Narcotic Drugs and Psychotropic Substances (Control) Act

This Act may be cited as the Narcotic Drugs and Psychotropic Substances (Control) Act.

Lists and defines acts and activities related to illegal manufacture, cultivation, trafficking, handling, financing, abetting, and relevant international conventions concerning narcotic drugs and psychotropic substances.

An intermediate lessee who did not consent, cooperate with, or assist in cultivation by a convicted sub-lessee may apply to the convicting court, before forfeiture is ordered and before the hearing date in the section 9 notice, to be allowed to possess the land under the lease; if the court is satisfied and subject to subsection (3) the intermediate lessee's interests will revert to them and they may enforce the order, while the convicted person may not remove prohibited plants or claim compensation; the Commissioner or Chief Land Registrar shall take possession on behalf of the Government and may remove persons and use reasonable force.

Allows entry in relation to Government land when any prohibited plant was or is being cultivated on that land or when any prohibited plant is present on that land.

Courts must order police (or officers authorized by the Inspector General) to destroy prohibited plants found on land related to a conviction, and the Inspector General or authorized officers must cause or carry out destruction in the manner prescribed by regulations; police or authorized persons who, on entry and inspection under section 11, are satisfied plants are prohibited must destroy them in the prescribed manner.

Contravening subsections (1) or (2) is an offence punishable by a fine of not less than two hundred and fifty thousand shillings, or imprisonment for a term not exceeding ten years, or both.

A person who, while being treated and already supplied narcotic drugs or psychotropic substances by a treating practitioner, obtains additional such drugs or a prescription from another practitioner without disclosing the earlier supply commits an offence and faces a fine of not less than fifty thousand shillings and up to ten years' imprisonment.

If a medical practitioner, dentist or veterinary surgeon is convicted of an offence under this Act, they shall have their name removed from the register of those licensed or registered to practise within Kenya in that profession.

The Board is established with specified members and has the power to issue licences for import/export and to prescribe ports, packing, and records for narcotic drugs and psychotropic substances.

Prohibits delaying or obstructing a police officer or a person authorized by the Inspector General of Police, the Director of Medical Services or other authorized person in the exercise of their functions under this Act.

Law enforcement officers or public officers who aid, abet, conceal, collude with, or (by abusing office) direct arbitrary acts prejudicial to others commit offences carrying heavy fines and long imprisonment terms.

If "he" fails or refuses to comply with any obligation to give information or to produce any book, record or other document, thing or other material to which he is subject under or by virtue of any provision of this Act or any order made thereunder, a penalty is provided.

Possession of narcotic drugs or psychotropic substances is an offence, subject to specified exceptions and penalties.

Possession of between 1—100 grams carries a fine of not less than thirty million shillings, or imprisonment for thirty years, or both.

Section 4A prohibits manufacture, possession, transport or supply of substances in the Fourth Schedule for purposes of producing narcotic drugs or psychotropic substances (including where the person knows or has reasonable grounds to suspect such use); and authorizes requirements on documentation, adding or deleting schedule substances, record-keeping and information furnishing, and other prescribed matters.

Conspiring to commit offences under this Act is treated as conspiracy in Kenya regardless of whether conspirators are inside or outside Kenya; conspiring in Kenya is an offence punishable on conviction by at least one hundred million shillings and life imprisonment.

Section 5 prohibits persons from smoking, inhaling, sniffing or otherwise using narcotic drugs or psychotropic substances, being found in places used for that purpose without lawful excuse, permitting premises to be used for those purposes, and handling parcels believed to contain such drugs; it prescribes fines and imprisonment for these offences.

Owners, occupiers or persons managing premises must keep a register and a separate book with prescribed particulars; failure or making false entries is an offence punishable by at least one million shillings or at least two years' imprisonment, or both.

Operating a clandestine laboratory, or permitting premises to be used for that purpose, is an offence punishable by a minimum fine of twenty million shillings or imprisonment for not less than twenty years, or both.

Penalty for cultivation of certain plants: "Section cultivates any prohibited plant; or"

If someone is convicted for cultivating prohibited plants on Government land and they hold a lease or similar right, the court must order that right to revert to the Government; bona fide mortgage or charge holders may still enforce their security.

A person with any interest in land who knows a prohibited plant is being cultivated there or that the land is being prepared to cultivate such a plant must promptly inform the officer in charge of the nearest police station; otherwise the burden of proving the person did not consent, co-operate with or assist in the cultivation is on that person.

