Proceeds of Crime and Anti-Money Laundering Act
This Act may be cited as the Proceeds of Crime and Anti-Money Laundering Act.
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- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 59A
- Version
- 15 Sept 2023
- Language
- en
- Official source
- View official record ↗
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Statute overview
About this statute
This Act may be cited as the Proceeds of Crime and Anti-Money Laundering Act. The Act applies to matters relating to combating money laundering, combating terrorism financing, and combating financing of proliferation of weapons of mass destruction. Section 2 provides definitions and interpretive provisions used throughout the Act (it defines terms such as "account", "affected gift", "Agency", "authorised officer", "financial institution", "monetary instruments", "proceeds of crime", "person", and many others). A person who wilfully gives false information to the Financial Reporting Centre or an authorised officer commits an offence. Reporting institutions must not fail to comply with the requirements of sections 44, 45 and 46 or regulations; failing to do so is an offence. Courts must consider all circumstances and may take account of relevant guidance.
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Legal text
Provisions of Proceeds of Crime and Anti-Money Laundering Act
Showing 161 of 161
Part I
PRELIMINARY
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PRELIMINARY - 1. Short title
AI-assisted research summary: This Act may be cited as the Proceeds of Crime and Anti-Money Laundering Act.
Section 1. Short title Section This Act may be cited as the Proceeds of Crime and Anti-Money Laundering Act. - 2 Verify source ↗
PRELIMINARY - 2. Interpretation
AI-assisted research summary: Section 2 provides definitions and interpretive provisions used throughout the Act (it defines terms such as "account", "affected gift", "Agency", "authorised officer", "financial institution", "monetary instruments", "proceeds of crime", "person", and many others).
Section 2. Interpretation Section In this Act, unless the context otherwise requires— "account" includes any facility or arrangement by which a reporting institution ("a financial institution and designated non-financial business and profession;") does any one or more of the following— (a) accepts deposits of monetary instruments ; (b) allows withdrawals of monetary instruments or transfers into or out of the account; (c) pays cheques or payment orders drawn on a financial institution or collects cheques or payment orders on behalf of any person ("any natural or legal person;") ; (d) supplies a facility or arrangement for a safety or fixed term deposit box; "accounting officer" means an accounting officer appointed under section 17 of the Government Financial Management Act (Repealed); "Advisory Board" means the Asset Recovery Advisory Board established under section 55A ; "affected gift" means any gift made by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") at any time, if it was a gift of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") — (a) received by that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") in connection with an offence committed by him or any other person ("any natural or legal person;") ; or (b) any part thereof, which, directly or indirectly represents, in that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ’s hands, the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which that person ("any natural or legal person;") received in that connection with an offence : Provided that any such gift was made on or after the commencement of this Act; "Agency" means the Assets Recovery Agency established under section 53 (1); "Agency Director" means the Director of the Agency ("the Assets Recovery Agency established under(1);") appointed under section 53 (2); "authorised officer" means— (a) a police officer; (b) an officer of the department of the Kenya Revenue Authority ("the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act ();") for the time being responsible for matters relating to customs ; (c) Agency Director ("the Director of the Agency appointed under(2);") ; or (d) any person ("any natural or legal person;") or class of persons designated by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") as an authorised officer to perform any function under this Act; "Board" means the Anti-Money Laundering Advisory Board ("the Asset Recovery Advisory Board established under;") established under section 49 ; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to finance; "Centre" means the Financial Reporting Centre established under section 21 ; competent authority” means a public authority other than a self-regulatory body with designated responsibilities for combating money laundering ("an offence under any of the provisions of sections,and;") , financing of terrorism and proliferation financing; "confiscation order" means an order referred to in section 61 ; "court" means a court of competent jurisdiction; "customs" or "the customs" means the customs department of the Kenya Revenue Authority ("the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act ();") ; "data" means representations, in any form, of information or concepts; "defendant" means a person ("any natural or legal person;") against whom a prosecution for an offence has been instituted, irrespective of whether that person ("any natural or legal person;") has been convicted or not; "designated non-financial businesses or professions" means— (a) casinos (including internet casinos); (b) real estate agencies; (c) dealing in precious metals; (d) dealing in precious stones; (e) accountants who are sole practitioners, partners or employees within professional firms; (f) non-governmental organisations; (fa) trust and company service providers; (fb) advocates, notaries and other independent legal professionals who are sole practitioners, partners or employees within professional firms; (g) such other business or profession in which the risk of money laundering ("an offence under any of the provisions of sections,and;") , financing of terrorism and proliferation financing exists as the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") may, on the advice of the Centre ("the Financial Reporting Centre established under;") , declare; "Deputy Director" deleted by ActNo. 16 of 2021, s. 2 (a) ; "Director-General " means the Director-General appointed under section 25 ; "document" means any record of information, and includes— (a) anything on which there is writing; (b) anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them; (c) anything from which sounds, images, writings or data ("representations, in any form, of information or concepts;") can be retrieved, with or without the aid of anything else; or (d) a map, plan, drawing, photograph, video tape or similar thing; "estate agency" in connection with the selling, mortgaging, charging, letting or management of immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") or of any house, shop or other building forming part thereof, means doing any of the following acts— (a) bringing together, or taking steps to bring together, a prospective vendor, lessor or lender and a prospective purchaser, lessee or borrower; or (b) negotiating the terms of sale, mortgage, charge or letting as an intermediary between or on behalf of either of the principals; “financial group” means a group that consists of a parent company or of any other type of legal person ("any natural or legal person;") exercising control and coordinating functions over the rest of the group, together with branches or subsidiaries that are subject to Anti-Money Laundering and Combating of Terrorism Financing policies and procedures at the group level; "financial institution" means any person ("any natural or legal person;") or entity, which conducts as a business, one or more of the following activities or operations— (a) accepting deposits and other repayable funds from the public; (b) lending, including consumer credit, mortgage credit, factoring, with or without recourse, and financing of commercial transactions; (c) financial leasing; (d) transferring of funds or value, by any means, including both formal and informal channels; (e) issuing and managing means of payment (such as credit and debit cards, cheques, travellers’ cheques, money orders and bankers’ drafts, and electronic money); (f) financial guarantees and commitments; (g) trading in— (i) money market instruments, including cheques, bills, certificates of deposit and derivatives; (ii) foreign exchange; (iii) exchange, interest rate and index funds; (iv) transferable securities; and (v) commodity futures trading; (h) participation in securities issues and the provision of financial services related to such issues; (i) individual and collective portfolio management; (j) safekeeping and administration of cash or liquid securities on behalf of other persons; (k) otherwise investing, administering or managing funds or money on behalf of other persons; (l) underwriting and placement of life insurance and other investment related insurance; and (m) money and currency changing: Provided that this applies both to insurance underwriter and to insurance intermediaries including agents and brokers; "fixed date" , in relation to a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") against whom— (a) a prosecution for an offence has been instituted, means the date on which such prosecution has been instituted; or (b) a restraint order ("an order made under;") has been made means the date of such restraints order, whichever is the earlier date; "Fund" means the Criminal Assets Recovery Fund established under section 109 ; "inspector" means a person ("any natural or legal person;") designated as such under this Act; "Kenya Revenue Authority" means the Kenya Revenue Authority established by section 3 of the Kenya Revenue Authority Act ( Cap. 469 ); "Minister" deleted by ActNo. 16 of 2021, s. 2 (d) ; "monetary instruments" means— (a) coins and paper currency designated as legal tender of Kenya or of a foreign country and which is customarily used and accepted as a medium of exchange in Kenya or the country of issue; (b) travellers' cheques, personal cheques, bank cheques, money orders or securities; (c) any other negotiable instrument which is in bearer form, or other form through which title passes upon delivery; "money laundering" means an offence under any of the provisions of sections 3 , 4 and 7 ; "offence" in this Act, means an offence against a provision of any law in Kenya, or an offence against a provision of any law in a foreign state for conduct which, if it occurred in Kenya, would constitute an offence against a provision of any law in Kenya; "person" means any natural or legal person; "proceeds of crime" means any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") into which any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") from the time the offence was committed; "property" means all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property; "realizable property" means- (a) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") laundered; (b) proceeds from or instrumentalities used in, or intended to be used in money laundering ("an offence under any of the provisions of sections,and;") or predicate offences; (c) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that is the proceeds of, or used, or intended or allocated for use in, the financing of any offence ; and (d) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of corresponding value; "regulations" means regulations made under this Act; "reporting institution" means a financial institution and designated non-financial business and profession; "restraint order" means an order made under section 68 ; “Self-regulatory body” means the Law Society of Kenya; "supervisory body" means a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") ; "tainted property" in relation to an offence means— (a) any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") used in, or in connection with, the commission of the offence ; (b) any proceeds of the offence ; or (c) any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in Kenya which is the proceeds of a foreign offence in respect of which an order may be registered, and when used without reference to a particular offence means tainted property in relation to an arrestable offence . [ Act No. 51 of 2012 , s. 2, Act No. 14 of 2015 , s. 48, Act No. 3 of 2017 , s. 2, Act No. 18 of 2018 , Sch., Act No. 16 of 2021 , s. 2, Act No. 10 of 2023 , Sch.] - 2A Verify source ↗
PRELIMINARY - 2A. Scope of application
AI-assisted research summary: The Act applies to matters relating to combating money laundering, combating terrorism financing, and combating financing of proliferation of weapons of mass destruction.
Section 2A. Scope of application Section This Act shall apply to matters relating to combating of money laundering ("an offence under any of the provisions of sections,and;") , combating of terrorism financing and combating of the financing of proliferation of weapons of mass destruction. [Act No. 10 of 2023 , Sch.]
Part II
MONEY LAUNDERING AND RELATED OFFENCES
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MONEY LAUNDERING AND RELATED OFFENCES - 10. Malicious Reporting
AI-assisted research summary: A person who wilfully gives false information to the Financial Reporting Centre or an authorised officer commits an offence.
Section 10. Malicious Reporting Section Any person ("any natural or legal person;") who wilfully gives any information to the Centre ("the Financial Reporting Centre established under;") or an authorised officer knowing such information to be false commits an offence . - 11 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 11. Failure to comply with the provisions of this Act
AI-assisted research summary: Reporting institutions must not fail to comply with the requirements of sections 44, 45 and 46 or regulations; failing to do so is an offence. Courts must consider all circumstances and may take account of relevant guidance.
Section 11. Failure to comply with the provisions of this Act Section 11(1) A reporting institution ("a financial institution and designated non-financial business and profession;") that fails to comply with any of the requirements of sections 44 , 45 and 46 , or of any regulations, commits an offence. Section 11(2) In determining whether a person ("any natural or legal person;") has complied with any requirement of the provisions referred to in subsection (1), the court ("a court of competent jurisdiction;") shall have regard to all the circumstances of the case, including such custom and practice as may, from time to time, be current in the relevant trade, business, profession or employment, and may take account of any relevant guidance adopted or approved by a public authority exercising supervisory functions in relation to that person ("any natural or legal person;") , or any other body that regulates or is representative of the trade, business, profession or employment carried on by that person ("any natural or legal person;") . - 12 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 12. Conveyance ofmonetary instrumentsto or from Kenya
AI-assisted research summary: Persons intending to carry monetary instruments above the prescribed amount into or out of Kenya must report the conveyance before doing so; authorised receivers must forward reports to the Financial Reporting Centre; wilful failure or material misrepresentation is an offence; authorised officers may temporarily seize suspected instruments (up to five days) and must surrender seized instruments to the Agency Director within five days.
Section 12. Conveyance ofmonetary instrumentsto or from Kenya Section 12(1) A person ("any natural or legal person;") intending to convey monetary instruments in excess of the amount prescribed in the Second Schedule to or from Kenya whether as a traveller or through mail or cargoshall, before so doing, report the particulars concerning that conveyance to a person ("any natural or legal person;") authorised by the regulations ("regulations made under this Act;") for that purpose. Section 12(2) A person ("any natural or legal person;") authorised to receive a report made in subsection (1) shall, without delay, send a copy of the report to the Centre ("the Financial Reporting Centre established under;") . Section 12(3) A person ("any natural or legal person;") who wilfully fails to report the conveyance of monetary instruments into or out of Kenya, or materially misrepresents the amount of monetary instruments reported in accordance with the requirements of subsection (1) commits an offence . Section 12(4) Any monetary instrument used in a suspected violation of subsection (3), or which an authorised officer has reasonable grounds to suspect is tainted property , may be temporarily seized by an authorised officer for as long as is necessary to obtain a court ("a court of competent jurisdiction;") order under section 68 or 82 , but not later than five days. Section 12(5)(a) the name, agency, rank of the seizing officer; Section 12(5)(a)(i) the name, agency, rank of the seizing officer; Section 12(5)(a)(ii) contact information for that officer and agency; Section 12(5)(a)(iii) time, date and location of seizure; Section 12(5)(a)(iv) description (including serial numbers) of the value of and types of instruments seized; and Section 12(5)(b) a formal notice of the authorised officer ’s intent to initiate forfeiture proceedings under this Act against the seized monetary instruments . Section 12(5A) An authorised officer shall, upon discovery of a false declaration or disclosure of monetary instruments or a failure to declare or disclose them, enquire from the person ("any natural or legal person;") in whose possession the monetary instruments are found the origin thereof and their intended use, and shall record the same in writing signed by the person ("any natural or legal person;") in possession of the monetary instruments and countersigned by himself. Section 12(5B)(a) the amount comprised in the monetary instruments declared or disclosed, and Section 12(5B)(b) the identity of the bearer of the monetary instruments , Section 12(5C)(a) the subsequent declaration by the same person ("any natural or legal person;") exceeds the prescribed threshold specified in the Fourth Schedule; or Section 12(5C)(b) there is false declaration; or Section 12(5C)(c) there is suspicion of the commission of any other offence . Section 12(6) An authorised officer , other than Agency Director ("the Director of the Agency appointed under(2);") , shall immediately but not later than five days surrender monetary instruments seized under subsection (4) to the Agency Director ("the Director of the Agency appointed under(2);") in such manner as the Agency Director ("the Director of the Agency appointed under(2);") may direct. Section 12(7) If an authorised officer fails to obtain an order under section 68 or 82 against the temporarily seized monetary instruments within five days from the date of seizure pursuant to subsection (4), then, unless that period is otherwise extended by the Court, the monetary instruments shall be returned forthwith to the person from whom it was taken. [ Act No. 51 of 2012 , s. 5, Act No. 10 of 2023 , Sch.] - 13 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 13. Misuse of information
AI-assisted research summary: Information collected on natural persons under this section must be dealt with according to the principles set out in the Data Protection Act, 2019.
Section 13. Misuse of information Section 13(1)(a) that information has been disclosed under the provisions of Part II; or Section 13(1)(b) that an investigation is being, or may be, conducted as a result of that disclosure, Section 13(2) The information collected on natural persons under this section shall be dealt according to the data ("representations, in any form, of information or concepts;") principles set out in the Data Protection Act, 2019. [ Act No. 24 of 2019 , 2nd Sch.] - 14 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 14. Failure to comply with order ofcourt
AI-assisted research summary: A person (any natural or legal person) who intentionally refuses or fails to comply with a court order made under this Act commits an offence.
