate of a subordinate court of the first or second class may order a person convicted before him of an offence to pay to the public or private prosecutor , as the case may be, such reasonable costs as the judge or magistrate may deem fit, in addition to any other penalty imposed. Section 171(2)(i) the costs shall not exceed twenty thousand shillings in the High Court or ten thousand shillings in the case of an acquittal or discharge by a subordinate court; and Section 171(2)(ii) no such order shall be made if the judge or magistrate considers that the private prosecutor had reasonable grounds for making his complaint . - 172 Verify source ↗
PROVISIONS RELATING TO ALL - 172. Right of appeal from order as to costs
The appellate court may award costs of an appeal from an order awarding costs under section 171; appeals lie to the High Court if made by a magistrate and to the Court of Appeal if made by a judge.
Section 172. Right of appeal from order as to costs Section An appeal shall lie from an order awarding costs under section 171 , if made by a magistrate to the High Court and if by a judge to the Court of Appeal; and the appellate court may give costs of the appeal as it shall deem reasonable. - 173 Verify source ↗
PROVISIONS RELATING TO ALL - 173.[Repealed by ActNo. 13 of 1967, s. 5.]
Section 173 has been repealed.
Section 173.[Repealed by ActNo. 13 of 1967, s. 5.] - 174 Verify source ↗
PROVISIONS RELATING TO ALL - 174. Costs and compensation to be specified in order, how recoverable
If a person ordered to pay costs fails to pay and distress under section 334 is not levied, the person shall be liable to imprisonment under the Penal Code scale, unless the costs are paid sooner; imprisonment cannot exceed three months.
Section 174. Costs and compensation to be specified in order, how recoverable Section 174(1) Sums allowed for costs awarded under section 171 shall in all cases be specified in the conviction or order. Section 174(2) If the person who has been ordered to pay costs fails so to pay, he shall, in default of distress levied in accordance with section 334 of this Code, be liable to imprisonment in accordance with the scale laid down in section 28 of the Penal Code ( Cap. 63 ), unless the costs shall be sooner paid: Provided that in no case shall the period of imprisonment imposed under this section exceed three months. [Act No. 13 of 1967 , First Sch.] - 175 Verify source ↗
PROVISIONS RELATING TO ALL - 175. Orders for compensation and expenses
Courts may order fines (or part of them) to be used to pay prosecution expenses when convicting or confirming a sentence; an appeal court must affirm, quash or vary such orders when determining the appeal.
Section 175. Orders for compensation and expenses Section 175(1)(a) on convicting a person of an offence, imposes a fine, or a sentence of which a fine forms part; or Section 175(1)(b) on appeal, revision or otherwise, confirms such a sentence, may, when passing judgment, order the whole or any part of the fine recovered to be applied in defraying expenses properly incurred in the prosecution of the offence. Section 175(2)(a) convicts a person of an offence or, on appeal, revision or otherwise, confirms the conviction; and Section 175(2)(b) finds, on the facts proven in the case, that the convicted person has, by virtue of the act constituting the offence, a civil liability to the complainant or another person (in either case referred to in this section as the "injured party"), Section 175(3)(a) so as to require payment of an amount that exceeds the amount that the court making the order is authorised by law to award or confirm as damages in civil proceedings; or Section 175(3)(b) the complexity of evidentiary matters affecting the quantum of damages; Section 175(3)(b)(i) the complexity of evidentiary matters affecting the quantum of damages; Section 175(3)(b)(ii) the insufficiency of evidence before it in relation to such damages or their quantum; Section 175(3)(b)(iii) the provisions of the Limitation of Actions Act ( Cap. 22 ); or Section 175(3)(b)(iv) any other circumstances, Section 175(4)(a) before the expiry of the time limited for appeal against the conviction or sentence in respect of which the order was made; or Section 175(4)(b) while any such conviction or sentence is the subject of appeal, unless and until the conviction or sentence, and the order, are confirmed by the court determining the appeal. Section 175(5) A court determining an appeal referred to in subsection (4) shall affirm, quash or vary an order under this section, as justice requires. Section 175(6) An order under this section that has taken effect is enforceable in the same manner as a judgment in civil proceedings for the amount awarded by the order. Section 175(7) An award by order under this section in respect of a civil liability is, to the extent of the amount awarded, a defence in any subsequent proceedings instituted in respect of that liability. [Act No. 5 of 2003 , s. 78.] - 176 Verify source ↗
PROVISIONS RELATING TO ALL - 176. Promotion of reconciliation
Promotes reconciliation.