Requires publication of a notice listing particulars about the convicted person, the land, other offence particulars, the hearing date under section 7, owners/intermediate lessees/other rights-holders or persons in possession, and other particulars prescribed by regulations or rules of court.

Forfeiture of narcotic drugs, etc.

Machinery, equipment, implements, pipes, utensils or other articles used to commit any offence under this Act shall be forfeited to the Government.

Section 21 defines which offences are included for this Part: offences under sections 3, 4 and 5 and any other offence the Cabinet Secretary specifies; conspiracy, attempt, incitement, and aiding/abetting/counselling/procuring such offences; and it treats an 'accused person' as including a defendant in a complaint under the Act.

The Director of Public Prosecutions may apply to the Court for a restraint order over any property of a person when there are reasonable grounds to believe the person committed a specified offence and an investigation has commenced.

Transfers of property by a person who is subject to an application under section 22 are void while that application is pending, though the Court may order the provision to continue when an appeal is pending after dismissal.

The Court may direct the respondent to submit, within a Court-allowed time, a statement of all his assets and liabilities.

A copy of an application for a restraint order must be served on the respondent as if it were a notice of motion; the Court must give the respondent a reasonable opportunity to be heard before a final order and may make interlocutory orders and, pending a decision under section 22, may attach the respondent's movable property.

Section 26 imposes restraint orders that prohibit disposing of specified property, requires possession to be handed to the Official Receiver, empowers the Official Receiver to recover property (using force if necessary), directs the Official Receiver to manage the property under court directions, and prohibits banks from paying out funds from accounts in the respondent's name.

An order made under section 26 must be served on the respondent and published in at least one newspaper circulating in Kenya and in the Gazette; if the property is situated outside Kenya on the date of the order, it must also be published in at least one newspaper circulating in that country.

When a court has made a restraint order over property, transfers or interests in that property during the period the restraint order is in force are void.

A restraint order remains in force until it is revoked by the Court or the property is forfeited to the Government.

A person served with an order under section 26 who, while it is in force, contravenes or fails to comply with the order is guilty of an offence and may be imprisoned for up to ten years.

The Official Receiver is not personally liable for certain statutory charges on property taken under a restraint order (except to the extent of rents and profits received) and is entitled to receive fees for managing such property equivalent to bankruptcy trustee fees under the Insolvency Act (Cap. 53).

People with title or an interest in property subject to a restraint order may apply to the Court (within 30 days) to have that property excluded; the Court may exclude it if satisfied the applicant has title, but must not make such an order if there are reasonable grounds to believe the applicant was involved in the specified offence. The Court may also entertain late applications if satisfied there are sufficient reasons, and subsection (4) sets conditions relating to complaints or information laid and a six‑month period.

The Court may stay the hearing of an application made under section 22 until a final decision is made; the stay may be on application by the Director of Public Prosecutions or the respondent, or otherwise.

If a person subject to a restraint order dies before final determination of the related proceedings, any of his legal representatives may apply to the Court within sixty days of his death to revoke or vary the restraint order; the Court may, if satisfied the person committed the offence, make orders under section 42 with specified sections applying mutatis mutandis, or in other cases may revoke the restraint order.

Title: Variation of restraint order.

If any person commits a specified offence, all property they owned at the time of the offence or acquired after shall be forfeited to the Government.

Section 36 does not affect liabilities of a mortgage or charge created before the commission of the specified offence if it was created bona fide and for valuable consideration.

Section 38 provides for maintenance payable from property placed at the disposal of the Official Receiver to the wife (if living) and any minor children, directs the Court to consider property released under section 40 when valuing that property, allows the Court to vary decisions on application, and requires forfeiture to the Government when maintenance ceases.

Allows a person owed money to apply to the Court to have property forfeited and used to pay those moneys within thirty days of notice publication.

If the Court is satisfied the applicant acquired property by a manner listed in subsection (1), the Court must, subject to any terms and conditions it specifies, exclude that property from forfeiture under section 36.

Courts other than the High Court must report convictions for specified offences to the High Court; the High Court (or the Court on application) must publish notices in a newspaper and the Gazette about convictions or applications and the rights to apply for relief; the Director of Public Prosecutions may apply to recover forfeiture under section 36.

When an order relates to immovable property forfeited to the Government, the Commissioner of Lands or Chief Land Registrar must note the order and annotate the land records as necessary.

A forfeiture order makes listed mortgages unenforceable, vests forfeited property in the Government (subject to specified charges), requires possession to be handed to a specified officer on production of a certified copy, and requires land records to be annotated on production of a certified copy.

Anyone who contravenes section 43(3) commits an offence and is liable to a fine at least equal to the value of the property not handed over, and to imprisonment for one year.