Section 14. Failure to comply with order ofcourt Section A person ("any natural or legal person;") who intentionally refuses or fails to comply with an order of a court ("a court of competent jurisdiction;") made under this Act, commits an offence . - 15 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 15. Hindering apersonin performance of functions under this Act
AI-assisted research summary: It is a criminal offence for any natural or legal person to hinder a receiver, police officer, or other person in performing powers, functions or duties under this Act.
Section 15. Hindering apersonin performance of functions under this Act Section A person ("any natural or legal person;") who hinders a receiver, a police officer or any other person ("any natural or legal person;") in the exercise, performance or carrying out of their powers, functions or duties under this Act, commits an offence . - 16 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 16. Penalties
AI-assisted research summary: Section 16 sets out penalties for offences under this Part, including imprisonment and fines for natural persons and fines for bodies corporate, and provides for prosecution of corporate officers where offences are committed with their consent or connivance.
Section 16. Penalties Section 16(1)(a) in the case of a natural person ("any natural or legal person;") , to imprisonment for a term not exceeding fourteen years, or a fine not exceeding five million shillings or the amount of the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") involved in the offence , whichever is the higher, or to both the fine and imprisonment; and Section 16(1)(b) in the case of a body corporate, to a fine not exceeding twenty-five million shillings, or the amount of the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") involved in the offence , whichever is the higher. Section 16(2)(a) in the case of a natural person ("any natural or legal person;") , to imprisonment for a term not exceeding seven years, or a fine not exceeding two million, five hundred thousand shillings, or to both and Section 16(2)(b) in the case of a body corporate, to a fine not exceeding ten million shillings or the amount of the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") involved in the offence , whichever is the higher. Section 16(3) A person ("any natural or legal person;") who contravenes the provisions of section 12 (3) is, on conviction, liable to a fine not exceeding fifty percent of the amount of the monetary instruments involved in the offence , or imprisonment for a term not exceeding five years, or to both. Section 16(4)(a) in the case of a natural person ("any natural or legal person;") , to imprisonment for a term not exceeding two years, or a fine not exceeding one million shillings, or to both and Section 16(4)(b) in the case of a body corporate, to a fine not exceeding five million shillings or the amount of the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") involved in the offence , whichever is the higher. Section 16(5) Deleted by ActNo. 51 of 2012. Section 16(6) Where any offence under this Part is committed by a body corporate with the consent or connivance of any director, manager, secretary or any other officer of the body corporate, or any person ("any natural or legal person;") purporting to act in such capacity, that person ("any natural or legal person;") , as well as the body corporate, shall be prosecuted in accordance with the provisions of this Act. [ Act No. 51 of 2012 , s. 6, Act No. 10 of 2023 , Sch.] - 17 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 17. Secrecy obligations overridden
AI-assisted research summary: This section makes the Act override secrecy obligations and says there will be no liability for disclosures made to comply with the Act.
Section 17. Secrecy obligations overridden Section 17(1) The provisions of this Act shall override any obligation as to secrecy or other restriction on disclosure of information imposed by any other law or otherwise. Section 17(2) No liability based on a breach of an obligation as to secrecy or any restriction on the disclosure of information, whether imposed by any law, the common law or any agreement, shall arise from a disclosure of any information in compliance with any obligation imposed by this Act. [ Act No. 51 of 2012 , s. 7] - 18 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 18. Client advocate relationship
AI-assisted research summary: Advocate–client privileged communications are protected for professional advice and legal proceedings; a High Court Judge may order an advocate to disclose related information during an investigation, but an advocate need not comply to the extent disclosure would breach the privilege.
Section 18. Client advocate relationship Section 18(1) Notwithstanding the provisions of section 17 , nothing in this Act shall affect or be deemed to affect the relationship between an advocate and his client with regard to communication of privileged information between the advocate and the client. Section 18(2) The provisions of subsection (1) shall only apply in connection with the giving of advice to the client in the course and for purposes of the professional employment of the advocate or in connection and for the purpose of any legal proceedings on behalf of the client. Section 18(3) Notwithstanding any other law, a Judge of the High Court may, on application being made to him in relation to an investigation under this Act, order an advocate to disclose information available to him in respect of any transaction or dealing relating to the matter under investigation. Section 18(4) Nothing in subsection (3) shall require an advocate to comply with an order under that subsection to the extent that such compliance would be in breach of subsection (2). - 19 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 19. Immunity where actions are exercised in good faith
AI-assisted research summary: Certain reporting institutions, government entities, their officers and other persons are immune from suit, prosecution or other legal proceedings for acts done with due diligence and in good faith under this Act.
Section 19. Immunity where actions are exercised in good faith Section A suit, prosecution or other legal proceedings shall not lie against any reporting institution ("a financial institution and designated non-financial business and profession;") or Government entity, or any officer, partner or employee thereof, or any other person ("any natural or legal person;") in respect of anything done by or on behalf of that person ("any natural or legal person;") with due diligence and in good faith, in the exercise of any power or the performance of any function or the exercise of any obligation under this Act. - 20 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 20. Protection of information and informers
AI-assisted research summary: Information relating to an offence and the identity of the informer received by the Financial Reporting Centre or an authorised officer must be kept confidential, subject to specified exceptions for assisting the Centre or for purposes of the Act and where a court considers disclosure necessary for justice.
Section 20. Protection of information and informers Section 20(1) Where any information relating to an offence under this Act is received by the Centre ("the Financial Reporting Centre established under;") or an authorised officer , the information and the identity of the person ("any natural or legal person;") giving the information shall be kept confidential. Section 20(2)(a) where it is for the purposes of assisting the Centre ("the Financial Reporting Centre established under;") or the authorised officer to carry out their functions as stated under this Act; or Section 20(2)(b) for the purposes of this Act; or Section 20(2)(b)(i) for the purposes of this Act; or Section 20(2)(b)(ii) where the court ("a court of competent jurisdiction;") is of the opinion that justice cannot fully be done between the parties without revealing the disclosure or the identity of any person ("any natural or legal person;") as the person ("any natural or legal person;") making the disclosure. - 3 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 3. Money laundering
AI-assisted research summary: Section 3 concerns money laundering and refers to entering into any agreement, arrangement or transaction with anyone in connection with property described as "all monetary instruments and all other real or personal property of every description..."
Section 3. Money laundering Section enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , whether that agreement, arrangement or transaction is legally enforceable or not; or - 4 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 4. Acquisition, possession or use ofproceeds of crime
AI-assisted research summary: Addresses acquisition, possession or use of proceeds of crime.
Section 4. Acquisition, possession or use ofproceeds of crime Section acquires; - 5 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 5. Failure to report suspicion regardingproceeds of crime
AI-assisted research summary: A person ("any natural or legal person;") who wilfully fails to comply with an obligation contemplated in section 44 (2) commits an offence.
Section 5. Failure to report suspicion regardingproceeds of crime Section A person ("any natural or legal person;") who wilfully fails to comply with an obligation contemplated in section 44 (2) commits an offence. - 6 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 6. Defence
AI-assisted research summary: A person charged with an offence under sections 3, 4 or 5 may raise as a defence that they reported a suspicion under section 44, or if an employee of a reporting institution, that they reported information under section 47(a).
Section 6. Defence Section If a person ("any natural or legal person;") is charged with committing an offence under section 3 , 4 or 5 , that person may raise as a defence the fact that he had reported a suspicion under the terms and conditions set forth in section 44 or, if the person is an employee of a reporting institution, that he has reported information pursuant to section 47 (a). - 7 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 7. Financial promotion of anoffence
AI-assisted research summary: A person who knowingly moves or attempts to move money or anything of value to another, with intent to commit an offence, commits an offence.
Section 7. Financial promotion of anoffence Section A person ("any natural or legal person;") who, knowingly transports, transmits, transfers or receives or attempts to transport, transmit, transfer or receive a monetary instrument or anything of value to another person ("any natural or legal person;") , with intent to commit an offence , that person ("any natural or legal person;") commits an offence . - 8 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 8. Tipping off
AI-assisted research summary: It is an offence for any natural or legal person who knows (or ought reasonably to have known) that a suspicious-activity report under section 44 is being prepared, sent or about to be sent to the Centre, to disclose information relating to that report; certain defences and exemptions apply.
Section 8. Tipping off Section 8(1)(i) knows or ought reasonably to have known that a report under section 44 is being prepared or has been or is about to be sent to the Centre; and Section 8(1)(ii) discloses to another person ("any natural or legal person;") information or other matters relating to a report made under paragraph (i), Section 8(2) In proceedings for an offence under this section, it is a defence to prove that the person ("any natural or legal person;") did not know or have reasonable grounds to suspect that the disclosure was likely to prejudice a report made under subsection (1). Section 8(3) For the purposes of this section, a " person ("any natural or legal person;") " includes a financial group . Section 8(4) The act of a lawyer, notary and other independent legal professional seeking to dissuade a client from engaging in an illegal activity's does not constitute the offence of tipping-off under this section. [ Act No. 51 of 2012 , s. 4, Act No. 10 of 2023 , Sch.] - 9 Verify source ↗
MONEY LAUNDERING AND RELATED OFFENCES - 9. Misrepresentation
AI-assisted research summary: A person who knowingly makes or provides false statements or documents to a reporting institution, a supervisory body, or the Financial Reporting Centre commits an offence.
Section 9. Misrepresentation Section A person ("any natural or legal person;") who knowingly makes a false, fictitious or fraudulent statement or representation, or makes, or provides, any false document , knowing the same to contain any false, fictitious or fraudulent statement or entry, to a reporting institution ("a financial institution and designated non-financial business and profession;") , or to a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or to the Centre ("the Financial Reporting Centre established under;") , commits an offence .
Part III
FINANCIAL REPORTING CENTRE
- 21 Verify source ↗
FINANCIAL REPORTING CENTRE - 21. Establishment of a Financial ReportingCentre
AI-assisted research summary: Establishment of a Financial Reporting Centre; section heading includes 'suing and being sued'.
Section 21. Establishment of a Financial ReportingCentre Section suing and being sued; - 22 Verify source ↗
FINANCIAL REPORTING CENTRE - 22. Headquarters
AI-assisted research summary: The headquarters of the Financial Reporting Centre shall be in Nairobi.
Section 22. Headquarters Section The headquarters of the Centre ("the Financial Reporting Centre established under;") shall be in Nairobi. - 23 Verify source ↗
FINANCIAL REPORTING CENTRE - 23. Objectives of theCentre
AI-assisted research summary: Section 23 states that the Financial Reporting Centre's principal objective is to assist in identifying proceeds of crime and to combat money laundering, terrorism financing and proliferation financing; it also sets objectives to make collected information available to relevant bodies, to exchange information with similar foreign bodies, and to ensure compliance with international anti-money-laundering and counter‑financing standards.
Section 23. Objectives of theCentre Section 23(1) The principal objective of the Centre ("the Financial Reporting Centre established under;") is to assist in the identification of proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") and combating of money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing and combating of proliferation financing. Section 23(2)(a) make information collected by it available to investigating authorities, supervisory bodies and any other bodies relevant to facilitate the administration and enforcement of the laws of Kenya; Section 23(2)(b) exchange information with similar bodies in other countries regarding money laundering ("an offence under any of the provisions of sections,and;") , financing of terrorism and proliferation financing activities and related offences; and Section 23(2)(c) ensure compliance with international standards and best practice in anti- money laundering ("an offence under any of the provisions of sections,and;") , counter financing of terrorism and counter proliferation financing measures. - 24 Verify source ↗
FINANCIAL REPORTING CENTRE - 24. Functions and powers of theCentre
AI-assisted research summary: Section title: "Functions and powers of the Centre" and text referring to all reports made pursuant to section 12.
Section 24. Functions and powers of theCentre Section all reports made pursuant to section 12 ; - 24A Verify source ↗
FINANCIAL REPORTING CENTRE - 24A. Instructions or directions
AI-assisted research summary: The Centre may issue instructions, directions, guidelines or rules to reporting institutions and may delegate those powers to supervisory bodies; supervisory bodies must consult the Centre before issuing such rules; reporting institutions must provide information or documents specified in notices, cease conduct contrary to the Act, and take actions to remedy non-compliance; the Centre or supervisory bodies may examine and copy submitted documents.
Section 24A. Instructions or directions Section 24A(1) The Center may issue such instructions, directions, guidelines or rules to reporting institutions as it may consider necessary for the better carrying out of its functions under this Act or regarding the application of this Act. Section 24A(2)(a) be either general or special; Section 24A(2)(b) be revoked or varied by subsequent instructions, directions, guidelines or rules; Section 24A(2)(c) be given to such persons and in such manner as may be considered appropriate by the Centre ("the Financial Reporting Centre established under;") . Section 24A(3) The Center may, where it deems appropriate, delegate powers to a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") to issue instructions, directions, guidelines or rules regarding the application of this Act to reporting institutions regulated or supervised by the supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") : Provided that a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") shall consult the Centre ("the Financial Reporting Centre established under;") prior to issuing any instructions, directions, guidelines or rules under this section. Section 24A(4)(a) with the information reports or statistical returns specified in the notice, at the time or at the intervals specified in the notice; and Section 24A(4)(a)(i) with the information reports or statistical returns specified in the notice, at the time or at the intervals specified in the notice; and Section 24A(4)(a)(ii) within the period specified in the notice, with any document in its possession or custody or under its control; Section 24A(4)(b) cease or refrain from engaging in any act, omission or conduct in contravention of this Act; Section 24A(4)(c) perform such act as may be necessary to remedy alleged non-compliance with this Act; or Section 24A(4)(d) perform such act as may be necessary to meet any obligation imposed by this Act. Section 24A(5) The Centre ("the Financial Reporting Centre established under;") or a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") may examine a document submitted to it in terms of subsection (4)(a) and may make a copy thereof or of part thereof. [ Act No. 51 of 2012 , s. 9] - 24B Verify source ↗
FINANCIAL REPORTING CENTRE - 24B. Powers of theCentreto impose civil penalties for non-compliance
AI-assisted research summary: The Financial Reporting Centre may impose monetary penalties: up to 5,000,000 shillings for a natural person, up to 25,000,000 shillings for a corporate body; continued failure attracts 10,000 shillings per day for up to 180 days; the Centre must give at least 14 days' written notice before imposing a penalty; penalties are payable to and recoverable by the Centre.
