Kenya Act or statute

Parliament of Kenya

Privileges and Immunities Act

Jurisdiction: Kenya
Structure: 18 provisions
Citation: Cap. 179
Dates: As at 31 Dec 2022

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Dates: As at 31 Dec 2022

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“This Act may be cited as the Privileges and Immunities Act.”

This Act may be cited as the Privileges and Immunities Act. Section 2 provides definitions used in the Act, including definitions for "Commonwealth country", "consular officer", "consular post", "diplomatic agent", "the Cabinet Secretary", and several terms in the First and Second Schedules. This section replaces prior written law or rules on the same matters. Section 4 gives the First Schedule (the Vienna Convention articles) the force of law in Kenya and sets how specific Articles and expressions in that Schedule are to be construed, including deeming rules and that the Cabinet Secretary may specify the extent of immunities and privileges by order. Subject to sections 6(2) and 15, the Articles in the Second Schedule (parts of the Vienna Convention on Consular Relations) have the force of law in Kenya and are to be construed according to the provisions of this section.

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PRELIMINARY - 1. Short title.

This Act may be cited as the Privileges and Immunities Act.

Section 1

CONSULAR RELATIONS - 5. Application of Convention

Subject to sections 6(2) and 15, the Articles in the Second Schedule (parts of the Vienna Convention on Consular Relations) have the force of law in Kenya and are to be construed according to the provisions of this section.

Section 5

INTERNATIONAL ORGANIZATIONS,ETC. - 11. Technical assistance,etc., agencies

The Cabinet Secretary must, by notice in the Gazette, specify the persons entitled to immunities and privileges when such immunities and privileges are conferred by an order under subsection (1).

Section 11

INTERNATIONAL ORGANIZATIONS,ETC. - 9A. The International Criminal Court

Judges, officials and staff of the International Criminal Court and specified persons present at its seat are entitled to the privileges and immunities in article 48 of the Rome Statute and the contemplated agreement.

Section 9A

GENERAL - 17. Making of orders

An order made under this Act must be laid before Parliament without unreasonable delay; if Parliament passes a resolution within twenty days on which it next sits annulling the order, the order becomes void from then on, but actions previously taken under it…

Section 17

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Showing 18 of 18 provisions

Provision 13Commencement 2Short titleInterpretation

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short title.Short title

This Act may be cited as the Privileges and Immunities Act.

Section 1. Short title. Section This Act may be cited as the Privileges and Immunities Act.

Section 1Verify source

§ 2PRELIMINARY - 2. Interpretation.Interpretation

Section 2 provides definitions used in the Act, including definitions for "Commonwealth country", "consular officer", "consular post", "diplomatic agent", "the Cabinet Secretary", and several terms in the First and Second Schedules.

Section 2. Interpretation. Section 2(1) In this Act, unless the context otherwise requires— "Commonwealth country" means any country to which, for the time being, section 95 of the Constitution applies; "consular officer" means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions and any person in the service of the Government of a Commonwealth country performing any such functions; "consular post" means any consulate-general, consulate, vice-consulate or consular agency; "diplomatic agent" has the meaning assigned to it in Article 1 in the First Schedule to this Act; "the Cabinet Secretary" means the Cabinet Secretary for the time being responsible for foreign affairs. Section 2(2) In the Articles set out in the First and Second Schedules to this Act— "agent of the receiving State" or "authorities of the receiving State" shall be construed as including a police officer and any person exercising a power of entry to any premises under any written law; "grave crime" shall be construed as meaning any offence punishable (on a first conviction) with imprisonment for a term that may extend to five years or with a more severe sentence; "Ministry for Foreign Affairs or such other ministry as may be agreed" shall be construed as meaning the Ministry of the Cabinet Secretary; "national of the receiving State" shall be construed as meaning citizen of Kenya. [L.N. 22/1984, Sch.]

Section 2Verify source

Part II

DIPLOMATIC RELATIONS

§ 3DIPLOMATIC RELATIONS - 3. Replacement of existing lawSubstitution

This section replaces prior written law or rules on the same matters.

Section 3. Replacement of existing law Section The following provisions of this Part shall, with respect to the matters dealt with therein, have effect in substitution for any previous written law or rule of law.

Section 3Verify source

§ 4DIPLOMATIC RELATIONS - 4. Application of ConventionProvision

Section 4 gives the First Schedule (the Vienna Convention articles) the force of law in Kenya and sets how specific Articles and expressions in that Schedule are to be construed, including deeming rules and that the Cabinet Secretary may specify the extent of immunities and privileges by order.