If a person's conviction for a specified offence is set aside on appeal, that person may apply to the Court to have forfeited property restored; the Court may, after giving notice to the Director of Public Prosecutions, after hearing the applicant and the Director of Public Prosecutions and after receiving and considering any necessary evidence, make such order as it thinks proper and just.

The Government of Kenya may enter into arrangements with other countries to recover, trace, preserve and hand over property in that country that has been ordered forfeited under section 42 or is linked to a suspected offence under this Act.

The Government of Kenya may enter into reciprocal arrangements with other countries for recovering or tracing property in Kenya and handing it over to that country.

Proceedings under this Part are treated as civil proceedings; the practice and procedure of the Court (or any other court) in matters under this Part is governed by regulations made by the Attorney-General and by rules of court subject to those regulations.

Section 49 is repealed.

The provisions in this Part are additional to, and not in derogation of, Parts II and III concerning forfeiture of land, narcotic drugs and psychotropic substances, conveyances, or any other article or thing.

Defines terms: "Centre", "Council", "Fund", and "Minister" for this Part.

The Cabinet Secretary may establish rehabilitation centres as he thinks fit to care for, treat and rehabilitate persons addicted to narcotic drugs or psychotropic substances.

The Cabinet Secretary must establish a special fund called the Rehabilitation Fund.

The Fund shall be administered by a Board made up of the Principal Secretary to the National Treasury and two other persons appointed by the Cabinet Secretary responsible for finance, one of whom shall be Chairperson; the Board may, with the Cabinet Secretary's approval, invest or deposit Fund moneys and credit interest to the Fund.

The section allows conditions on the use of any expenditure authorized by the Board and states those conditions may include reasonable prohibitions, restrictions or requirements on such use or expenditure.

The Cabinet Secretary must appoint an Advisory Council for the Rehabilitation of Narcotic Addicts (a Chairperson and up to fifteen other qualified persons) and must prescribe members' terms and conditions by regulations.

The Council must advise the Cabinet Secretary on matters referred to it by the Cabinet Secretary about administration of the Centres and care, treatment and rehabilitation of drug addicts.

Courts may order part of a prison term to be served in a rehabilitation Centre for offenders addicted to narcotics, may vary or revoke such orders on application, and may grant remission if the offender completes treatment and is no longer an addict.

Section 59 lets Kenya request various forms of assistance from other countries (evidence, warrants, witnesses, enforcement of orders, service of notices, or other assistance). It also allows other countries to make such requests to the Director of Public Prosecutions, and permits the Director to request information and requires the Director to act on received information.

Evidence obtained from another country be received in evidence in Kenya.

A request under paragraph (c) of section 59 authorizes the entry, departure and presence in Kenya of the person who is the subject of the request; detention in transit and in Kenya is authorized where the person is in custody, and the Director of Public Prosecutions may specify places for detention.

The Attorney-General may nominate a Kenyan court to receive evidence for foreign investigations or proceedings; the nominated court has powers to secure witnesses, administer oaths and receive evidence; the court must certify or verify such evidence as the Attorney-General specifies and furnish it to the Attorney-General for transmission to the requesting country.

The Director of Public Prosecutions may apply to a Kenyan court for a search and seizure warrant when another country requests assistance to obtain and execute such a warrant.

If the Director of Public Prosecutions applies to the High Court to register an order under subsection (1), the High Court must register that order.

Conduct that would be a specified offence if committed in Kenya is also that offence if committed on a Kenyan ship or aircraft.

If an offence by a company is shown to have been committed with the consent, connivance or neglect of a director, manager, secretary or similar officer (or someone acting as such), that person as well as the company shall be guilty and may be proceeded against and punished; the convicting court may order deregistration if the company is registered under written law.

The Cabinet Secretary may, in consultation with the Cabinet Secretary responsible for health, by notice in the Gazette and from time to time designate any duly qualified analyst whose qualification the Cabinet Secretary shall prescribe for purposes of the Act.

In prosecutions under this Act, the defendant must prove licences, authorities, or other exceptions; the prosecution is not required to disprove those matters by evidence.

Persons must answer questions and produce documents when requested in relation to relevant matters; police officers may take copies of produced documents. Requests to produce may specify a reasonable time not exceeding seven days.

Communications between an advocate and the advocate's client made in connection with giving legal advice are described as privileged; items held to further a criminal purpose are not privileged.