Section 176. Promotion of reconciliation - 177 Verify source ↗
PROVISIONS RELATING TO ALL - 177. Property found on accused person
Court may order that property found on an accused person be restored to the person who appears to the court to be entitled to it, or if the accused is the person charged it may be restored to him or to another person he directs.
Section 177. Property found on accused person Section that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or - 178 Verify source ↗
PROVISIONS RELATING TO ALL - 178. Property stolen
Restitution and related court powers for property taken in offences; rules for custody and appeals are provided.
Section 178. Property stolen Section 178(1) If a person guilty of an offence mentioned in Chapters XXVI to XXXI, both inclusive, of the Penal Code ( Cap. 63 ), in stealing, taking, obtaining, extorting, converting or disposing of, or in knowingly receiving, any property, is prosecuted to conviction by or on behalf of the owner of the property, the property shall be restored to the owner or his representative. Section 178(2)(i) where goods as defined in the Sale of Goods Act ( Cap. 31 ) have been obtained by fraud or other wrongful means not amounting to stealing, the property in the goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender; Section 178(2)(ii) nothing in this section shall apply to the case of a valuable security which has been in good faith paid or discharged by a person liable to the payment thereof, or, being a negotiable instrument, has been taken or received in good faith by transfer or delivery by a person for a just and valuable consideration without notice or without reasonable cause to suspect that it has been stolen. Section 178(3) On the restitution of stolen property, if it appears to the court by the evidence that the offender has sold the stolen property to a person, and that that person has had no knowledge that it was stolen, and that moneys have been taken from the offender on his apprehension, the court may, on the application of the purchaser, order that out of those moneys a sum not exceeding the amount of the proceeds of the sale be delivered to the purchaser. Section 178(4)(a) in any case, until the time for appeal has elapsed; and Section 178(4)(b) in a case where an appeal is lodged, until the determination of the appeal, and in cases where the operation of any such order is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal. Section 178(5) The Chief Justice may make rules for securing the safe custody of property, pending the suspension of the operation of an order made under this section. Section 178(6) A person aggrieved by an order made under this section may appeal to the High Court, and upon the hearing of the appeal the court may by order annul or vary an order made on a trial for the restitution of property to any person, although the conviction is not quashed; and the order, if annulled, shall not take effect, and, if varied, shall take effect as so varied. Section 178(7) In this section and in section 177 , "property" includes, in the case of property regarding which the offence appears to have been committed, not only property which was originally in the possession or under the control of a person but also property into which or for which it may have been converted or exchanged and anything acquired by the conversion or exchange whether immediately or otherwise. [Act No. 27 of 1961 , Sch., Act No. 11 of 1970 , Sch.] - 179 Verify source ↗
PROVISIONS RELATING TO ALL - 179. When offence proved is included in offence charged
If a person is charged with an offence made up of several particulars and only some particulars that constitute a lesser offence are proved, the person may be convicted of that lesser offence even if not charged with it; likewise, if facts proved reduce the charged offence to a lesser offence, conviction for the lesser offence is permitted though not charged.
Section 179. When offence proved is included in offence charged Section 179(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. Section 179(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. - 180 Verify source ↗
PROVISIONS RELATING TO ALL - 180. Persons charged with any offence may be convicted of attempt
A person charged with an offence may be convicted of having attempted that offence even if not charged with the attempt.
Section 180. Persons charged with any offence may be convicted of attempt Section When a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt. - 181 Verify source ↗
PROVISIONS RELATING TO ALL - 181. Charges of certain offences respecting infant and unborn children, and abortion, etc.
Gives the court the power to convict a defendant of specified lesser or alternative offences (infanticide, killing an unborn child, offences under sections 158/159, or endeavouring to conceal birth) even if the defendant was not charged with those offences, subject to the factual conditions described in the section.