Section 4. Application of Convention Section 4(1) Subject to section 15 of this Act, the Articles set out in the First Schedule to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in Kenya and shall for that purpose be construed in accordance with the following provisions of this section. Section 4(2) For the purposes of Article 32 a waiver by the head of the mission of any State or any person for the time being performing his functions shall be deemed to be a waiver by that State. Section 4(3) Articles 35, 36 and 40 shall be construed as granting any immunity or privilege which they require to be granted. Section 4(4) The references in Articles 37 and 38 to the extent to which any immunities and privileges are admitted by the receiving State and to additional immunities and privileges that may be granted by the receiving State shall be construed as referring respectively to the extent to which any immunities or privileges are specified by the Cabinet Secretary by order and to any additional immunities and privileges that may be so specified. Section 4(5) In its application to the immunity granted by paragraphs (2), (3) and (4) of Article 37 of the First Schedule the expression "permanently resident" in Article 38 of the said Schedule shall be deemed to extend to any individual other than one who is resident in Kenya solely for the purpose of performing the duties of his office for a mission.

Section 4Verify source

Part III

CONSULAR RELATIONS

§ 5CONSULAR RELATIONS - 5. Application of ConventionProvision

Section 5. Application of Convention Section 5(1) Subject to sections 6 (2) and 15 of this Act, the Articles set out in the Second Schedule to this Act (being Articles or parts of Articles of the Vienna Convention on Consular Relations signed in 1963) shall have the force of law in Kenya and shall for that purpose be construed in accordance with the following provisions of this section. Section 5(2) The reference in paragraph 2 of Article 17 to any immunities and privileges accorded by customary international law or by international agreements shall be construed as a reference to any immunities and privileges conferred under Part IV of this Act. Section 5(3) The references in Article 44 to matters connected with the exercise of the functions of members of a consular post shall be construed as matters connected with the exercise of consular functions by consular officers or consular employees. Section 5(4) For the purposes of Article 45 and that Article as applied by Article 58, a waiver shall be deemed to have been expressed by a State if it has been expressed by the head, or any person for the time being performing the functions of head, of the diplomatic mission of that State or, if there is no such mission, of the consular post concerned. Section 5(5) Articles 50, 51, 52, 54, 62 and 67 shall be construed as granting any immunity or privilege which they require to be granted. Section 5(6) The reference in Article 57 to the immunities and privileges provided in Chapter II shall be construed as referring to those provided in Section II of that Chapter. Section 5(7) The reference in Article 70 to the rules of international law concerning diplomatic relations shall be construed as a reference to the provisions of Part II of, and Schedule I to, this Act. Section 5(8) The reference in Article 71 to additional immunities and privileges that may be granted by the receiving State or to immunities and privileges so far as these are granted by the receiving State shall be construed as referring to such immu- nities and privileges as may be specified by the Cabinet Secretary by order. Section 5(9) In its application to the immunity granted by Article 49 of the Second Schedule the expression "permanently resident" in Article 71 of the said Schedule shall be deemed to extend to any individual other than one who is resident in Kenya solely for the purpose of performing the duties of his office for a consular post.

Section 5Verify source

§ 6CONSULAR RELATIONS - 6. AgreementsCommencement

The Cabinet Secretary may, by order, (1) exercise the Third Schedule powers to give effect to foreign agreements granting consular immunities and privileges beyond this Act, and (2) provide by order to exclude any immunities or privileges not covered by such agreements.

Section 6. Agreements Section 6(1) Where any agreement made, whether before or after the commencement of this Act, between Kenya and any other State provides for according to consular posts and persons connected with them immunities and privileges not accorded to them by the other provisions of this Act, the Cabinet Secretary may, by order, exercise, with respect to the consular posts of that State and persons connected with them, the powers specified in the Third Schedule to this Act so far as may be necessary to give effect to that agreement. Section 6(2) Where any agreement made, whether before or after the commencement of this Act, between Kenya and any other State provides for according to consular posts and persons connected with them some but not all of the immunities and privileges accorded to them by the other provisions of this Act, the Cabinet Secretary may, by order, provide for excluding, with respect to consular posts of that State and persons connected with them, any of the immunities and privileges which are not provided for by that agreement.

Section 6Verify source

§ 7CONSULAR RELATIONS - 7. Commonwealth representativesProvision

Section 7 grants immunities and privileges under this Part to certain Commonwealth representatives and their staff, and allows recognized chief/state representatives to waive those immunities.