Section 24B. Powers of theCentreto impose civil penalties for non-compliance Section 24B(1)(a) in the case of a natural person ("any natural or legal person;") , a person ("any natural or legal person;") shall be liable to a monetary penalty not exceeding five million shillings; Section 24B(1)(b) in the case of a corporate body, the corporate body shall be liable to a monetary penalty not exceeding twenty-five million shillings; Section 24B(1)(c) in the case of continued failure, the person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") shall be liable to an additional monetary penalty of ten thousand shillings per day on which such failure continues for a maximum period of one hundred and eighty days. Section 24B(2) Before imposing a monetary penalty on any person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") under this section, the Centre ("the Financial Reporting Centre established under;") shall give not less than fourteen days notice in writing, requiring the person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") to show cause as to why the prescribed monetary penalty should not be imposed. Section 24B(3)(a) be paid to the Centre ("the Financial Reporting Centre established under;") and form part of the funds of the Centre ("the Financial Reporting Centre established under;") ; Section 24B(3)(b) be paid within fourteen days, unless otherwise stated; and Section 24B(3)(c) where a person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") fails to pay the monetary penalty within the prescribed time, the Centre ("the Financial Reporting Centre established under;") may take such other action as the Centre ("the Financial Reporting Centre established under;") may deem necessary in accordance with this Act. Section 24B(4) A monetary penalty imposed on a person ("any natural or legal person;") under this section shall be a debt due to the Centre ("the Financial Reporting Centre established under;") and shall, after it becomes due be recoverable at any time through proceedings in a court ("a court of competent jurisdiction;") of competent jurisdiction. [ Act No. 3 of 2017 , s. 4, Act No. 10 of 2023 , Sch.] - 24C Verify source ↗
FINANCIAL REPORTING CENTRE - 24C. Disclosure in writing
AI-assisted research summary: The Financial Reporting Centre must give a written notice of not less than fourteen days requiring the person or reporting institution to show cause before taking administrative action under this section.
Section 24C. Disclosure in writing Section 24C(1)(a) issue a warning to a specified person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") ; or Section 24C(1)(b) issue an order requiring a specified person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") to comply with any specific instruction or direction issued by the Centre ("the Financial Reporting Centre established under;") ; Section 24C(1)(c) issue an order barring an individual or individuals from employment within the specified reporting institution ("a financial institution and designated non-financial business and profession;") whether entirely or in a specified capacity; Section 24C(1)(d) issue an order to a competent supervisory authority requesting the suspension or revocation of a license, registration, permit or authorization of a specified reporting institution ("a financial institution and designated non-financial business and profession;") whether entirely or in a specified capacity or of any director, principal, officer, agent or employee of the reporting institution ("a financial institution and designated non-financial business and profession;") . Section 24C(2) Before taking administrative action imposed against any person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") under this section, the Centre ("the Financial Reporting Centre established under;") shall give the person ("any natural or legal person;") or reporting institution ("a financial institution and designated non-financial business and profession;") a written notice of not less than fourteen days requiring the person ("any natural or legal person;") or institution to show cause as to why the prescribed administrative action should not be taken. [ Act No. 3 of 2017 , s. 4, Act No. 10 of 2023 , Sch.] - 25 Verify source ↗
FINANCIAL REPORTING CENTRE - 25. Appointment of Director-General
AI-assisted research summary: Section 25 establishes a Director-General of the Financial Reporting Centre and sets appointment, qualification, term and appointment-process requirements.
Section 25. Appointment of Director-General Section 25(1) There shall be a Director-General of the Centre ("the Financial Reporting Centre established under;") . Section 25(2) The Director-General shall be fit, competent and proper persons, recommended by the Board ("the Anti-Money Laundering Advisory Board established under;") and approved by the National Assembly for appointment to their respective positions. Section 25(3) On approval of a person ("any natural or legal person;") by the National Assembly under subsection (2), the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") shall appoint that person ("any natural or legal person;") to the office in respect of which the approval was given. Section 25(4)(a) holds a degree in law, public administration, management, international relations, economics or finance from a recognised institution; Section 25(4)(b) has at least ten years work experience in the relevant field, of which at least three shall be in senior management; and Section 25(4)(c) meets such other requirements that may be prescribed by the Board ("the Anti-Money Laundering Advisory Board established under;") . Section 25(5)(a) for a term of four years and three years, respectively, subject to renewal for one further term of four years and three years, respectively; and Section 25(5)(b) on such terms and conditions as may be determined by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") in consultation with the Board ("the Anti-Money Laundering Advisory Board established under;") and set out in the instrument of appointment which shall include specific and measurable performance targets. Section 25(6) The provisions of subsection (3) shall apply to the renewal of an appointment under subsection (5)(a). [ Act No. 3 of 2017 , s. 5, Act No. 16 of 2021 , s. 4.] - 26 Verify source ↗
FINANCIAL REPORTING CENTRE - 26. Resignation of Director-General
AI-assisted research summary: The Director-General may resign by delivering a written resignation addressed to the Cabinet Secretary; the resignation becomes effective when received by the Cabinet Secretary or by a person authorized by the Cabinet Secretary.
Section 26. Resignation of Director-General Section 26(1) The Director-General may resign by a written resignation addressed to the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") . Section 26(2) A resignation is effective upon being received by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") or by a person ("any natural or legal person;") authorized by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") to receive it. [ Act No. 3 of 2017 , s. 6. Act No. 16 of 2021 , s. 5.] - 27 Verify source ↗
FINANCIAL REPORTING CENTRE - 27. Removal from office
AI-assisted research summary: The Cabinet Secretary may suspend the Director-General from office, in consultation with the Board, pending an inquiry into misconduct, incapacity or incompetence.
Section 27. Removal from office Section 27(1)(a) where there is proof of a financial conflict of interest with any reporting institution ("a financial institution and designated non-financial business and profession;") ; Section 27(1)(b) if he is adjudged bankrupt or enters into a composition or scheme of arrangement with his creditors; or Section 27(1)(c) if he has been convicted of an offence for which one may be sentenced to imprisonment for a term exceeding six months. Section 27(2) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") may, in consultation with the Board ("the Anti-Money Laundering Advisory Board established under;") , suspend the Director-General from office pending determination of any inquiry as to whether grounds of misconduct, incapacity or incompetence exist. [ Act No. 3 of 2017 , s. 7, Act No. 16 of 2021 , s. 6.] - 28 Verify source ↗
FINANCIAL REPORTING CENTRE - 28. Responsibilities of the Director-General
AI-assisted research summary: The Director-General shall be the Chief Executive Officer of the Financial Reporting Centre and is responsible for its direction, management and specified administrative duties; performance of the office is subject to a policy framework that the Cabinet Secretary may prescribe on the advice of the Board.
Section 28. Responsibilities of the Director-General Section 28(1) The Director-General shall be the Chief Executive Officer of the Centre ("the Financial Reporting Centre established under;") and shall be responsible for its direction and management. Section 28(2)(a) the formation and development of an efficient and performance driven administration; Section 28(2)(b) control and maintenance of discipline of staff; and Section 28(2)(c) taking all decisions of the Centre ("the Financial Reporting Centre established under;") in the exercise, discharge and performance of the Centre ("the Financial Reporting Centre established under;") 's objectives, powers, functions and duties. Section 28(3) The Director-General shall perform the functions of the office subject to the policy framework which may be prescribed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") on the advice of the Board ("the Anti-Money Laundering Advisory Board established under;") . [ Act No. 3 of 2017 , s. 8, Act No. 16 of 2021 , s. 7.] - 29 Verify source ↗
FINANCIAL REPORTING CENTRE - 29. Delegation by the Director-General
AI-assisted research summary: The Director-General may, in writing, delegate any of his powers and duties under the Act to other officers of the Financial Reporting Centre and may vary or cancel such delegations at any time.
Section 29. Delegation by the Director-General Section 29(1) Subject to this Act, the Director-General may in writing, delegate any of his powers and duties under this Act to any other officer or officers of the Centre ("the Financial Reporting Centre established under;") as the Director-General may determine. Section 29(2) A delegation made under subsection (1) may, at any time, be varied or cancelled by the Director-General. [Act No. 3 of 2017, s. 9.] - 30 Verify source ↗
FINANCIAL REPORTING CENTRE - 30.[Repealed by ActNo. 16 of 2021, s. 8.]
AI-assisted research summary: Section 30 has been repealed.
Section 30.[Repealed by ActNo. 16 of 2021, s. 8.] - 31 Verify source ↗
FINANCIAL REPORTING CENTRE - 31. Appointment of staff
AI-assisted research summary: The Cabinet Secretary may approve the Centre's general terms and conditions of service; the Centre must determine its own staff establishment and may appoint officers; the Centre may engage any person by agreement to perform specific acts or functions.
Section 31. Appointment of staff Section 31(1) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") may approve the general terms and conditions of service of the Centre ("the Financial Reporting Centre established under;") . Section 31(2) The Centre ("the Financial Reporting Centre established under;") shall determine its own staff establishment and may appoint other officers as are necessary for the proper discharge of its functions under this Act in accordance with the approved general terms and conditions of service. Section 31(3) The Centre ("the Financial Reporting Centre established under;") may engage the services of any person ("any natural or legal person;") by agreement including any state department to perform any specific act or function. [ Act No. 3 of 2017 , s. 11] - 32 Verify source ↗
FINANCIAL REPORTING CENTRE - 32. Oath of confidentiality
AI-assisted research summary: Before beginning duties under the Act, persons must take and subscribe the oath of confidentiality before a Magistrate or Commissioner for Oaths as prescribed in the Third Schedule.
Section 32. Oath of confidentiality Section before they begin to perform any duties under this Act, take and subscribe before a Magistrate or Commissioner for Oaths the oath of confidentiality prescribed in the Third Schedule; - 33 Verify source ↗
FINANCIAL REPORTING CENTRE - 33. Inspection
AI-assisted research summary: When an inspection under section 24(c) is made, the reporting institution and its officers and employees must produce and make available specified books, accounts and information within seven days or a longer written time directed by the inspector; failure to comply is an offence. The inspector must make copies of required documents and submit a report to the Director-General noting breaches and matters warranting remedial or further action. Information obtained is to be treated as confidential and used solely for the purposes of the Act.
Section 33. Inspection Section 33(1) Where an inspection is made under section 24 (c), the reporting institution concerned and every officer and employee thereof shall produce and make available to the inspector all the books, accounts and other documents of the reporting institution and any correspondence, statements and information relating to the reporting institution, its business and the conduct thereof which the inspector may require within seven days or such longer time as the inspector may direct in writing. Section 33(2) Failure to produce books, accounts, records, documents, correspondence, statements, returns or other information within the period specified in the direction under subsection (1) shall constitute an offence under this Act. Section 33(3) The books of accounts and other documents required to be produced shall not, in the course of inspection, be removed from the premises of the reporting institution ("a financial institution and designated non-financial business and profession;") or other premises at which they are produced. Section 33(4) The inspector ("a person designated as such under this Act;") shall make copies of any books, accounts and other documents required for the purpose of the inspector ("a person designated as such under this Act;") ’s report. Section 33(5) All information obtained in the course of the inspection shall be treated as confidential and used solely for the purposes of this Act. Section 33(6) An inspector ("a person designated as such under this Act;") shall submit a report to the Director-General, in which attention shall be made to any breach or non-observance of the requirement of this Act or any regulations ("regulations made under this Act;") made thereunder and any other matter revealed or discovered in the course of the inspection, warranting in the opinion of the inspector ("a person designated as such under this Act;") , remedial action or further action by the Director-General or the appropriate supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") . [ Act No. 3 of 2017 , s. 13] - 34 Verify source ↗
FINANCIAL REPORTING CENTRE - 34. Obligation to respond to the inspection reports
AI-assisted research summary: The Director-General may, by written notice and after giving a reporting institution a reasonable opportunity to be heard, require that reporting institution to comply with directions arising from a report under section 33, by a specified date or within a specified period.
Section 34. Obligation to respond to the inspection reports Section The Director-General may by notice in writing and after giving the reporting institution ("a financial institution and designated non-financial business and profession;") a reasonable opportunity of being heard, require the reporting institution ("a financial institution and designated non-financial business and profession;") to comply by the date or within the period as may be specified therein, with such directions as are necessary in connection with any matter arising out of a report made under section 33 . [ Act No. 3 of 2017 , s. 14] - 35 Verify source ↗
FINANCIAL REPORTING CENTRE - 35. Obligation of persons to provide information to the inspectors
AI-assisted research summary: Persons must assist inspectors, appear when required and produce relevant books or documents; persons must not refuse, obstruct, or provide false or misleading information; penalties include up to three years' imprisonment or fines up to one million shillings for individuals and up to five million shillings for bodies corporate.
Section 35. Obligation of persons to provide information to the inspectors Section 35(1)(a) give to the inspector ("a person designated as such under this Act;") all reasonable assistance in connection with the inspection; or Section 35(1)(b) appear before the inspector ("a person designated as such under this Act;") for examination concerning matters relevant to the inspection; or Section 35(1)(c) produce any books or documents that relate to the affairs of the reporting institution ("a financial institution and designated non-financial business and profession;") . Section 35(2)(a) refuses or fails to comply with a requirement of an inspector ("a person designated as such under this Act;") which is applicable to that person ("any natural or legal person;") , to the extent to which the person ("any natural or legal person;") is able to comply with it; or Section 35(2)(b) obstructs or hinders an inspector ("a person designated as such under this Act;") in the exercise of the powers under this Act; or Section 35(2)(c) furnishes information which the person ("any natural or legal person;") knows to be false or misleading in any material way; or Section 35(2)(d) appears before an inspector ("a person designated as such under this Act;") for examination pursuant to such requirement and makes a statement which the person ("any natural or legal person;") knows to be false or misleading in any material way, Section 35(3)(a) in case of a natural person ("any natural or legal person;") , imprisonment for a term not exceeding three years or a fine not exceeding one million shillings, or to both; and Section 35(3)(b) in the case of a body corporate a fine not exceeding five million shillings. - 36 Verify source ↗
FINANCIAL REPORTING CENTRE - 36. Obligation of asupervisory bodyand its staff
AI-assisted research summary: Supervisory bodies and self-regulatory bodies and their staff must report any suspicious transaction encountered in the normal course of duties to the Financial Reporting Centre; employees who intentionally fail to report commit an offence with penalties including imprisonment or fines.
Section 36. Obligation of asupervisory bodyand its staff Section 36(1) A supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body and its staff shall report to the Centre ("the Financial Reporting Centre established under;") any suspicious transaction that the supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body or its staff may encounter during the normal course of their duties. Section 36(2) A person ("any natural or legal person;") who as an employee of a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body deliberately or with intention to deceive does not make a report in accordance with this section commits an offence . Section 36(3)(a) in the case of a natural person ("any natural or legal person;") , imprisonment for a term not exceeding three years or a fine not exceeding one million shillings, or to both; and Section 36(3)(b) in the case of a body corporate, a fine not exceeding five million shillings. - 36A Verify source ↗
FINANCIAL REPORTING CENTRE - 36A. Responsibility for supervision of Reporting Institutions
AI-assisted research summary: The Financial Reporting Centre has powers to regulate and supervise reporting institutions; supervisory bodies and self-regulatory bodies must supervise and enforce compliance with the Act, apply their powers to combat money‑laundering, submit reports to the Centre as prescribed, and may use authorised fees to defray related costs.