Section 181. Charges of certain offences respecting infant and unborn children, and abortion, etc. Section 181(1) When a woman is charged with the murder of her child, being a child under the age of twelve months, and the court is of the opinion that she by a wilful act or omission caused its death but at the time of the act or omission she had not fully recovered from the effect of giving birth to that child and that by reason thereof or by reason of the effect of lactation consequent upon the birth of the child the balance of her mind was then disturbed, she may, notwithstanding that the circumstances were such that but for the provisions of section 210 of the Penal Code ( Cap. 63 ) she might be convicted of murder, be convicted of the offence of infanticide although she was not charged with it. Section 181(2) When a person is charged with the murder or manslaughter of a child or with infanticide, or with an offence under section 158 or section 159 of the Penal Code ( Cap. 63 ) (relating to the procuring of abortion), and the court is of the opinion that he is not guilty of murder, manslaughter or infanticide or an offence under section 158 or section 159 of the Penal Code ( Cap. 63 ), but that he is guilty of the offence of killing an unborn child, he may be convicted of that offence although he was not charged with it. Section 181(3) When a person is charged with killing an unborn child and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 158 and 159 of the Penal Code ( Cap. 63 ), he may be convicted of that offence although he was not charged with it. Section 181(4) When a person is charged with the murder or infanticide of a child or with killing an unborn child and the court is of the opinion that he is not guilty of any of those offences, and if it appears in evidence that the child had recently been born and that the person did, by some secret disposition of the dead body of the child, endeavour to conceal the birth of that child, he may be convicted of the offence of endeavouring to conceal the birth of that child although he was not charged with it. - 182 Verify source ↗
PROVISIONS RELATING TO ALL - 182. Charge of manslaughter in connexion with driving of motor vehicle
If a person charged with manslaughter while driving is found not guilty of manslaughter but guilty of an offence under section 46 of the Traffic Act, the court may convict them of that section-46 offence even if they were not charged with it.
Section 182. Charge of manslaughter in connexion with driving of motor vehicle Section When a person is charged with manslaughter in connexion with the driving of a motor vehicle by him and the court is of the opinion that he is not guilty of that offence, but that he is guilty of an offence under section 46 of the Traffic Act ( Cap. 403 ), he may be convicted of that offence although he was not charged with it. [Act No. 29 of 1967 , First Sch.] - 183 Verify source ↗
PROVISIONS RELATING TO ALL - 183. Charge of administering oaths
If a person is charged under paragraph (a) of section 61 and the court finds he is not guilty of that charge but guilty of another offence under the same paragraph, the court may convict him of that other offence even though he was not charged with it.
Section 183. Charge of administering oaths Section Where a person is charged with an offence under paragraph (a) of section 61 of the Penal Code ( Cap. 63 ), and the court is of the opinion that he is not guilty of that offence but is guilty of another offence under the same paragraph, he may be convicted of that other offence although he was not charged with it. [Act No. 57 of 1955 , s. 5, Act No. 19 of 1964 , s. 2, L.N. 761/1963.] - 184 Verify source ↗
PROVISIONS RELATING TO ALL - 184.[Deleted by ActNo. 19 of 2023, Sch.]
Section 184 was deleted by Act No. 19 of 2023, Schedule.
Section 184.[Deleted by ActNo. 19 of 2023, Sch.] - 185 Verify source ↗
PROVISIONS RELATING TO ALL - 185.[Repealed by ActNo. 3 of 2006, 2nd Sch.;]
Section 185 was repealed.
Section 185.[Repealed by ActNo. 3 of 2006, 2nd Sch.;] Section With offences under the Sexual Offences Act ( Cap. 63A ). - 186 Verify source ↗
PROVISIONS RELATING TO ALL - 186.[Deleted by ActNo. 19 of 2023, Sch.]
Section 186 has been deleted.
Section 186.[Deleted by ActNo. 19 of 2023, Sch.] - 187 Verify source ↗
PROVISIONS RELATING TO ALL - 187. Charge of Burglary, etc.
If a person is charged with an offence under Chapter XXIX and the court believes they are not guilty of that offence but guilty of another offence in the same Chapter, the court may convict them of the other offence even though they were not charged with it.
Section 187. Charge of Burglary, etc. Section When a person is charged with an offence mentioned in Chapter XXIX of the Penal Code ( Cap. 63 ) and the court is of the opinion that he is not guilty of that offence but that he is guilty of another offence mentioned in that Chapter, he may be convicted of that other offence although he was not charged with it. - 188 Verify source ↗
PROVISIONS RELATING TO ALL - 188. Charge of stealing
If the facts proved amount to an offence under section 322 or 323 of the Penal Code, the person may be convicted of that offence even if he was not charged with it.