Section 7. Commonwealth representatives Section 7(1)(a) on persons in the service of the Government of a Commonwealth country holding such offices or class of offices as may be specified in the order, being offices or classes of offices which appear to the Cabinet Secretary to involve the performance of duties substantially corresponding to those which, in the case of a foreign sovereign power, would be performed by a consular officer; Section 7(1)(b) on a person for the time being recognized by the Government of Kenya as the chief representative of any state or province of a Commonwealth country (in this section referred to as a state representative); Section 7(1)(c) on members of the staff of any such person as is mentioned in paragraph (a) or paragraph (b) of this subsection, any immunities or privileges which are conferred by or may be conferred under this Part, and any such order may provide for extending, in relation to premises, official archives, communications, documents and personal property of persons on whom any immunities and privileges are or may be conferred under this section, and in relation to any fees and charges levied by them, the provisions of Articles 31, 32, 33, 35, 39 and 51 in the Second Schedule to this Act. Section 7(2) An order under subsection (1) of this section may exclude from any immunities and privileges conferred by it persons who are permanently resident in Kenya, or who are citizens of Kenya, or any class of such persons. Section 7(3)(a) a person for the time being recognized by the Government of Kenya as the chief representative in Kenya of a Commonwealth country may waive any immunity conferred under this section on a person in the service of the Government of the country which he represents; Section 7(3)(b) a state representative may waive any immunity conferred under this section on himself or on a member of his staff.

Section 7Verify source

§ 8CONSULAR RELATIONS - 8. Power of consular officer in relation to property of deceased personsCommencement

If a foreign national who has interests in property in Kenya is not resident and a consular officer applies, the court must grant representation to that officer (unless a duly authorized agent applies); the court may postpone the grant; a consular officer has the right and power to receive and discharge certain estate money or property in Kenya.

Section 8. Power of consular officer in relation to property of deceased persons Section 8(1) Where any person who is a national of a foreign State is named as executor in the will of a deceased person disposing of property in Kenya, or is otherwise a person to whom a grant of representation to the estate in Kenya of a deceased person may be made, then if the court is satisfied, on the application of a consular officer of the said State, that the said national is not resident in Kenya, and if no application for a grant of such representation is made by a person duly authorized by power of attorney to act for such national in that behalf, the court shall make to that officer any such grant of representation to the estate of the deceased as would be made to him if he were so authorized as aforesaid: Provided that the court may, if it thinks fit, postpone the making of such grant during such period as the court considers appropriate having regard to all the circumstances of the case. Section 8(2)(a) is entitled to payment or delivery of any money or property in respect of any interest in the estate of a deceased person, or vesting in possession on the death of any person, or is entitled to payment of any money becoming due on the death of any person; or Section 8(2)(b) is a person to whom any money or property comprised in the estate of a deceased person may be paid or delivered in pursuance of any written law, whether passed or made before or after the commencement of this Act, authorizing the payment or delivery of such money or property without representation to the estate of the deceased being granted, then, if the said national is not resident in Kenya, a consular officer of that State shall have the like right and power to receive and give a valid discharge for any such money or property in Kenya as if he were duly authorized by power of attorney to act for such national in that behalf: Section 8(3) A grant of administration made by virtue of this section may be made to the consular officer concerned by his official title and to his successors in office, and when a grant is so made the office of administrator, and all the estate, rights, duties and liabilities of the administrator (including liabilities under the administration bond), shall be vested in and imposed on the person for the time being holding the office, and no fresh grant shall be required by reason only of the death or vacation of office of the person to whom the grant was made, or in whom it is vested as aforesaid: Provided that nothing in this subsection shall affect any limitation contained in the grant or any power of the court to revoke the grant. Section 8(4) No sureties shall be required to an administration bond given by a consular officer upon the grant to him of administration by virtue of this section. Section 8(5) Notwithstanding any other provision of this Part conferring immunity or privilege in respect of the official acts and documents of consular officers, a consular officer shall not be entitled to any immunity or privilege in respect of any act done by virtue of powers conferred on him by or under this section or in respect of any document for the time being in his possession in relation thereto.

Section 8Verify source

Part IV

INTERNATIONAL ORGANIZATIONS,ETC.

§ 10INTERNATIONAL ORGANIZATIONS,ETC. - 10. Representatives at international conferencesProvision

The Cabinet Secretary may, by notice in the Gazette, specify persons and the Articles in the First Schedule that will apply to representatives of other States and their official staff when doubts arise about their diplomatic immunities and privileges.