Section 36A. Responsibility for supervision of Reporting Institutions Section 36A(1) The Centre ("the Financial Reporting Centre established under;") shall have the powers to regulate and supervise all reporting institutions, regarding the application of this Act. Section 36A(2) Subject to subsection (1), each supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body shall be responsible for supervising and enforcing compliance with this Act or any instruction, direction, guideline or rule made pursuant to or in terms of this Act by all reporting institutions regulated or supervised by it and to whom the provision of this Act apply. Section 36A(3) The obligation referred to in subsection (2) shall form part of the legislative mandate of any supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body and shall constitute a core function of that supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") . Section 36A(3A) A supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body shall, in carrying out its mandate under this Act, apply its regulatory and supervisory powers and obligations conferred to it under any written law for purposes of supervision and enforcement of the obligations to combat money laundering ("an offence under any of the provisions of sections,and;") , terrorist financing and proliferation financing. Section 36A(4) Any law which regulates a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body or authorises that supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body to supervise or regulate any reporting institution ("a financial institution and designated non-financial business and profession;") to whom the provisions of this Act apply, shall take account of subsection (2), and a supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body may utilise any fees or charges it is authorised to impose or collect to defray expenditure incurred in performing its obligations under this Act or any order, determination or directive made in terms of this Act. Section 36A(5)(a) in addition to any powers it has under any other Act, exercise any power afforded to it in this Act; Section 36A(5)(b) take any measures it considers necessary or expedient to meet its obligations as imposed by this Act or any order, determination, instruction, directive or rule made in terms of this Act, or achieve the objectives of the Centre ("the Financial Reporting Centre established under;") of this Act; Section 36A(5)(ba) provide information, reports or statistical returns at such intervals as may be prescribed from time to time; Section 36A(5)(ba)(a) provide information, reports or statistical returns at such intervals as may be prescribed from time to time; Section 36A(5)(ba)(b) cease or refrain from engaging in any act, omission or conduct in contravention of this Act; Section 36A(5)(ba)(c) perform such act as may be necessary to remedy alleged non-compliance with this Act; or Section 36A(5)(ba)(d) perform such act as may be necessary to meet any obligation imposed by this Act. Section 36A(5)(c) require a reporting institution ("a financial institution and designated non-financial business and profession;") supervised or regulated by it and to whom, the provisions of this Act apply, to report on that institution's compliance with this Act or any order, determination, instruction, directive or rule made under this Act in the form manner and within the period determined by the supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body ; Section 36A(5)(d) compliance with this Act; Section 36A(5)(d)(i) compliance with this Act; Section 36A(5)(d)(ii) the continued availability of human financial, technological and other resources to ensure compliance with this Act or any order, determination or directive made under this Act; and Section 36A(5)(e) in making a determination in accordance with any Act applicable to it as to whether a person ("any natural or legal person;") is fit and proper to hold office in a reporting institution ("a financial institution and designated non-financial business and profession;") , take into account any involvement, whether directly or indirectly, by that person ("any natural or legal person;") in any non-compliance with this Act or any order, determination, instruction, directive or rule made in terms of this Act, or any involvement in any money laundering ("an offence under any of the provisions of sections,and;") , terrorism financing or proliferation financing activity. Section 36A(6) A supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory body shall submit to the Centre ("the Financial Reporting Centre established under;") , within such period and in such manner, as the Centre ("the Financial Reporting Centre established under;") may prescribe, a written report on any action taken against any reporting institution ("a financial institution and designated non-financial business and profession;") in terms of this Act or any order, determination, directive, instruction, or rule made under this Act. Section 36A(7) The Centre ("the Financial Reporting Centre established under;") and each supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or Self-regulatory bodyshall co-ordinate the exercising of their powers and performance of their functions under this Act to ensure consistent application of the Act, and may for such purpose; enter into a written memorandum of understanding in respect thereof. Section 36A(8) Notwithstanding the provisions of subsection (1) or any other provision of this Act, the Centre ("the Financial Reporting Centre established under;") may require a reporting institution ("a financial institution and designated non-financial business and profession;") to report on that institution's compliance with this Act or any order, determination, instruction, or direction in the manner and within such period as may be determined by the Centre ("the Financial Reporting Centre established under;") . [ Act No. 51 of 2012 , s. 10, Act No. 14 of 2015 , s. 51, Act No. 10 of 2023 , Sch.] - 36B Verify source ↗
FINANCIAL REPORTING CENTRE - 36B. Cooperation and collaboration of supervisory bodies
AI-assisted research summary: Supervisory bodies may cooperate and coordinate with domestic and foreign counterparts to combat money laundering, terrorism financing or proliferation financing, and may share information, conduct inquiries or inspections, appoint investigators on behalf of counterparts, and authorise or facilitate foreign inquiries.
Section 36B. Cooperation and collaboration of supervisory bodies Section 36B(1) A supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") may cooperate and coordinate with domestic and foreign counterparts for purposes of combating money laundering ("an offence under any of the provisions of sections,and;") , terrorism financing or proliferation financing. Section 36B(2)(a) share information and documents with a domestic or foreign counterpart; Section 36B(2)(b) conduct inquiries or undertake onsite inspection on behalf of a domestic or foreign counterpart; Section 36B(2)(c) on behalf of a domestic or foreign counterpart, appoint competent persons to investigate any matter under this Act; Section 36B(2)(d) authorise or facilitate foreign counterparts to undertake inquiries under this Act; Section 36B(3)(a) be kept confidential and may only be disclosed to a third party with the written consent of the supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") providing the information; and Section 36B(3)(b) shall be used only for the specified purpose. - 36C Verify source ↗
FINANCIAL REPORTING CENTRE - 36C. Powers of supervisory bodies
AI-assisted research summary: Supervisory bodies have powers to supervise, inspect, compel information, issue guidelines, impose sanctions, and undertake consolidated supervision over reporting institutions for anti-money laundering, counter-terrorism financing and counter-proliferation-financing compliance.
Section 36C. Powers of supervisory bodies Section 36C(1)(a) to supervise, monitor and ensure compliance with anti- money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing and countering proliferation financing requirements under this Act by reporting institutions regulated or supervised by it; Section 36C(1)(b) to conduct anti- money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing countering proliferation financing and inspections of reporting institutions regulated or supervised by it; Section 36C(1)(c) to compel production of any information or document relevant to monitoring compliance with the anti- money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing and countering proliferation financing requirements of reporting institutions regulated or supervised by it; Section 36C(1)(d) to issue guidelines, directions or rules for combating anti- money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing and countering proliferation facing purposes to reporting institutions regulated or supervised by it; Section 36C(1)(e) through their respective legislation, to impose both monetary and administrative sanctions upon reporting institutions regulated or supervised by it for failure to comply with the anti- money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing and countering proliferation financing requirements; and Section 36C(1)(f) to undertake consolidated supervision for anti- money laundering ("an offence under any of the provisions of sections,and;") , combating terrorism financing and countering proliferation financing purposes of a reporting institution ("a financial institution and designated non-financial business and profession;") and its group. - 36D Verify source ↗
FINANCIAL REPORTING CENTRE - 36D. Risk-based approach
AI-assisted research summary: The Financial Reporting Centre and supervisory bodies must use a risk-based approach when monitoring reporting institutions; the Centre or a supervisory body must review reporting institutions' risk assessments periodically and after major events.
Section 36D. Risk-based approach Section 36D(1) The Centre ("the Financial Reporting Centre established under;") and supervisory bodies shall, in fulfilling their obligation to effectively monitor reporting institutions, use a risk-based approach. Section 36D(2)(a) have a clear understanding of the risks of money laundering ("an offence under any of the provisions of sections,and;") , terrorist financing and proliferation financing at national, sectoral and institutional level; Section 36D(2)(b) have on-site and off-site access to all relevant information on the specific domestic and international risks associated with customers, products and services, delivery channels, geographical location and any other risk factors of the relevant reporting institutions they supervise; and Section 36D(2)(c) the money laundering ("an offence under any of the provisions of sections,and;") , terrorist financing and proliferation financing risks, and the policies internal controls and procedures associated with the business activities of reporting institution ("a financial institution and designated non-financial business and profession;") , as identified by the Centre ("the Financial Reporting Centre established under;") supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") ’s assessment of its profile; Section 36D(2)(c)(i) the money laundering ("an offence under any of the provisions of sections,and;") , terrorist financing and proliferation financing risks, and the policies internal controls and procedures associated with the business activities of reporting institution ("a financial institution and designated non-financial business and profession;") , as identified by the Centre ("the Financial Reporting Centre established under;") supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") ’s assessment of its profile; Section 36D(2)(c)(ii) the risks of money laundering ("an offence under any of the provisions of sections,and;") , terrorist financing and proliferation financing in the country as identified within any information that is made available to the Centre ("the Financial Reporting Centre established under;") or supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") ; and Section 36D(2)(c)(iii) the characteristics of the reporting institution ("a financial institution and designated non-financial business and profession;") , in particular the diversity and number of such institutions and the degree of discretion allowed to a reporting institution ("a financial institution and designated non-financial business and profession;") under the risk-based approach. Section 36D(3) The Centre ("the Financial Reporting Centre established under;") or supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") shall review the assessment of the money laundering ("an offence under any of the provisions of sections,and;") , terrorist financing and proliferation financing risk profile of a reporting institution ("a financial institution and designated non-financial business and profession;") or group, including the risks of non-compliance periodically, and when there are major events or developments in the management and operations of the reporting institution ("a financial institution and designated non-financial business and profession;") or group. [Act No. 10 of 2023 , Sch.] - 37 Verify source ↗
FINANCIAL REPORTING CENTRE - 37. TheCentre’s power to obtain a search warrant
AI-assisted research summary: The Centre or an appropriate law enforcement agency may apply to the High Court for a warrant to enter, search and remove documents from premises of a reporting institution, where specified conditions in the section are met.
Section 37. TheCentre’s power to obtain a search warrant Section 37(1) The Centre ("the Financial Reporting Centre established under;") or the appropriate law enforcement agency, may apply to the High Court for a warrant to enter any premises belonging to or in the possession or control of a reporting institution ("a financial institution and designated non-financial business and profession;") or any officer or employee thereof, and to search the premises and remove any document , material or other thing therein for the purposes of the Centre ("the Financial Reporting Centre established under;") , as ordered by the High Court and specified in the warrant. Section 37(2)(a) the reporting institution ("a financial institution and designated non-financial business and profession;") has failed to keep or produce documents, records, or report on a suspicious transaction, as required by this Act; or Section 37(2)(b) an officer, employee or partner of a reporting institution ("a financial institution and designated non-financial business and profession;") is committing, has committed or is about to commit any offence under this Act. - 38 Verify source ↗
FINANCIAL REPORTING CENTRE - 38. Property tracking and monitoring orders
AI-assisted research summary: Defines property for tracking and monitoring orders to include all monetary instruments and all other real or personal property of every description, whether situated in Kenya or elsewhere, tangible or intangible, and includes interests and legal documents or instruments evidencing title or interest in such property.
Section 38. Property tracking and monitoring orders Section identifying, locating or quantifying that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; or - 39 Verify source ↗
FINANCIAL REPORTING CENTRE - 39. Orders to enforce compliance with obligations under this Act
AI-assisted research summary: Section 39 makes it an offence for any person to fail to comply with obligations under the Act; the Financial Reporting Centre may apply to the High Court for orders to enforce compliance, and the High Court may impose fines (up to five million shillings for individuals and up to tweny-five million shillings for bodies corporate) if a reporting institution fails without reasonable excuse to comply with an order.
Section 39. Orders to enforce compliance with obligations under this Act Section 39(1) A person ("any natural or legal person;") who fails to comply with any obligation provided for under this Act, commits an offence . Section 39(2) The Centre ("the Financial Reporting Centre established under;") may, upon application to the High Court, after satisfying the Court that a reporting institution ("a financial institution and designated non-financial business and profession;") has refused to comply with any obligation, request or requirements under this Act, obtain an order against all or any officers, employees or partners of the reporting institution ("a financial institution and designated non-financial business and profession;") in such terms as the High Court may deem necessary, in order to enforce compliance with such obligation. Section 39(3) In granting the order pursuant to subsection (2), the High Court may order that should the reporting institution ("a financial institution and designated non-financial business and profession;") fail, without reasonable excuse, to comply with all or any provisions of the order, may order that institution, its officers, employees or partners to pay a fine not exceeding five million shillings for an individual and a fine not exceeding tweny-five million shillings for a body corporate. [Act No. 10 of 2023 , Sch.] - 40 Verify source ↗
FINANCIAL REPORTING CENTRE - 40. Constitution of funds
AI-assisted research summary: The Financial Reporting Centre's funds include money appropriated by Parliament, government grants and other legally acquired money; it may accept donations only with prior written approval of the Cabinet Secretary; and when sharing information it must adhere to the data principles in the Data Protection Act (Cap. 411C).
Section 40. Constitution of funds Section 40(1)(a) money appropriated by Parliament for the purposes of the Centre ("the Financial Reporting Centre established under;") ; Section 40(1)(b) any Government grants made to it; Section 40(1)(c) any other money legally acquired by it, provided that the Centre ("the Financial Reporting Centre established under;") may accept donations only with the prior written approval of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") . Section 40(2) The sharing of information by the Centre ("the Financial Reporting Centre established under;") shall be with adherence to the data ("representations, in any form, of information or concepts;") principles set out in the Data Protection Act ( Cap. 411C ). [Act No. 24 of 2019 , 2nd Sch., Act No. 16 of 2021 , s. 10.] - 41 Verify source ↗
FINANCIAL REPORTING CENTRE - 41. Financial year
AI-assisted research summary: The financial year of the Centre is a period of twelve months ending on the thirtieth June of each year.
Section 41. Financial year Section The financial year of the Centre ("the Financial Reporting Centre established under;") shall be a period of twelve months ending on the thirtieth June of each year. - 42 Verify source ↗
FINANCIAL REPORTING CENTRE - 42. Annual estimates
AI-assisted research summary: The Financial Reporting Centre must prepare annual estimates of its revenue and expenditure and obtain Board and Cabinet Secretary approval before the financial year; it may not increase the estimates without the Cabinet Secretary's consent.
Section 42. Annual estimates Section 42(1) At least three months before the commencement of each financial year, the Centre ("the Financial Reporting Centre established under;") shall cause to be prepared estimates of the revenue and expenditure of the Centre ("the Financial Reporting Centre established under;") for that year. Section 42(2)(a) the payment of salaries, allowances and other charges in respect of the staff of the Centre ("the Financial Reporting Centre established under;") ; Section 42(2)(b) the payment of pensions, gratuities and other charges in respect of the staff of the Centre ("the Financial Reporting Centre established under;") ; Section 42(2)(c) the proper maintenance of the buildings and grounds of the Centre ("the Financial Reporting Centre established under;") ; Section 42(2)(d) the maintenance, repair and replacement of the equipment and other property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of the Centre ("the Financial Reporting Centre established under;") . Section 42(3) The annual estimates shall be approved by the Board ("the Anti-Money Laundering Advisory Board established under;") before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") for approval and after the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") ’s approval, the Centre ("the Financial Reporting Centre established under;") shall not increase the annual estimates without the consent of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") . [Act No. 16 of 2021 , s. 11.] - 43 Verify source ↗
FINANCIAL REPORTING CENTRE - 43. Books of accounts, records, audit and reports
AI-assisted research summary: The Financial Reporting Centre must keep proper books and records of its income, expenditure, assets and liabilities, and its accounts must be audited and reported under the Public Audit Act.