Section 188. Charge of stealing Section the facts proved amount to an offence under section 322 or section 323 of the Penal Code ( Cap. 63 ), he may be convicted of that offence although he was not charged with it; - 189 Verify source ↗
PROVISIONS RELATING TO ALL - 189. Charge of obtaining by false pretences
A person charged with obtaining property by false pretences may be convicted of stealing if it is proved they actually stole it, even if not charged with stealing.
Section 189. Charge of obtaining by false pretences Section When a person is charged with obtaining anything capable of being stolen by false pretences with intent to defraud and it is proved that he stole the thing, he may be convicted of the offence of stealing although he was not charged with it. - 190 Verify source ↗
PROVISIONS RELATING TO ALL - 190. Charge of stock theft under the Penal Code (Cap. 63)
If the court thinks a charged person is not guilty of stock theft but guilty of an offence under section 9 of the Stock and Produce Theft Act (Cap. 355), the court may convict him of that offence even though he was not charged with it.
Section 190. Charge of stock theft under the Penal Code (Cap. 63) Section When a person is charged with the offence of stock theft under the Penal Code ( Cap. 63 ) and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under section 9 of the Stock and Produce Theft Act ( Cap. 355 ), he may be convicted of that offence although he was not charged with it. [Act No. 13 of 1967 , 1st Sch.] - 191 Verify source ↗
PROVISIONS RELATING TO ALL - 191. Construction ofsections 179to 190
Heading: Construction of sections 179 to 190.
Section 191. Construction ofsections 179to 190 - 192 Verify source ↗
PROVISIONS RELATING TO ALL - 192. Person charged with misdemeanour not to be acquitted if felony proved, unless court so directs
If facts proved at a misdemeanour trial amount to a felony, the accused is not automatically acquitted of the misdemeanour; a person tried for the misdemeanour cannot later be prosecuted for a felony on the same facts unless the court directs prosecution.
Section 192. Person charged with misdemeanour not to be acquitted if felony proved, unless court so directs Section If on a trial for a misdemeanour the facts proved in evidence amount to a felony, the accused shall not be therefore acquitted of the misdemeanour; and no person tried for the misdemeanour shall be liable afterwards to be prosecuted for a felony on the same facts, unless the court thinks fit to direct that person to be prosecuted for felony, whereupon he may be dealt with as if not previously put on trial for misdemeanour. - 193 Verify source ↗
PROVISIONS RELATING TO ALL - 193. Right of accused to be defended
A person accused in a criminal court has the right to be defended by an advocate.
Section 193. Right of accused to be defended Section A person accused of an offence before a criminal court, or against whom proceedings are instituted under this Code in a criminal court, may of right be defended by an advocate. - 193A Verify source ↗
PROVISIONS RELATING TO ALL - 193A. Concurrent criminal and civil proceedings
If a matter in a criminal case is also directly or substantially in issue in pending civil proceedings, that overlap cannot be used to stay, prohibit or delay the criminal proceedings.
Section 193A. Concurrent criminal and civil proceedings Section Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. [Act No. 5 of 2003 , s. 79.] - 66 Verify source ↗
PROVISIONS RELATING TO ALL - 66. General authority of courts
Every court may require any person within its local jurisdiction who is charged with an offence connected to Kenya to be brought before it and may deal with the accused according to its jurisdiction.
Section 66. General authority of courts Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 67. Accused person to be sent to district where offence committed
If an accused who allegedly committed an offence in one province or district is found in another, the court where he is found must bring him before it and, unless authorized to proceed, either send him in custody to the court where the offence occurred or require security for his surrender.
Section 67. Accused person to be sent to district where offence committed Section 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 Verify source ↗
PROVISIONS RELATING TO ALL - 68. Removal of accused person under warrant
The court where an accused is found must issue a warrant to send the person in custody; the warrant authorises the person named to be received, detained, carried and delivered to the court where the offence was committed or may be tried, and the person to whom the warrant is directed must execute it without delay.