Section 10. Representatives at international conferences Section Where a conference is held in Kenya and is attended by the representatives of the Government of Kenya and of the government or governments of one or more other States, and it appears to the Cabinet Secretary that doubts may arise as to the extent to which the representatives of such other States and members' of their official staffs are entitled to diplomatic immunities and privileges, he may, by notice in the Gazette , specify the persons aforesaid and the Articles set out in the First Schedule to this Act which shall apply to them, and, for the purposes of those Articles, every representative of a State who is for the time being specified in such a notice shall be deemed to be a head of the mission and such of his official staff as are for the time being included in the notice shall be deemed to be members of the diplomatic staff.

Section 10Verify source

§ 11INTERNATIONAL ORGANIZATIONS,ETC. - 11. Technical assistance,etc., agenciesProvision

The Cabinet Secretary must, by notice in the Gazette, specify the persons entitled to immunities and privileges when such immunities and privileges are conferred by an order under subsection (1).

Section 11. Technical assistance,etc., agencies Section 11(1)(a) declare that such agency is one to which this section applies; Section 11(1)(b) provide that, to such extent as may be specified in the order, such agency shall have the immunities and privileges set out in Part I of the Fourth Schedule to this Act; Section 11(1)(c) confer upon such classes of officers and servants of such agency as may be specified in the order, to such extent as may be so specified, the immunities and privileges set out in Part III of the said Fourth Schedule, and for the purposes of any such order references in the said Fourth Schedule to the organization shall be construed as references to the external agency named in the order. Section 11(2) An order under subsection (1) of this section shall be so framed as to secure that there are not conferred on any person any immunities or privileges greater in extent than those which are required to be conferred on that person by the agreement concerned and that no immunity or privilege is conferred on any person who is a citizen of, or permanently resident in, Kenya. Section 11(3) Where immunities and privileges are conferred upon any person by an order under subsection (1) of this section, the Cabinet Secretary shall, by notice in the Gazette , specify the persons who are for the time being entitled to such immunities and privileges. Section 11(4)(a) the government of a foreign State; Section 11(4)(b) any recognized agency of such a government; Section 11(4)(c) any internationally recognized foundation or other body.

Section 11Verify source

§ 12INTERNATIONAL ORGANIZATIONS,ETC. - 12. Modification in respect of the United Nations OrganizationProvision

References to the governing body or any committee of the United Nations Organization are to be read as references to the General Assembly or any council or other organ of the United Nations Organization.

Section 12. Modification in respect of the United Nations Organization Section any reference to the governing body or any committee of the organization shall be construed as referring to the General Assembly or any council or other organ of the United Nations Organization; and

Section 12Verify source

§ 13INTERNATIONAL ORGANIZATIONS,ETC. - 13. Reciprocal treatmentProvision

The Cabinet Secretary may refuse or withdraw immunities and privileges from nationals or representatives of a State if that State fails to give corresponding treatment to Kenyans.

Section 13. Reciprocal treatment Section Notwithstanding the foregoing provisions of this Part, the Cabinet Secretary may decline to accord immunities and privileges to, or may withdraw immunities and privileges from, nationals or representatives of any State on the ground that such State is failing to accord corresponding immunities and privileges to citizens or representatives of Kenya.

Section 13Verify source

§ 9INTERNATIONAL ORGANIZATIONS,ETC. - 9. Privileges,etc., of certain international organizations and persons connected therewithProvision

Allows the Cabinet Secretary to declare certain international organizations by order and to specify the extent of immunities, privileges and capacities conferred on the organization and various classes of persons connected with it; requires such orders to be framed so that immunities do not exceed those required by international agreement and to avoid conferring immunity as a representative of the Government of Kenya.