Section 43. Books of accounts, records, audit and reports Section 43(1) The Centre ("the Financial Reporting Centre established under;") shall cause to be kept proper books of accounts and records of accounts of the income, expenditure, assets and liabilities of the Centre ("the Financial Reporting Centre established under;") . Section 43(2)(a) a statement of income and expenditure during that period; Section 43(2)(b) a statement of the assets and liabilities of the Centre ("the Financial Reporting Centre established under;") on the last day of that year. Section 43(3) The accounts of the Centre ("the Financial Reporting Centre established under;") shall be audited and reported upon in accordance with the Public Audit Act ( Cap. 412B ).
Part IV
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION
- 44 Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 44. Monitoring and Report by institutions
AI-assisted research summary: Reporting institutions must monitor and report suspicious or specified transactions to the Financial Reporting Centre, keep written findings, retain those findings for seven years, file cash transaction reports at or above the prescribed Fourth Schedule amount, and comply with specified documentation and timelines; lawyers and similar legal professionals have limited reporting duties where professional secrecy or privilege applies.
Section 44. Monitoring and Report by institutions Section 44(1) A reporting institution ("a financial institution and designated non-financial business and profession;") shall monitor on an ongoing basis all complex, unusual, suspicious, large or such other transactions as may be specified in the regulations ("regulations made under this Act;") , whether completed or not, and shall pay attention to all unusual patterns of transactions, and to insignificant but periodic patterns of transactions which have no apparent economic or lawful purpose as stipulated in the regulations ("regulations made under this Act;") . Section 44(2) Upon suspicion that any of the transactions or activities described in subsection (1) or any other transaction or activity could constitute or be related to money laundering ("an offence under any of the provisions of sections,and;") , terrorism financing, proliferation financing or to the proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") , a reporting institution ("a financial institution and designated non-financial business and profession;") shall report the suspicious or unusual transaction or activity to the Centre ("the Financial Reporting Centre established under;") in the specified manner within two days after the suspicion arose. Section 44(3) Notwithstanding subsections (1) and (2), a reporting institution ("a financial institution and designated non-financial business and profession;") shall report all suspicious transactions, including attempted transactions to the Centre ("the Financial Reporting Centre established under;") . Provided that lawyers, notaries and other independent legal professionals may submit reports under this subsection through the Law Society of Kenya which shall establish reporting channels to the Centre ("the Financial Reporting Centre established under;") . Section 44(3A) Lawyers, notaries and other independent legal professionals are not required to report suspicious transactions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege. Section 44(3B)(a) in the course of ascertaining the legal position of their client; or Section 44(3B)(b) in performing their task of defending or representing that client in, or concerning judicial, administrative, arbitration or mediation proceedings. Section 44(3C) The Law Society of Kenya and the Centre ("the Financial Reporting Centre established under;") shall establish appropriate mechanisms to cooperate for exchange of information relating to suspicious transaction reporting and supervision. Section 44(4) A financial institution shall as far as possible examine the background and purpose of the transactions referred in subsections (1) and (2) and shall set out its findings in writing. Section 44(5) A reporting institution ("a financial institution and designated non-financial business and profession;") shall retain its findings under subsection (4) for at least seven years from the date of the making thereof, and shall make them available to the Centre ("the Financial Reporting Centre established under;") , and to its supervisory body ("a functionary or institution specified in the First Schedule or such other functionary or institution as may be prescribed by the Cabinet Secretary;") or auditors. Section 44(6) Despite the provisions of this section, a reporting institution ("a financial institution and designated non-financial business and profession;") shall file reports on all cash transactions equivalent to or exceeding the amount prescribed in the Fourth Schedule, whether they appear to be suspicious or not. Section 44(7) A report under subsections (2) and (3) shall be accompanied by copies of all documentation directly relevant to the suspicion and the grounds on which it is based. Section 44(8)(a) particulars or further particulars of any matter concerning the suspicion to which the report relates and the grounds upon which it is based; and Section 44(8)(b) copies of all available documents concerning such particulars or further particulars. Section 44(9) When a person ("any natural or legal person;") receives a request under subsection (8), that person ("any natural or legal person;") shall furnish the Centre ("the Financial Reporting Centre established under;") with the required particulars or further particulars and copies of documents to the extent that such particulars or documents are available to that person ("any natural or legal person;") within a reasonable time, but in any case not later than thirty days from the date of the receipt of the request: Provided that the Centre ("the Financial Reporting Centre established under;") may, upon written application by the person ("any natural or legal person;") responding to a request and with the approval of the Director-General, grant the person ("any natural or legal person;") an extension of the time within which to respond. Section 44(10) A person ("any natural or legal person;") who is a party to, or is acting on behalf of, a person ("any natural or legal person;") who is engaged in a transaction in respect of which he forms a suspicion which, in his opinion, should be reported under subsections (2) or (3), may continue with and complete that transaction and shall ensure that all records relating to that transaction are kept, and that all reasonable steps are taken to discharge the obligation under this section. Section 44(11) For purposes of this section, the Centre ("the Financial Reporting Centre established under;") shall specify the manner in which suspicious transaction, activity reports and cash transaction reports shall be filed. [ Act No. 51 of 2012 , s. 11, Act No. 3 of 2017 , s. 16, Act No. 10 of 2023 , Sch.] - 44A Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 44A. Intervention byCentre
AI-assisted research summary: When calculating the period of five working days in subsection (1), Saturdays, Sundays and proclaimed public holidays are not taken into account.
Section 44A. Intervention byCentre Section 44A(1)(a) constitute money laundering ("an offence under any of the provisions of sections,and;") , terrorism financing, proliferation financing and related activities; or Section 44A(1)(b) the proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") or proceeds of unlawful activities or property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is connected to the proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") or unlawful activities and related activities; or Section 44A(1)(b)(i) the proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") or proceeds of unlawful activities or property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is connected to the proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") or unlawful activities and related activities; or Section 44A(1)(b)(ii) the proceeds of, or property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is connected to an offence relating to the financing of terrorism, proliferation financing and related activities; or Section 44A(1)(b)(iii) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") owned or controlled by or on behalf of, or at the direction of a person ("any natural or legal person;") or entity identified or designated pursuant to the Prevention of Terrorism (Implementation of the United Nations Security Council Resolutions on Suppression of Terrorism) Regulations (sub.leg) and related activities, Section 44A(2) For the purposes of calculating the period of five working days in subsection (1), Saturdays, Sundays and proclaimed public holidays shall not be taken into account . [Act No. 16 of 2021 , s. 12, Act No. 10 of 2023 , Sch.] - 45 Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 45. Obligation to verify customer identity
AI-assisted research summary: Reporting institutions must verify customer identity and undertake customer due diligence based on materiality and risk, using reliable identity documentation and verifying beneficial owners.
Section 45. Obligation to verify customer identity Section 45(1)(a) any applicant seeking to enter into a business relationship with it or to carry out a transaction or series of transactions with it; or Section 45(1)(b) a customer whether permanent or occasional, by taking reasonable measures to establish the true identity of that person ("any natural or legal person;") by requiring the applicant or customer to produce an official record reasonably capable of establishing the true identity of the applicant or customer. Section 45(1A)(a) a certificate of birth; Section 45(1A)(a)(i) a certificate of birth; Section 45(1A)(a)(ii) a national identity card; Section 45(1A)(a)(iii) passport; Section 45(1A)(a)(iv) a driver’s licence; or Section 45(1A)(a)(v) any other official means of identification as may be prescribed; Section 45(1A)(b) evidence of registration or incorporation; Section 45(1A)(b)(i) evidence of registration or incorporation; Section 45(1A)(b)(ii) the Act establishing the body corporate; Section 45(1A)(b)(iii) a corporate resolution authorising a person ("any natural or legal person;") to act on behalf of the body corporate together with a copy of the latest annual return submitted in respect of the body corporate in accordance with the law under which it is established; or Section 45(1A)(b)(iv) any other item as may be prescribed; Section 45(1A)(c) in the case of a government department, a letter from the accounting officer ("an accounting officer appointed under section 17 of the Government Financial Management Act (Repealed);") and the relevant authorization from the National Treasury. Section 45(2) A reporting institution ("a financial institution and designated non-financial business and profession;") shall undertake customer due diligence on the existing customers or clients on the basis of materiality and risk and taking into account whether the customer due diligence measures have previously been undertaken and the adequacy of data ("representations, in any form, of information or concepts;") obtained. Section 45(3)(a) a continuing business relationship; or Section 45(3)(b) in the absence of that relationship, any transaction, Section 45(4)(a) to establish the true identity of the person ("any natural or legal person;") on whose behalf or for whose ultimate benefit the applicant may be acting in the proposed transaction, whether as trustee, nominee, agent or otherwise; and Section 45(4)(b) to identify and verify the identity of the beneficial owner using the relevant information or data ("representations, in any form, of information or concepts;") obtained from a reliable source. Section 45(5)(i) whether the applicant is a person ("any natural or legal person;") based or incorporated in a country in which there are in force applicable provisions to prevent the use of the financial system for the purpose of money laundering ("an offence under any of the provisions of sections,and;") , terrorism financing or proliferation financing; and Section 45(5)(ii) any custom or practice as may, from time to time, be current in the relevant field of business. Section 45(6) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") may, by notice in the Gazette , list the countries to which subsection (5)(i) applies. Section 45(7) Nothing in this section shall require the production of any evidence of identity where there is a transaction or a series of transactions taking place in the course of a business relationship, in respect of which the applicant has already produced satisfactory evidence of identity. [Act No. 16 of 2021 , s. 13, Act No. 10 of 2023 , Sch.] - 45A Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 45A. Higher risk countries
AI-assisted research summary: Section 45A identifies and describes measures relating to higher risk countries for money laundering and terrorism financing.
Section 45A. Higher risk countries Section 45A(1)(a) the Financial Action Task Force (FATF) as having strategic money laundering ("an offence under any of the provisions of sections,and;") and combating financing of terrorism deficiencies, that have not made sufficient progress in addressing the said deficiencies or have not committed to an action plan to address the deficiencies; or Section 45A(1)(b) the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") as having ongoing substantial money laundering ("an offence under any of the provisions of sections,and;") and terrorism financing risks. Section 45A(2)(a) when called upon to do so by the Financial Action Taskforce; Section 45A(2)(b) independently of any call by the Financial Action Taskforce to do so; or Section 45A(2)(c) as advised by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") . Section 45A(3)(a) limiting or terminating business relationships or financial transactions with natural and legal persons, legal arrangements, or financial institutions located in the concerned countries; Section 45A(3)(b) prohibiting reliance on third parties located in the concerned countries to conduct customer due diligence; Section 45A(3)(c) applying enhanced due diligence measures on correspondent banking relationships with financial institutions located in the concerned countries; Section 45A(3)(d) when considering the establishment of subsidiaries or branches or representative offices of financial institutions from the concerned countries, take into account whether the financial institution is based in countries identified as having higher money laundering ("an offence under any of the provisions of sections,and;") or terrorism financing risks or inadequate money laundering ("an offence under any of the provisions of sections,and;") or terrorism financing systems; Section 45A(3)(e) submit a report listing customers, both natural and legal persons, and legal arrangements, originating from the higher risk countries to the Financial Reporting Centre ("the Financial Reporting Centre established under;") on an annual basis; and Section 45A(3)(f) any other measures as may be specified by the Financial Reporting Centre ("the Financial Reporting Centre established under;") . Section 45A(4)(a) any high-risk country identified pursuant to this section; Section 45A(4)(b) any countermeasures which are applicable to the country; Section 45A(4)(c) the concerns regarding the weaknesses in the anti- money laundering ("an offence under any of the provisions of sections,and;") , countering of terrorism financing, countering of proliferation financing systems of that country; and Section 45A(4)(d) any publicly available information published by the Financial Action Task Force (FATF) on any jurisdiction which has been identified by it as having significant or strategic deficiencies in its anti- money laundering ("an offence under any of the provisions of sections,and;") , countering of terrorism financing and countering of proliferation financing measures. - 46 Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 46. Obligation to establish and maintain customer records
AI-assisted research summary: Reporting institutions must keep and maintain detailed customer transaction records (domestic and international), record identity evidence when collected, ensure accounts bear the correct account holder name, record specified transaction details, and retain records for at least seven years or longer if required by the Centre.
Section 46. Obligation to establish and maintain customer records Section 46(1)(a) records of all transactions, both domestic and international, in accordance with the requirements of subsection (3); and Section 46(1)(b) where evidence of a person ("any natural or legal person;") ’s identity is obtained in accordance with section 45 , a record that indicates the nature of the evidence obtained, and which comprises either a copy of the evidence or such information as would enable a copy of it to be obtained. Section 46(2) A reporting institution ("a financial institution and designated non-financial business and profession;") shall ensure that its customer accounts are kept in the correct name of the account holder. Section 46(3)(a) conducting the transaction; or Section 46(3)(a)(i) conducting the transaction; or Section 46(3)(a)(ii) on whose behalf the transaction is being conducted, as well as the method used by the reporting institution ("a financial institution and designated non-financial business and profession;") to verify the identity of that person ("any natural or legal person;") ; Section 46(3)(b) the nature, time and date of the transaction; Section 46(3)(c) the type and amount of currency involved; Section 46(3)(d) the type and identifying number of any account with the reporting institution ("a financial institution and designated non-financial business and profession;") involved in the transaction; Section 46(3)(e) if the transaction involves a negotiable instrument other than currency, the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and date of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument; Section 46(3)(f) the name and address of the reporting institution ("a financial institution and designated non-financial business and profession;") and of the officer, employee or agent of the reporting institution ("a financial institution and designated non-financial business and profession;") who prepared the record. Section 46(4) The records required under subsection (1) shall be kept by the reporting institution ("a financial institution and designated non-financial business and profession;") for a period of at least seven years or such longer period as the Centre ("the Financial Reporting Centre established under;") may in writing require, from the date the relevant business or transaction was completed or following the termination of an account or business relationship, without prejudice to any other records required to be kept by or under any other written law, and shall be made available on a timely basis to competent authorities. [ Act No. 51 of 2012 , s. 12, Act No. 10 of 2023 , Sch.] - 47 Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 47. Obligation to establish and maintain internal reporting procedures
AI-assisted research summary: Employees must identify the person or persons to whom they should report any information arising in the course of employment that gives rise to knowledge or suspicion that another person is engaged in money laundering or proliferation financing.
Section 47. Obligation to establish and maintain internal reporting procedures Section identify persons to whom an employee is to report any information which comes to the employee’s attention in the course of employment and which gives rise to knowledge or suspicion by the employee that another person ("any natural or legal person;") is engaged in money laundering ("an offence under any of the provisions of sections,and;") and proliferation financing; - 47A Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 47A. Obligation to register with theCentre
AI-assisted research summary: Reporting institutions must register with the Financial Reporting Centre and provide required particulars; the Centre must keep a register; institutions must notify changes within ninety days; failure to register is an offence.