Authorized police officers, persons written-authorized by the Inspector General of Police, the Director of Medical Services or persons he authorizes have the power to enter premises of those dealing in narcotic drugs or psychotropic substances, demand and inspect related books/documents and stocks, and seize and detain any such substances deemed below standard or unfit for medicinal use for the purpose of executing the Act.

Section 72 gives police officers (and persons the Inspector General authorizes in writing) powers to stop and search persons and conveyances, seize and detain evidence, arrest and detain persons pending magistrate appearance, enter and search vehicles and break open doors, and to use reasonable assistance and force.

Police officers authorized by warrant may enter and search premises and seize items; officers of a specified rank may exercise those powers without a warrant where delay would defeat the purpose, provided reasons are recorded in writing.

Police officers and persons authorized in writing by the Inspector General of Police may seize and detain articles and things liable to forfeiture under this Act, subject to the Act.

When narcotic drugs are seized the accused person, a designated analyst, the accused's advocate (if any) and any analyst appointed by the accused must weigh the whole seizure; the designated analyst must take and weigh samples and remove them for analysis; after analysis authorised officers must arrange destruction with a magistrate where the drug is found to be a narcotic or psychotropic substance; destruction must be carried out by authorised officers in the magistrate's presence where practicable and the magistrate must sign a prescribed certificate. Applies to proceedings commenced on or after 7 June 2002.

Persons who seize articles under the Act must deliver them promptly to the Inspector General of Police; the Inspector General must keep them safely and take reasonable steps to preserve them.

Females may only be searched by females and males may only be searched by males under this Act.

Person who seizes property must give notice as soon as possible to the owner or person in charge; the notice may be delivered personally, posted, or (if owner unknown/unfound/refuses) published; a claimant may notify the Inspector‑General within 30 days, but no claim is entertained after 90 days; unclaimed seized items may be disposed of by the Cabinet Secretary.

When a person is convicted and relevant property seized, the court convicting them may order that those seized items be condemned and forfeited to the Government.

Anything seized or condemned under this Act shall be disposed of in such manner as may be prescribed by regulations; if the Director of Medical Services certifies it can be used for medicinal purposes, it shall be disposed of in the manner so certified, otherwise by destruction in such manner and by such person or authority as may be prescribed by regulations.

Police officers may arrest without a warrant any person who has committed, attempted, is reasonably suspected of having committed or attempted, or is about to commit an offence against this Act.

Senior police officers may apply to the High Court, with written consent of the Director of Public Prosecutions, for an order to intercept communications; orders can require service providers to intercept/retain communications or allow police to install interception devices; unlawfully intercepting communications is an offence punishable by up to ten years imprisonment or a fine of not less than ten million shillings or both.

Persons must disclose information relevant to investigating or prosecuting offences under the Act; concealing or failing to disclose is an offence with penalties, and good-faith disclosures under subsection (1) are protected from civil or criminal proceedings.

It is an offence for a person who, while committing or facilitating an offence under the Act, holds, collects, generates or transmits information for use in committing that offence; on conviction the person faces a fine of not less than five million or imprisonment for not less than five years, or both.

Section 81 punishes attempts to commit offences against this Act.

Section 82 allows the Cabinet Secretary to charge fees (as prescribed by regulations) for licence/certificate/authorization applications or grants; and allows the Cabinet Secretary responsible for health to require persons undergoing treatment at certain Rehabilitation Centres to pay prescribed fees, with different fees possible based on income or property.

If any person contravenes a provision of the Act and no other penalty is prescribed, the person is liable to a fine of one hundred thousand shillings and imprisonment for five years.

The Cabinet Secretary has power to make regulations to carry out this Act and to prescribe detailed matters listed in subsection (2); the Chief Justice may make rules on court procedure for forfeiture, condemnation and restraint order proceedings.

Regulations under section 84 may provide penalties; persons who contravene such regulations (except where a specific penalty is provided) are liable to at least five million shillings and at least five years' imprisonment; where no penalty is expressly provided (and not being a regulation under section 4(4)), offenders are liable to at least two million shillings and at least three years' imprisonment, with an additional one hundred thousand shillings per day for continuing offences.

A person convicted of an offence under this Act is disqualified from being elected or appointed as a public officer for thirty years after the conviction.

When a fine depends on the market value of a narcotic, psychotropic substance or prohibited plant, a certificate signed by the proper officer is to be accepted by the court as prima facie evidence of that value; "proper officer" is an officer authorized by the Cabinet Secretary by Gazette notification for this section.

The Cabinet Secretary may, by order, add substances or plants to the First, Second and Third Schedules and may from time to time delete substances or plants from those Schedules when inclusion or exclusion is deemed necessary in the public interest.