Section 9. Privileges,etc., of certain international organizations and persons connected therewith Section 9(1) This section shall apply to any organization which the Cabinet Secretary may, by order, declare to be an organization of which Kenya, or the Government, and one or more foreign sovereign powers, or the government or governments thereof, are members. Section 9(2)(a) provide that any organization to which this section applies (hereinafter referred to as the organization) shall, to such extent as may be specified in the order, have the immunities and privileges set out in Part I of the Fourth Schedule to this Act, and shall also have the legal capacities of a body corporate; Section 9(2)(b) any persons who are representatives (whether of governments or not) on any organ of the organization or are members of any committee of the organization or of an organ thereof; Section 9(2)(b)(i) any persons who are representatives (whether of governments or not) on any organ of the organization or are members of any committee of the organization or of an organ thereof; Section 9(2)(b)(ii) such number of officers of the organization as may be specified in the order, being the holders of such high offices in the organization as may be so specified; and Section 9(2)(b)(iii) such persons employed on missions on behalf of the organization as may be so specified, to such extent as may be specified in the order, the immunities and privileges set out in Part II of the said Fourth Schedule; Section 9(2)(c) confer upon such other classes of officers and servants of the organization as may be specified in the order, to such extent as may be so specified, the immunities and privileges set out in Part III of the said Fourth Schedule, and Part IV of the said Fourth Schedule shall have effect for the purpose of extending to the staffs of such representatives and members as are mentioned in subparagraph (i) of paragraph (b) of this subsection, and to the families of officers of the organization, any immunities and privileges conferred on the representatives, members or officers under that paragraph, except in so far as the operation of the said Part IV is excluded by the order conferring the immunities and privileges. Section 9(3) An order under subsection (2) of this section shall be so framed as to secure that there are not conferred upon any person any immunities or privileges greater in extent than those which, at the time of the making of the order, are required to be conferred on that person in order to give effect to any international agreement in that behalf and that no immunity or privilege is conferred upon any person as the representative of the Government of Kenya or as a member of the staff of such representative. Section 9(4)(a) shall specify the persons entitled to immunities and privileges conferred under paragraph (b) of that subsection; and Section 9(4)(b) may specify the persons entitled to immunities and privileges conferred under paragraph (c) of that sub-section.

Section 9Verify source

§ 9AINTERNATIONAL ORGANIZATIONS,ETC. - 9A. The International Criminal CourtProvision

Section 9A. The International Criminal Court Section The judges, officials and staff of the International Criminal Court, and any counsel, experts, witnesses and other persons required to be present at the seat of that Court, shall have the privileges and immunities set out in article 48 of the Rome Statute and the agreement on privileges and immunities contemplated in that article. [Act No. 16 of 2008 , s. 174.]

Section 9AVerify source

Part V

GENERAL

§ 14GENERAL - 14. Oaths and notarial actsProvision

Section heading and fragment stating: "Section 14. Oaths and notarial acts Section required by any person for use in that State or under the laws thereof; or"

Section 14. Oaths and notarial acts Section required by any person for use in that State or under the laws thereof; or

Section 14Verify source

§ 15GENERAL - 15. Restriction of immunities, privileges or powersProvision

The Cabinet Secretary may, by order, withdraw immunities, privileges or powers granted by this Act from a foreign diplomatic mission, consular post, or persons connected with them if those immunities, privileges or powers afforded to Kenya's mission in that state are less.

Section 15. Restriction of immunities, privileges or powers Section If it appears to the Cabinet Secretary that the immunities, privileges or powers accorded to a diplomatic mission or consular post of Kenya in the territory of any state, or to persons connected with that mission or post, are less than those accorded by this Act to the diplomatic mission or consular post of that State, or to the persons connected therewith, the Cabinet Secretary may, by order, withdraw such of the immunities, privileges or powers accorded by this Act from the diplomatic mission or consular post of that State, or from such persons connected therewith, as appears to the Cabinet Secretary to be proper.

Section 15Verify source

§ 16GENERAL - 16. EvidenceProvision

A certificate given by the Cabinet Secretary stating a fact about entitlement to immunity, privilege or power under this Act is conclusive evidence of that fact.

Section 16. Evidence Section If in any proceedings any question arises whether or not any person is entitled to the benefit of any immunity or privilege, or to exercise any power, under this Act, a certificate given by the Cabinet Secretary stating any fact relating to that question shall be conclusive evidence of that fact, and any such certificate purporting to be signed by the Cabinet Secretary shall be presumed to have been signed by him until the contrary is proved.

Section 16Verify source

§ 17GENERAL - 17. Making of ordersProvision

Section 17. Making of orders Section Any order made under this Act shall, unless a draft thereof has been laid before Parliament and approved by resolution before the making thereof, be laid before Parliament without unreasonable delay, and, if a resolution is passed by Parliament within twenty days on which Parliament next sits after such order is laid before it that the order be annulled, it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the making of any new order.

Section 17Verify source

Legislative relationships

3 referenced instruments

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A–F

3 instruments

Convention Section 4(1) Subject to section 15 of this Act
Section 4
Convention Section 5(1) Subject to sections 6 (2) and 15 of this Act
Section 5
Fourth Schedule to this Act
Sections 9, 11

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