Section 47A. Obligation to register with theCentre Section 47A(1) All reporting institutions to which this Act applies shall register with the Centre ("the Financial Reporting Centre established under;") within such period and in such manner as the Centre ("the Financial Reporting Centre established under;") may prescribe. Section 47A(2) The registration of a reporting institution ("a financial institution and designated non-financial business and profession;") under sub section (1) shall be accompanied by such particulars as the Centre ("the Financial Reporting Centre established under;") may require. Section 47A(3) The Centre ("the Financial Reporting Centre established under;") shall keep and maintain a register of every reporting institution ("a financial institution and designated non-financial business and profession;") registered in terms of this section. Section 47A(4) A reporting institution ("a financial institution and designated non-financial business and profession;") shall notify the Centre ("the Financial Reporting Centre established under;") , in writing, of any changes to the particulars furnished in terms of this section within ninety days of such change. Section 47A(5) A reporting institution ("a financial institution and designated non-financial business and profession;") that fails to register with the Centre ("the Financial Reporting Centre established under;") as required by subsection (1) commits an offence . [ Act No. 51 of 2012 , s. 13] - 48 Verify source ↗
ANTI–MONEY LAUNDERING OBLIGATIONS OF A REPORTING INSTITUTION - 48. Application of reporting obligations
AI-assisted research summary: Applies reporting obligations to buying and selling of real estate.
Section 48. Application of reporting obligations Section buying and selling of real estate;
Part IX
GENERAL PROVISIONS RELATING TO PRESERVATION AND FORFEITURE OF PROPERTY
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GENERAL PROVISIONS RELATING TO PRESERVATION AND FORFEITURE OF PROPERTY - 100. Offence may form the basis of multiple orders
AI-assisted research summary: A preservation order or a forfeiture order made on the basis of an offence does not prevent making additional preservation or forfeiture orders for the same offence.
Section 100. Offence may form the basis of multiple orders Section The fact that a preservation order or a forfeiture order has been made on the basis of an offence in which a specific person ("any natural or legal person;") has been involved shall not prevent the making of another or other preservation orders or forfeiture orders on the basis of the same offence . - 101 Verify source ↗
GENERAL PROVISIONS RELATING TO PRESERVATION AND FORFEITURE OF PROPERTY - 101. Application of part to deceased estates
AI-assisted research summary: Notices or property references in this Part for a deceased person are to be treated as given to, or referencing, the deceased’s estate administrator and the property the deceased held immediately before death.
Section 101. Application of part to deceased estates Section 101(1) Any notice authorised or required to be given to a person ("any natural or legal person;") under this Part shall, in the case of a deceased person ("any natural or legal person;") , be sufficiently given to the administrator of the deceased’s estate. Section 101(2) A reference in this Part to the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of a person ("any natural or legal person;") shall, in the case of a person ("any natural or legal person;") who is deceased, be a reference to property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that the deceased held immediately before his death. Section 101(3)(a) in respect of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which forms part of a deceased’s estate; and Section 101(3)(b) on evidence adduced concerning the activities of a deceased person ("any natural or legal person;") . - 102 Verify source ↗
GENERAL PROVISIONS RELATING TO PRESERVATION AND FORFEITURE OF PROPERTY - 102. Effect of death of joint owner of preservedproperty
AI-assisted research summary: If a joint owner dies after a preservation order is made, the death does not vest the interest in the surviving joint owner(s) while the order remains in force, and the preservation order continues to apply to the interest as if the person had not died.
Section 102. Effect of death of joint owner of preservedproperty Section 102(1) If a person ("any natural or legal person;") has an interest in property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") as a joint owner, his death after a preservation order is made in respect of the interest does not, while the order is in force, operate to vest the interest in the surviving joint owner or owners and the preservation order continues to apply to the interest as if the person ("any natural or legal person;") had not died. Section 102(2) A forfeiture order made in respect of that interest applies as if the order took effect in relation to the interest immediately before the person ("any natural or legal person;") died. Section 102(3) Subsection (1) does not apply to an interest in property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") if a preservation order ceases to apply to that interest without a forfeiture order being made in respect of that interest.
Part V
THE ANTI-MONEY LAUNDERING ADVISORY BOARD
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THE ANTI-MONEY LAUNDERING ADVISORY BOARD - 49. The Anti-Money LaunderingAdvisory Board
AI-assisted research summary: Section 49 establishes the Anti-Money Laundering Advisory Board, lists its members and appointing authorities, allows certain members to attend by representative, permits co-option of experts, and sets a three-year term (with one possible re-appointment) for private-sector appointees under subsection (1)(h).
Section 49. The Anti-Money LaunderingAdvisory Board Section 49(1)(a) the Chairperson, who shall be appointed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") from among members of the Board ("the Anti-Money Laundering Advisory Board established under;") appointed under paragraphs (f) to (h); Section 49(1)(b) the Principal Secretary in the Ministry for the time being responsible for finance; Section 49(1)(c) the Attorney-General; Section 49(1)(d) the Governor, Central Bank of Kenya; Section 49(1)(e) the Inspector-General of Police; Section 49(1)(f) the Chairperson, Kenya Bankers’ Association; Section 49(1)(g) the Chief Executive Officer, Institute of Certified Public Accountants of Kenya; Section 49(1)(h) two other persons appointed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") from the private sector who shall have knowledge and expertise in matters relating to money laundering ("an offence under any of the provisions of sections,and;") ; Section 49(1)(ha) the Director-General of the National Intelligence Service; Section 49(1)(hb) the Director, Asset Recovery Agency ("the Assets Recovery Agency established under(1);") ; and Section 49(1)(i) the Director-General, who shall be the secretary. Section 49(2) The members under paragraphs (b) to (i) may attend in person ("any natural or legal person;") or through a designated representative. Section 49(3) A person ("any natural or legal person;") appointed under subsection (1)(h) shall hold office for a term of three years but shall be eligible for re-appointment for one further term of not more than three years. Section 49(4) In deliberation of a matter, the Board ("the Anti-Money Laundering Advisory Board established under;") may co-opt such other persons as appear to it to have special knowledge or experience in anti- money laundering ("an offence under any of the provisions of sections,and;") . [Act No. 3 of 2017 , s. 17, Act No. 16 of 2021 , s. 15.] - 50 Verify source ↗
THE ANTI-MONEY LAUNDERING ADVISORY BOARD - 50. Functions of theBoard
AI-assisted research summary: The Financial Reporting Centre must provide administrative support and sufficient resources to the Anti-Money Laundering Advisory Board to enable it to perform its functions effectively.
Section 50. Functions of theBoard Section 50(1)(a) policies, best practices and related activities to identify proceeds of crime or proceeds of unlawful activities and to combat money laundering ("an offence under any of the provisions of sections,and;") activities; Section 50(1)(a)(i) policies, best practices and related activities to identify proceeds of crime or proceeds of unlawful activities and to combat money laundering ("an offence under any of the provisions of sections,and;") activities; Section 50(1)(a)(ii) the exercise of the powers conferred to the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") under this Act. Section 50(1)(b) advise the Centre ("the Financial Reporting Centre established under;") generally on its functions and the exercise of its powers under this Act; Section 50(1)(c) act as a forum in which the Centre ("the Financial Reporting Centre established under;") , associations representing categories of reporting institutions, state organs and supervisory bodies can consult one another on anti- money laundering ("an offence under any of the provisions of sections,and;") developments, concerns and initiatives; Section 50(1)(d) to perform any other duty as may be prescribed under this Act. Section 50(2) The Centre ("the Financial Reporting Centre established under;") shall provide administrative support and sufficient resources to the Board ("the Anti-Money Laundering Advisory Board established under;") to enable it perform its functions effectively. [ Act No. 3 of 2017 , s. 18] - 51 Verify source ↗
THE ANTI-MONEY LAUNDERING ADVISORY BOARD - 51. Conduct of business of theBoard
AI-assisted research summary: The Board must conduct its business and affairs in accordance with the provisions of the Fifth Schedule; but, subject thereto, the Board may regulate its own procedure.
Section 51. Conduct of business of theBoard Section The business and affairs of the Board ("the Anti-Money Laundering Advisory Board established under;") shall be conducted in accordance with the provisions of the Fifth Schedule but subject thereto, the Board ("the Anti-Money Laundering Advisory Board established under;") may regulate its own procedure.
Part VI
THE ASSETS RECOVERY AGENCY
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THE ASSETS RECOVERY AGENCY - 52. Definitions applicable to Parts VI-XII
AI-assisted research summary: Defines key terms used in Parts VI–XII, including "any natural or legal person", the scope of "property", what counts as "proceeds of crime", and when a person "will have benefited from an offence."
Section 52. Definitions applicable to Parts VI-XII Section 52(1)(a) if the estate of that person ("any natural or legal person;") has been sequestrated, also to the trustees of his estate; or Section 52(1)(a)(i) if the estate of that person ("any natural or legal person;") has been sequestrated, also to the trustees of his estate; or Section 52(1)(a)(ii) if the person ("any natural or legal person;") is a company or other legal entity which is being wound up, also to the liquidator thereof; Section 52(1)(b) a person ("any natural or legal person;") who transfers property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") to another person ("any natural or legal person;") shall be construed as a reference to a person ("any natural or legal person;") who transfers or grants to any other person ("any natural or legal person;") any interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 52(1)(c) anything received in connection with an offence shall be construed as a reference also to anything received as a result of and in connection with the commission of that offence . Section 52(2) For the purposes of Parts VI to XII, a person ("any natural or legal person;") will have benefited from an offence if that person ("any natural or legal person;") has at any time, whether before or after the commencement of this Act, received or retained any proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") . - 53 Verify source ↗
THE ASSETS RECOVERY AGENCY - 53. TheAgencyand its Director
AI-assisted research summary: Section 53 establishes the Assets Recovery Agency's capacities, and sets appointment, term and qualification requirements for the Agency Director, as well as staff and service-arrangement powers subject to Attorney‑General approval.
Section 53. TheAgencyand its Director Section 53(1)(a) suing and being sued; Section 53(1)(b) holding and alienating movable and immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 53(1)(c) borrowing and lending money; Section 53(1)(d) doing and performing all such other acts or things as may be lawfully done by a body corporate. Section 53(2) The Attorney-General shall upon recommendation by the Advisory Board ("the Asset Recovery Advisory Board established under;") appoint a fit, competent and proper person ("any natural or legal person;") to be the Director of the Agency ("the Assets Recovery Agency established under(1);") (hereinafter referred to as the " Agency Director ("the Director of the Agency appointed under(2);") "). Section 53(2A) The Agency Director ("the Director of the Agency appointed under(2);") shall hold office for a term of four years and shall be eligible for re-appointment for one further term of four years. Section 53(3)(a) hold a degree in law, finance, accounting or any other relevant degree from a university recognised in Kenya; Section 53(3)(b) have at least fifteen years work experience, of which at least five shall be in senior management; Section 53(3)(c) meet such other requirements that may be specified by the Advisory Board ("the Asset Recovery Advisory Board established under;") . Section 53(4) The Agency Director ("the Director of the Agency appointed under(2);") may, with the approval of the Attorney-General, obtain such number of staff on secondment and on terms and conditions of service as may be approved by the Attorney-General, and may make such arrangements for the provision of services, as he considers appropriate for or in connection with the exercise of his functions. Section 53(5)(a) a member of staff of the Agency ("the Assets Recovery Agency established under(1);") , or Section 53(5)(b) a person ("any natural or legal person;") providing services under arrangements made by the Agency Director ("the Director of the Agency appointed under(2);") , - 53A Verify source ↗
THE ASSETS RECOVERY AGENCY - 53A. Staff of theAgency
AI-assisted research summary: The Assets Recovery Agency may appoint staff with Attorney‑General approval; must set up a social security scheme with Cabinet Secretary for finance approval; investigators and the Director have police-like powers; counsel have State Counsel privileges; transferred public officers become Agency staff; the Agency may make regulations with Advisory Board approval.
Section 53A. Staff of theAgency Section 53A(1) Despite the provisions of section 53 , the agency may, for the proper discharge of its functions, appoint professional and technical staff and other staff, upon such terms and conditions as the Attorney-General, in consultation with the Salaries Remuneration Commission and the Advisory Board, approve. Section 53A(2) The staff referred to in subsection (1) may include deputy directors, assistant directors, forensic and financial investigators, asset managers and other staff as the Agency ("the Assets Recovery Agency established under(1);") may determine. Section 53A(3)(a) that asset recovery falls in a strategic sector in the administration of justice process of the country and the nature of the service entailed requires commensurate compensation; and Section 53A(3)(b) that the nature of the operations of the Agency ("the Assets Recovery Agency established under(1);") requires probity, integrity and incorruptibility. Section 53A(4) The Agency ("the Assets Recovery Agency established under(1);") shall, with the approval of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") for finance, establish a suitable social security scheme for the Agency Director ("the Director of the Agency appointed under(2);") and staff of the Agency ("the Assets Recovery Agency established under(1);") . Section 53A(5) For the purposes of their functions under the Act, the Agency Director ("the Director of the Agency appointed under(2);") , certified forensic and financial investigators, shall have all the powers, privileges and immunities of a police officer in addition to any other powers they may have under the Act. Section 53A(6) Any public officer who is transferred or seconded to the Agency ("the Assets Recovery Agency established under(1);") under section 53 (4) shall be regarded as a member of staff of the Agency and subject to the control and direction of the Agency. Section 53A(6A) For purposes of carrying out their functions under this Act, the Agency ("the Assets Recovery Agency established under(1);") ’s Counsel shall have the same privileges as State Counsel under the Office of the Attorney-General or the ministry or department for the time being dealing with matters related to justice, in addition to any other powers they may have under this Act. Section 53A(7) The Agency ("the Assets Recovery Agency established under(1);") may, with the approval of the Advisory Board ("the Asset Recovery Advisory Board established under;") , make regulations ("regulations made under this Act;") for the better management, administration and operations of the Agency ("the Assets Recovery Agency established under(1);") . [ Act No. 3 of 2017 , s. 20, Act No. 16 of 2021 , s. 17.] - 54 Verify source ↗
THE ASSETS RECOVERY AGENCY - 54. Functions and powers of theAgency
AI-assisted research summary: The Assets Recovery Agency must implement Parts VII–XII and exercise the powers set out there; it also has all powers necessary or expedient to perform its functions.
Section 54. Functions and powers of theAgency Section 54(1) The functions of the Agency ("the Assets Recovery Agency established under(1);") shall be to implement the provisions of Parts VII to XII inclusive and to exercise all powers set forth therein. Section 54(1A) Deleted by ActNo. 15 of 2017, s. 60. Section 54(2) The Agency ("the Assets Recovery Agency established under(1);") shall have all the powers necessary or expedient for the performance of its functions. [Act No. 3 of 2017 , s. 21, Act No. 15 of 2017 , s. 60.] - 54A Verify source ↗
THE ASSETS RECOVERY AGENCY - 54A. Funds of theAgency
AI-assisted research summary: The National Assembly must allocate adequate funds to the Assets Recovery Agency; the Agency must disclose grants annually, must not accept conditioned grants, the Agency Director must account for state monies, and recovered funds are generally retained for the Agency rather than paid into the Consolidated Fund.