Section 68. Removal of accused person under warrant Section 68(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. Section 68(2) The person to whom the warrant is directed shall execute it according to its tenor without delay. [Act No. 13 of 1982 , 1st Sch.] - 69 Verify source ↗
PROVISIONS RELATING TO ALL - 69. Powers of High Court
The High Court may inquire into and try offences within its jurisdiction at any place where it can hold sittings.
Section 69. Powers of High Court Section 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 , 1st Sch., Act No. 5 of 2003 , s. 63.] - 70 Verify source ↗
PROVISIONS RELATING TO ALL - 70. Place and date of sessions of the High Court
The High Court must hold sittings for its original criminal jurisdiction at places and on days the Chief Justice directs; the Registrar must ordinarily give notice beforehand of those sittings.
Section 70. Place and date of sessions of the High Court Section 70(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. Section 70(2) The Registrar of the High Court shall ordinarily give notice beforehand of all such sittings. [Act No. 13 of 1982 , 1st Sch.] - 71 Verify source ↗
PROVISIONS RELATING TO ALL - 71. Ordinary place of inquiry and trial
Every offence must ordinarily be tried by a court within the local limits where it was committed or where the accused was apprehended, in custody on the charge, or appeared in answer to a lawful summons, subject to section 69 and transfer powers in sections 79 and 81.
Section 71. Ordinary place of inquiry and trial Section 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 , 1st Sch.] - 72 Verify source ↗
PROVISIONS RELATING TO ALL - 72. Trial at place where Act done or where consequence of offence ensues
If a person is accused of an offence arising from an act or its consequence, a court may try the offence within the local limits where the act was done or the consequence occurred.
Section 72. Trial at place where Act done or where consequence of offence ensues Section 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 , 1st Sch.] - 73 Verify source ↗
PROVISIONS RELATING TO ALL - 73. Trial where offence is connected with another offence
A court may try a charge of the first-mentioned offence within the local limits of whose jurisdiction either act was done when the offence is connected with another offence.
Section 73. Trial where offence is connected with another offence Section 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 , 1st Sch.] - 74 Verify source ↗
PROVISIONS RELATING TO ALL - 74. Trial where place of offence is uncertain
When it is uncertain in which of several local areas an offence was committed.
Section 74. Trial where place of offence is uncertain Section it is uncertain in which of several local areas an offence was committed; or - 75 Verify source ↗
PROVISIONS RELATING TO ALL - 75. Offence committed on a journey
A court may try an offence committed while the offender was performing a journey or voyage in any local limits through or into which the offender (or the person or thing affected) passed during that journey or voyage.
Section 75. Offence committed on a journey Section 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 , 1st Sch.] - 76 Verify source ↗
PROVISIONS RELATING TO ALL - 76. High Court to decide in cases of doubt
If there is doubt about which court should try an offence, the court with the doubt may report to the High Court, and the High Court must decide which court will inquire into or try the offence; the High Court's decision is final subject to an accused person being able to show lack of jurisdiction.
Section 76. High Court to decide in cases of doubt Section 76(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. Section 76(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 , 1st Sch.] - 77 Verify source ↗
PROVISIONS RELATING TO ALL - 77. Court to be open
Criminal courts are deemed open to the public, subject to subsection (2), but the presiding judge or magistrate may order at any stage of a trial that the public generally or a particular person shall not have access to or remain in the court; fines are specified for individuals and bodies corporate.
Section 77. Court to be open Section 77(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. Section 77(2)(a) any particulars calculated to lead to the identification of the victim ("a primary victim or a family victim;") ; or Section 77(2)(b) any picture of the victim ("a primary victim or a family victim;") . Section 77(3)(a) in the case of an individual, to a fine not exceeding one hundred thousand shillings; and Section 77(3)(b) in the case of a body corporate, to a fine not exceeding five hundred thousand shillings. - 77A Verify source ↗
PROVISIONS RELATING TO ALL - 77A.[Repealed by ActNo. 5 of 2003, s. 65.]
Section 77A was repealed.
Section 77A.[Repealed by ActNo. 5 of 2003, s. 65.] - 78 Verify source ↗
PROVISIONS RELATING TO ALL - 78. Transfer of case where offence committed outside jurisdiction
A court that lacks jurisdiction may transfer a case to the competent court; if custody is required the transferring court must arrange transfer by police, issue a warrant and pass documents; if not in custody the court must inform the accused.