Section 54A. Funds of theAgency Section 54A(1) The National Assembly shall allocate adequate funds to the Agency ("the Assets Recovery Agency established under(1);") to enable the Agency ("the Assets Recovery Agency established under(1);") perform its functions under this Act and any other written law and the budget shall be a separate vote. Section 54A(2)(a) monies provided for by Parliament for the purposes of the Agency ("the Assets Recovery Agency established under(1);") ; Section 54A(2)(b) not more than five percent of the total proceeds recovered or realized from any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") seized or forfeited to the Government, as may be prescribed by the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") ; Section 54A(2)(c) such monies or assets as may accrue to the Agency ("the Assets Recovery Agency established under(1);") in the course of the exercise of its powers or the performance of its functions under this Act; and Section 54A(2)(d) all monies from any other source provided, donated or granted to the Agency ("the Assets Recovery Agency established under(1);") towards the achievement of the objects of the Agency ("the Assets Recovery Agency established under(1);") . Section 54A(3) The Agency ("the Assets Recovery Agency established under(1);") shall not accept any grant, gift, donation or bequests made on condition that the Agency ("the Assets Recovery Agency established under(1);") performs any function or discharges any duty or obligation other than duties under the Constitution or this Act. Section 54A(4) The Agency ("the Assets Recovery Agency established under(1);") shall disclose any grants, gifts, donations or bequests made to it in each financial year. Section 54A(5) The Agency Director ("the Director of the Agency appointed under(2);") shall, subject to the law, be charged with the responsibility of accounting for state monies received or paid out or on account of the Agency ("the Assets Recovery Agency established under(1);") . Section 54A(6) The receipts, earnings or accounts of the funding and balance of the funding at the close of each financial year, shall not be paid into the Consolidated Fund ("the Criminal Assets Recovery Fund established under;") , but shall be retained for the purposes of the Agency ("the Assets Recovery Agency established under(1);") . [ Act No. 3 of 2017 , s. 22, Act No. 16 of 2021 , s. 18.] - 54B Verify source ↗
THE ASSETS RECOVERY AGENCY - 54B. Bank accounts
AI-assisted research summary: The Agency shall open and maintain such bank accounts as are necessary for the exercise of the functions of the Agency.
Section 54B. Bank accounts Section The Agency ("the Assets Recovery Agency established under(1);") shall open and maintain such bank accounts as are necessary for the exercise of the functions of the Agency ("the Assets Recovery Agency established under(1);") . [ Act No. 3 of 2017 , s. 22] - 54C Verify source ↗
THE ASSETS RECOVERY AGENCY - 54C. Estimates of expenditure
AI-assisted research summary: Sets the Agency's financial year, requires the Agency to prepare annual expenditure estimates within three months before the financial year, lists elements the estimates must cover (salaries, pensions, maintenance, training, reserve funds), requires the Advisory Board to review and may alter and forward the estimates to the National Assembly for approval.
Section 54C. Estimates of expenditure Section 54C(1) The financial year of the Agency ("the Assets Recovery Agency established under(1);") shall be the period of twelve months beginning first July and ending on the thirtieth June in each year. Section 54C(2) The Agency ("the Assets Recovery Agency established under(1);") shall within three months before the commencement of the financial year, prepare annual estimates of the expenditure of the Agency ("the Assets Recovery Agency established under(1);") for that financial year. Section 54C(3)(a) the payment of salaries, allowances and other charges in respect of the Agency Director ("the Director of the Agency appointed under(2);") and other staff of the Agency ("the Assets Recovery Agency established under(1);") ; Section 54C(3)(b) the payment of pensions, gratuities and other charges and in respect of benefits which are payable out of the funds of the Agency ("the Assets Recovery Agency established under(1);") ; Section 54C(3)(c) the maintenance of the buildings and grounds of the Agency ("the Assets Recovery Agency established under(1);") ; Section 54C(3)(d) the funding of training, research and development of activities of the Agency ("the Assets Recovery Agency established under(1);") ; and Section 54C(3)(e) the creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations, equipment and in respect of such other matters as the Agency ("the Assets Recovery Agency established under(1);") may deem expedient. Section 54C(4) The annual estimates shall make provisions for all estimated expenditure of the Agency ("the Assets Recovery Agency established under(1);") for the financial year to which they relate, including of reserve fund to provide for contingency in the event of an unforeseen increase in expenditure and other emergencies not contemplated at the time of making the estimates. Section 54C(5) The Advisory Board ("the Asset Recovery Advisory Board established under;") shall review the estimates forwarded under subsections (2) and (3) and may make such alterations thereto as it may consider necessary, and shall forward the same to the National Assembly for approval. Section 54C(6) Upon approval of the estimates by the National Assembly, all monies from time to time required for the purposes of this Act shall be paid from the Consolidated Fund ("the Criminal Assets Recovery Fund established under;") into the Agency ("the Assets Recovery Agency established under(1);") 's bank account . [ Act No. 3 of 2017 , s. 22, Act No. 16 of 2021 , s. 19.] - 54D Verify source ↗
THE ASSETS RECOVERY AGENCY - 54D. Accounts and audit
AI-assisted research summary: The Agency must keep proper books and records of account for its income, expenditure, assets and liabilities.
Section 54D. Accounts and audit Section 54D(1) The Agency ("the Assets Recovery Agency established under(1);") shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Agency ("the Assets Recovery Agency established under(1);") . Section 54D(2)(a) statement of the income and expenditure of the Agency ("the Assets Recovery Agency established under(1);") during that year; and Section 54D(2)(b) statement of the assets and liabilities of the Agency ("the Assets Recovery Agency established under(1);") on the last day of that financial year. Section 54D(3) The annual accounts of the Agency ("the Assets Recovery Agency established under(1);") shall be prepared, audited and reported upon in accordance with the provisions of the Constitution and the Public Audit Act ( Cap. 412B ). [ Act No. 3 of 2017 , s. 22] - 54E Verify source ↗
THE ASSETS RECOVERY AGENCY - 54E. Annual reports
AI-assisted research summary: The Assets Recovery Agency must, within four months after each financial year ends, report on its activities and submit that report to the Attorney-General; the Attorney-General must, within fourteen days of receipt, submit the report to the President.
Section 54E. Annual reports Section 54E(1) The Agency ("the Assets Recovery Agency established under(1);") shall within four months after the end of each financial year, make a report on its activities and operations during the financial year, and submit the report to the Attorney-General. Section 54E(2) The Attorney- General shall within fourteen days after receipt of the report from the Agency ("the Assets Recovery Agency established under(1);") , submit the report to the President. [ Act No. 3 of 2017 , s. 22] - 54F Verify source ↗
THE ASSETS RECOVERY AGENCY - 54F. The common seal of theAgency
AI-assisted research summary: The Agency Director has the power to determine the device of the Agency's common seal, to direct its custody, and to order its use.
Section 54F. The common seal of theAgency Section 54F(1) The common seal of the Agency ("the Assets Recovery Agency established under(1);") shall be such device as may be determined by the Agency Director ("the Director of the Agency appointed under(2);") . Section 54F(2) The common seal of the Agency ("the Assets Recovery Agency established under(1);") shall be kept in such custody as the Agency Director ("the Director of the Agency appointed under(2);") shall direct and shall not be used except on the order of the Agency Director ("the Director of the Agency appointed under(2);") . Section 54F(3) The common seal of the Agency ("the Assets Recovery Agency established under(1);") when affixed to a document and duly authenticated shall be judicially and officially noticed and unless the contrary is proved, any necessary order or authorization of the Agency ("the Assets Recovery Agency established under(1);") under this section shall be presumed to have been duly given. [ Act No. 3 of 2017 , s. 22] - 55 Verify source ↗
THE ASSETS RECOVERY AGENCY - 55. Co-operation with theAgency
AI-assisted research summary: Persons or bodies involved in investigation or prosecution of offences under this Act and the Assets Recovery Agency must co-operate when exercising powers or performing functions under this Act.
Section 55. Co-operation with theAgency Section A person ("any natural or legal person;") who or a body which has functions relating to investigation or prosecution of offences under this Act and the Agency ("the Assets Recovery Agency established under(1);") shall co-operate in the exercise of their powers or the performance of their functions under this Act. - 55A Verify source ↗
THE ASSETS RECOVERY AGENCY - 55A. Asset RecoveryAdvisory Board
AI-assisted research summary: Section 55A sets out membership, nomination and appointment procedures for the Asset Recovery Advisory Board, including specified members, nomination of two names by certain bodies, the Cabinet Secretary's appointment of three persons from those nominees, consideration of gender and regional balance, qualifications, and term length of three years with possible one-term reappointment.
Section 55A. Asset RecoveryAdvisory Board Section 55A(1)(a) the Attorney-General, who shall be the Chairperson; Section 55A(1)(b) deleted by ActNo. 10 of 2023, Sch; Section 55A(1)(c) the Principal Secretary in the Ministry responsible for finance; Section 55A(1)(d) the Governor of the Central Bank of Kenya; Section 55A(1)(e) the Director General of the National Intelligence Service; Section 55A(1)(f) the Director of Criminal Investigations; Section 55A(1)(g) the Director General of the Centre ("the Financial Reporting Centre established under;") ; Section 55A(1)(h) a representative of the Institute of Certified Public Accountants of Kenya; Section 55A(1)(i) a representative of the Law Society of Kenya; Section 55A(1)(j) a representative of the Estate Agents Registration Board ("the Anti-Money Laundering Advisory Board established under;") ; Section 55A(1)(k) the Agency Director ("the Director of the Agency appointed under(2);") , who shall be an ex-officio member of the Advisory Board ("the Asset Recovery Advisory Board established under;") . Section 55A(2) The bodies under subsection (1) (h) to (j) shall each nominate and submit to the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") two names of persons of either gender. Section 55A(3) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") shall appoint three persons from among the persons nominated under subsection (2). Section 55A(4) In appointing the members of the Advisory Board ("the Asset Recovery Advisory Board established under;") , under subsection (1) (h) to (j), the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") shall take into account gender and regional balance. Section 55A(5)(a) holds a degree in finance, accounts, economics or law from a university recognised in Kenya; and Section 55A(5)(b) has knowledge and expertise in matters relating to money laundering ("an offence under any of the provisions of sections,and;") , asset tracing and recovery. Section 55A(6) A person ("any natural or legal person;") appointed under subsection (1) (h) to (j) shall hold office for a period of three years and may be eligible for reappointment for one further term. [Act No. 16 of 2021 , s. 20, Act No. 10 of 2023 , Sch.] ]] - 55B Verify source ↗
THE ASSETS RECOVERY AGENCY - 55B. Functions of theAdvisory Board
AI-assisted research summary: The Advisory Board must advise the Assets Recovery Agency on its powers, functions, policies, administration, approve its annual budget and reports and may establish committees for carrying out its functions.
Section 55B. Functions of theAdvisory Board Section 55B(1)(a) advising the Agency ("the Assets Recovery Agency established under(1);") on the exercise of its powers and performance of its functions; Section 55B(1)(b) advising the Agency ("the Assets Recovery Agency established under(1);") on asset recovery policies and strategic priorities of the Agency ("the Assets Recovery Agency established under(1);") ; Section 55B(1)(c) advising the Agency ("the Assets Recovery Agency established under(1);") with respect to the administration of the Agency ("the Assets Recovery Agency established under(1);") ; Section 55B(1)(d) approving the annual budget of the Agency ("the Assets Recovery Agency established under(1);") ; Section 55B(1)(e) approving the annual reports and financial statements of the Agency ("the Assets Recovery Agency established under(1);") ; and Section 55B(1)(f) the expenditure of the Agency ("the Assets Recovery Agency established under(1);") . Section 55B(2) The Advisory Board ("the Asset Recovery Advisory Board established under;") may establish such committees as may be necessary for the better carrying out of its functions under this Act. [Act No. 16 of 2021 , s. 20, Act No. 10 of 2023 , Sch.] - 55C Verify source ↗
THE ASSETS RECOVERY AGENCY - 55C. Conduct of business of theAdvisory Board
AI-assisted research summary: The Advisory Board must conduct its business and affairs in accordance with the Fifth Schedule and may regulate its own procedure, subject to that Schedule.
Section 55C. Conduct of business of theAdvisory Board Section The business and affairs of the Advisory Board ("the Asset Recovery Advisory Board established under;") shall be conducted in accordance with the provisions of the Fifth Schedule but subject thereto, the Advisory Board ("the Asset Recovery Advisory Board established under;") may regulate its own procedure. [Act No. 16 of 2021 , s. 20.] - 55D Verify source ↗
THE ASSETS RECOVERY AGENCY - 55D.Advisory Boardmay co-opt members
AI-assisted research summary: The Advisory Board may co-opt persons into its committees; co-opted persons may attend and participate in Advisory Board meetings but do not have a right to vote.
Section 55D.Advisory Boardmay co-opt members Section 55D(1) The Advisory Board ("the Asset Recovery Advisory Board established under;") may co-opt into any of its committees such other persons whose knowledge and skills are necessary for the better performance of its functions under this Act. Section 55D(2) A person ("any natural or legal person;") who has been co-opted into a committee of the Advisory Board ("the Asset Recovery Advisory Board established under;") may attend the meetings of the Advisory Board ("the Asset Recovery Advisory Board established under;") and participate in the deliberations thereof but shall not have a right to vote at the meetings. [Act No. 16 of 2021 , s. 20.] - 55E Verify source ↗
THE ASSETS RECOVERY AGENCY - 55E. Allowances of the members of theAdvisory Board
AI-assisted research summary: Members of the Asset Recovery Advisory Board are entitled to be paid allowances as determined by the Cabinet Secretary on the advice of the Salaries and Remuneration Commission.
Section 55E. Allowances of the members of theAdvisory Board Section The members of the Advisory Board ("the Asset Recovery Advisory Board established under;") shall be paid such allowances as the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") may determine on the advice of the Salaries and Remuneration Commission. [Act No. 16 of 2021 , s. 20.] - 55F Verify source ↗
THE ASSETS RECOVERY AGENCY - 55F.Agencyto facilitate theAdvisory Board
AI-assisted research summary: The Agency must provide the Advisory Board and its committees with facilities and resources necessary for the effective discharge of the Board's functions.
Section 55F.Agencyto facilitate theAdvisory Board Section The Agency ("the Assets Recovery Agency established under(1);") shall provide the Advisory Board ("the Asset Recovery Advisory Board established under;") and any of its committees with such facilities and resources as may be required for the effective discharge of the functions of the Board ("the Anti-Money Laundering Advisory Board established under;") or any of its committees. [Act No. 16 of 2021 , s. 20.] - 55G Verify source ↗
THE ASSETS RECOVERY AGENCY - 55G.Cabinet Secretaryto make Regulations
AI-assisted research summary: The Cabinet Secretary must, by Regulations, prescribe how the Asset Recovery Advisory Board discharges its functions and its meeting procedure; the Advisory Board must regulate its own procedure.