Section 78. Transfer of case where offence committed outside jurisdiction Section 78(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. Section 78(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. Section 78(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 Verify source ↗
PROVISIONS RELATING TO ALL - 79. Transfer of cases between magistrates
A magistrate may transfer a case he has taken cognizance of to a subordinate court magistrate empowered to try that case within the local limits of a first class subordinate court's jurisdiction.
Section 79. Transfer of cases between magistrates Section 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 - 80 Verify source ↗
PROVISIONS RELATING TO ALL - 80. Transfer of part-heard cases
If evidence during a magistrate's trial suggests the case should be tried by another magistrate, the magistrate must stay proceedings and submit the case with a brief report to a magistrate of a first class subordinate court empowered to direct transfer under section 79.
Section 80. Transfer of part-heard cases Section 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 , 1st Sch., Act No. 5 of 2003 , s. 67.] - 81 Verify source ↗
PROVISIONS RELATING TO ALL - 81. Power of High Court to change venue
The High Court has power to change the venue of criminal proceedings on specified grounds; an accused who applies must give written notice to the Director of Public Prosecutions at least twenty-four hours before the hearing, and the High Court may require a bond if the accused applies.
Section 81. Power of High Court to change venue Section 81(1)(a) that a fair and impartial trial cannot be had in any criminal court subordinate thereto; or Section 81(1)(b) that some question of law of unusual difficulty is likely to arise; or Section 81(1)(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or Section 81(1)(d) that an order under this section will tend to the general convenience of the parties or witnesses; or Section 81(1)(e) that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence; Section 81(1)(e)(i) that an offence be tried by a court not empowered under the preceding sections of this Part but in other respects competent to try the offence; Section 81(1)(e)(ii) that a particular criminal case or class of cases be transferred from a criminal court subordinate to its authority to any other criminal court of equal or superior jurisdiction; Section 81(1)(e)(iii) that an accused person be committed for trial to itself. Section 81(2) The High Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative. Section 81(3) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Director of Public Prosecutions, be supported by affidavit. Section 81(4) An accused person making any such application shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of notice and the hearing of the application. Section 81(5) When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor . [Act No. 13 of 1982 , 1st Sch., Act No. 12 of 2012 , Sch.] - 82 Verify source ↗
PROVISIONS RELATING TO ALL - 82. Power of Director of Public Prosecutions to enternolle prosequi
The Director of Public Prosecutions may enter a nolle prosequi in any criminal case before verdict or judgment; if the accused is not before the court when this is entered, the registrar or clerk must promptly notify the prison keeper in writing.
Section 82. Power of Director of Public Prosecutions to enternolle prosequi Section 82(1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi , either by stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances 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. Section 82(2) If the accused is not before the court when a nolle prosequi is entered, the registrar or clerk of the court shall forthwith cause notice in writing of the entry of the nolle prosequi to be given to the keeper of the prison in which the accused may be detained. [Act No. 13 of 1967 , 1st Sch., Act No. 13 of 1982 , First Sch., Act No. 5 of 2003 , s. 68, Act No. 12 of 2012 , Sch.] - 83 Verify source ↗
PROVISIONS RELATING TO ALL - 83. Delegation of powers by Director of Public Prosecution
The Director of Public Prosecutions may in writing delegate powers from sections 81, 82 and Part VIII to specified prosecution officers, and may in writing revoke such an order.
Section 83. Delegation of powers by Director of Public Prosecution Section 83(1) 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 Secretary of Prosecution Services, the Deputy Director of Public Prosecutions, the Senior Assistant Director of Public Prosecutions, Assistant Director of Public Prosecutions, the Senior Principal Prosecutions Counsel, Principal Prosecution Counsel, the Senior Prosecution Counsel and Prosecution Counsel, and the exercise of those powers by the specified officers shall then operate as if they had been exercised by the Director of Public Prosecutions. Section 83(2) 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, Act No. 19 of 2023 , Sch.] - 84 Verify source ↗
PROVISIONS RELATING TO ALL - 84.[Repealed by ActNo. 5 of 2003, s. 69.]
Section 84 has been repealed by Act No. 5 of 2003, s. 69.
Section 84.[Repealed by ActNo. 5 of 2003, s. 69.]
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