Section 55G.Cabinet Secretaryto make Regulations Section 55G(1) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") shall, in Regulations, prescribe the manner of discharging the functions of the Advisory Board ("the Asset Recovery Advisory Board established under;") including the procedure at its meetings. Section 55G(2) Notwithstanding the generality of subsection (1), the Advisory Board ("the Asset Recovery Advisory Board established under;") shall regulate its own procedure. [Act No. 16 of 2021 , s. 20.]
Part VII
CRIMINAL FORFEITURE
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CRIMINAL FORFEITURE - 56. Nature of proceedings
AI-assisted research summary: Proceedings on applications for confiscation orders or restraint orders are civil proceedings.
Section 56. Nature of proceedings Section 56(1) For the purposes of this Part, proceedings on application for a confiscation order ("an order referred to in;") or restraint order ("an order made under;") are civil. Section 56(2) The rules of evidence applicable in civil proceedings shall apply to proceedings on application for a confiscation order ("an order referred to in;") or a restraint order ("an order made under;") . - 57 Verify source ↗
CRIMINAL FORFEITURE - 57. Realizableproperty
AI-assisted research summary: Realisable property includes any property held by the defendant and any property held by a person to whom that defendant has directly or indirectly given an affected gift; property is not realizable while a forfeiture order is in force in respect of it.
Section 57. Realizableproperty Section 57(1)(a) any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") held by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned; and Section 57(1)(b) any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") held by a person ("any natural or legal person;") to whom that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") has directly or indirectly made any affected gift . Section 57(2) Property shall not be realizable property so long as a forfeiture order is in force in respect thereof. - 58 Verify source ↗
CRIMINAL FORFEITURE - 58. Value ofproperty
AI-assisted research summary: Specifies how the value of property is determined for the purposes of Section 58: market value less encumbrances when another person holds an interest; market value when no other person holds an interest; the value of a payment or reward when received; for non-cash property, the value at the time received; and where property represents previously received property, the value to the extent it represents that property.
Section 58. Value ofproperty Section 58(1)(a) where any other person ("any natural or legal person;") holds an interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , the market value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , less the amount required to discharge any encumbrance on the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; and Section 58(1)(b) where no other person ("any natural or legal person;") holds an interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , the market value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 58(2)(a) the value of the payment or reward at the time when the recipient received it; or Section 58(2)(b) where subsection (3) applies, the value set out in that subsection, Section 58(3)(a) the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , other than cash, which that person ("any natural or legal person;") received, the applicable value shall be the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") at the particular time; or Section 58(3)(b) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which directly or indirectly represents in his hands the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which he received, the applicable value shall be the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , in so far as it represents the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which he received, at the relevant time. - 59 Verify source ↗
CRIMINAL FORFEITURE - 59. Gifts
AI-assisted research summary: Defines when a defendant is deemed to have made a gift: transferring property to any other person for consideration significantly less than the property's value.
Section 59. Gifts Section 59(1) For the purposes of this Part, a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") shall be deemed to have made a gift if he has transferred any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") to any other person ("any natural or legal person;") directly or indirectly for a consideration which is significantly less than the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 59(2) For the purposes of subsection (2) the gift which a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") is deemed to have made shall consist of that share in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") transferred by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") which is equal to the difference between the value of that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") as a whole and the consideration received by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") in return. - 60 Verify source ↗
CRIMINAL FORFEITURE - 60. Conclusion of proceedings againstdefendant
AI-assisted research summary: Title: "Conclusion of proceedings against defendant"
Section 60. Conclusion of proceedings againstdefendant - 61 Verify source ↗
CRIMINAL FORFEITURE - 61. Confiscation orders
AI-assisted research summary: Section 61 sets rules for confiscation orders, including the court's powers to hear further evidence and to direct affidavits, conditions under which the court may first sentence a defendant, and that the court may allow payment of an ordered amount over a specified period if the defendant requests time to pay.
Section 61. Confiscation orders Section 61(1)(a) that offence ; Section 61(1)(b) any other offence of which the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") has been convicted at the same trial; and Section 61(1)(c) any criminal activity which the court ("a court of competent jurisdiction;") finds to be sufficiently related to that offence , Section 61(2)(a) shall not exceed the value of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ’s proceeds of the offences or related criminal activities referred to in that subsection, as determined by the court ("a court of competent jurisdiction;") in accordance with the provisions of this Part; or Section 61(2)(b) if the court ("a court of competent jurisdiction;") is satisfied that the amount which is just as contemplated in section 63 (1) is less than the value referred to in paragraph (a), the amount payable shall not exceed an amount which, in the opinion of the court might be so realized. Section 61(3)(a) it is satisfied that inquiry would unreasonably delay the sentencing of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ; or Section 61(3)(b) the Attorney-General applies to the court ("a court of competent jurisdiction;") to first sentence the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") and the court ("a court of competent jurisdiction;") is satisfied that it is reasonable and justifiable to do so in the circumstances. Section 61(4) If the judge or magistrate who convicted the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") is absent or for any other reason not available, any judge or magistrate of the same court ("a court of competent jurisdiction;") shall consider an application referred to in subsection (1) and hold the inquiry referred to in that subsection and that person ("any natural or legal person;") may, in the proceedings, take such steps as the judge or magistrate who is absent or not available could lawfully have taken. Section 61(5)(i) refer to the evidence and proceedings at the trial; Section 61(5)(ii) hear further oral evidence or take documentary evidence as the court ("a court of competent jurisdiction;") may deem fit; Section 61(5)(iii) direct the Agency Director ("the Director of the Agency appointed under(2);") to tender to the court ("a court of competent jurisdiction;") the affidavit referred to in section 64 (1); and Section 61(5)(iv) direct a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") to tender to the court ("a court of competent jurisdiction;") an affidavit referred to under section 64 (5). Section 61(6) The amount ordered to be paid under a confiscation order ("an order referred to in;") shall be paid on the making of the order: Provided that if the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") indicates to the court ("a court of competent jurisdiction;") that he needs time to pay the amount ordered to be paid, the court ("a court of competent jurisdiction;") making the confiscation order ("an order referred to in;") may make an order allowing payment to be made in a specified period. - 62 Verify source ↗
CRIMINAL FORFEITURE - 62. Value ofproceeds of crime
AI-assisted research summary: Section 62 defines the value of a defendant's proceeds of crime as the sum of property, services, advantages, benefits or rewards received, retained or derived by the defendant after the commencement of the Act in connection with the offence.
Section 62. Value ofproceeds of crime Section 62(1) Subject to the provisions of subsection (2), the value of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ’s proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") shall be the sum of the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , services, advantages, benefits or rewards received, retained or derived by him at any time after the commencement of this Act in connection with the offence committed by him or any other person ("any natural or legal person;") . Section 62(2)(a) the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") received in connection with the criminal activity carried on by him or any other person ("any natural or legal person;") ; or Section 62(2)(a)(i) the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") received in connection with the criminal activity carried on by him or any other person ("any natural or legal person;") ; or Section 62(2)(a)(ii) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which, directly or indirectly, represented in the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ’s possession or control, which he received in that connection, Section 62(2)(b) where a confiscation order ("an order referred to in;") has previously been made against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") , leave out of account , those proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") which are proved to the satisfaction of the court ("a court of competent jurisdiction;") to have been taken into account in determining the amount to be recovered under that confiscation order ("an order referred to in;") . - 63 Verify source ↗
CRIMINAL FORFEITURE - 63. Amount which might be realized
AI-assisted research summary: A court must give all persons with an interest in the property an opportunity to make representations before determining amounts that might be realized.
Section 63. Amount which might be realized Section 63(1)(a) realizable property held by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ; and Section 63(1)(b) affected gifts made by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") , Section 63(2)(a) the value of the affected gift at the time when the recipient received it, as adjusted to take into account subsequent fluctuations in the value of money; or Section 63(2)(b) where subsection (3) applies, the value mentioned in that subsection, whichever is the greater value; or Section 63(2)(c) such amount as the court ("a court of competent jurisdiction;") believes is just. Section 63(3)(a) other than in monetary instruments , which such person ("any natural or legal person;") received, the value concerned shall be the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") at that time; or Section 63(3)(b) which directly or indirectly represents in their hands the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which that person ("any natural or legal person;") received, the value concerned shall be the value of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , in so far as it represents the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which that person ("any natural or legal person;") received, at the time. Section 63(4)(a) a fine imposed before that time by the court ("a court of competent jurisdiction;") ; or Section 63(4)(a)(i) a fine imposed before that time by the court ("a court of competent jurisdiction;") ; or Section 63(4)(a)(ii) any other amount under any resultant order made before that time by the court ("a court of competent jurisdiction;") ; Section 63(4)(b) if the estate of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") had at that time been sequestrated; or Section 63(4)(b)(i) if the estate of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") had at that time been sequestrated; or Section 63(4)(b)(ii) where the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") is a company or other legal entity, if that company or that legal entity is at that time being wound up, would be payable in pursuance of any secured or preferential claim against the insolvent estate or against the company or legal entity, as the case may be. Section 63(5) A court ("a court of competent jurisdiction;") shall not determine the amounts which might be realized as contemplated in subsection (1) unless it has afforded all persons holding any interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned an opportunity to make representations to it in connection with the realization of that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . - 64 Verify source ↗
CRIMINAL FORFEITURE - 64. Statements relating toproceeds of crime
AI-assisted research summary: Section 64 governs affidavits related to proceeds of crime: the Agency Director may (and must if directed by the court) tender affidavits to court; a copy must be served on the defendant; the defendant may dispute allegations and must state grounds if disputing; the defendant may tender affidavits about realizable amounts and a copy must be served on the Agency Director; the Agency Director may admit correctness of such affidavits.
Section 64. Statements relating toproceeds of crime Section 64(1) The Agency Director ("the Director of the Agency appointed under(2);") may or, if so directed by the court ("a court of competent jurisdiction;") , shall tender to the court ("a court of competent jurisdiction;") an affidavit by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") or any other person ("any natural or legal person;") in connection with any matter which is being inquired into by the court ("a court of competent jurisdiction;") under section 61 (1), or which relates to the determination of the value of a defendant’s proceeds of crime. Section 64(2) A copy of the affidavit referred to in subsection (1), shall be served on the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") . Section 64(3) The defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") may dispute the correctness of any allegation contained in an affidavit referred to in subsection (1), and if the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") does so, he shall state the grounds upon which he relies. Section 64(4) In so far as the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") does not dispute the correctness of any allegation contained in the affidavit under subsection (1), that allegation shall be considered to be conclusive proof of the matter to which it relates. Section 64(5) A defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") may or, if so directed by the court ("a court of competent jurisdiction;") , tender to the court ("a court of competent jurisdiction;") an affidavit or affirmation in writing by him or another person ("any natural or legal person;") in connection with any matter which relates to the determination of the amount which might be realized as contemplated in section 59 (1). Section 64(6) A copy of the affidavit or affirmation tendered under subsection (5) shall be served on the Agency Director ("the Director of the Agency appointed under(2);") . Section 64(7) The Agency Director ("the Director of the Agency appointed under(2);") may admit the correctness of any allegation contained in an affidavit or affirmation tendered under subsection (5). Section 64(8) In so far as the Agency Director ("the Director of the Agency appointed under(2);") admits the correctness of any allegation contained in an affidavit or affirmation tendered under subsection (5), that allegation shall be considered to be conclusive proof of the matter to which it relates. - 65 Verify source ↗
CRIMINAL FORFEITURE - 65. Evidence relating toproceeds of crime
AI-assisted research summary: The court must accept specified facts as prima facie evidence when assessing whether a defendant derived benefits or proceeds from offences.
Section 65. Evidence relating toproceeds of crime Section 65(1) For the purpose of determining whether a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") has derived a benefit in an inquiry under section 61 (1), if it is found that the defendant did not, at the fixed date, have legitimate sources of income sufficient to justify the interests in any property that he holds, the court shall accept this fact as prima facie evidence that the interests form part of the benefit. Section 65(2)(a) forms part of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ’s benefit, in determining whether he has derived a benefit from an offence ; or Section 65(2)(b) is held by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") as an advantage, payment, service or reward in connection with the offences or related criminal activities referred to in section 61 (1). Section 65(3) For the purposes of determining the value of a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ’s proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") , in an inquiry under section 61 (1) if the court finds that defendant has benefited from an offence and that the defendant held property at any time, or since, his conviction, the court shall accept these facts as prima facie evidence that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") was received by him at the earliest time at which he held it, as an advantage, payment, service or reward in connection with the offences or related criminal activities referred to in section 61 (1). Section 65(4) If the court ("a court of competent jurisdiction;") finds that the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") has benefited from an offence and that expenditure had been incurred by him since the beginning of the period contemplated in subsection (3), the court ("a court of competent jurisdiction;") shall accept these facts as prima facie evidence that the expenditure was met out of the advantages, payments, services or rewards, including any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") received by him in connection with the offences or related criminal activities referred to in section 61 (1) committed by him. Section 65(5) For the purpose of determining the value of any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in an inquiry under section 57 (1), if the court finds that the defendant received property at any time as an advantage, payment, service or reward in connection with the offences or related criminal activities referred to in that subsection committed by the person or by any other person, the court shall accept this fact as prima facie evidence that that person ("any natural or legal person;") received that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") free of any other interest therein. - 66 Verify source ↗
CRIMINAL FORFEITURE - 66. Effect of confiscation orders
AI-assisted research summary: When a court of competent jurisdiction makes a confiscation order, that order has the effect of a civil judgment.
Section 66. Effect of confiscation orders Section Where a court ("a court of competent jurisdiction;") makes a confiscation order ("an order referred to in;") , the order shall have the effect of a civil judgment. - 67 Verify source ↗
CRIMINAL FORFEITURE - 67. Procedure wherepersonabsconds or dies
AI-assisted research summary: If a defendant dies or absconds and proceedings cannot continue, the court may inquire into benefits and may make confiscation orders, appoint a receiver and authorise realization of property; the court must give interested persons an opportunity to make representations before exercising certain powers.
Section 67. Procedure wherepersonabsconds or dies Section 67(1)(a) a person ("any natural or legal person;") had been charged with an offence ; or Section 67(1)(a)(i) a person ("any natural or legal person;") had been charged with an offence ; or Section 67(1)(a)(ii) a person ("any natural or legal person;") had been convicted of any offence ; or Section 67(1)(a)(iii) a restraint order ("an order made under;") had been made against a person ("any natural or legal person;") ; or Section 67(1)(a)(iv) there is sufficient evidence for putting a person ("any natural or legal person;") on trial for an offence ; and Section 67(1)(b) a warrant for that person ("any natural or legal person;") ’s arrest had been issued and that the attendance of that person ("any natural or legal person;") in court ("a court of competent jurisdiction;") could not be secured after all reasonable steps were taken to execute that warrant; Section 67(1)(c) the proceedings against that person ("any natural or legal person;") cannot be resumed within a period of six months due to his continued absence; and Section 67(1)(d) there are reasonable grounds to believe that a confiscation order ("an order referred to in;") would have been made against that person ("any natural or legal person;") were it not for his continued absence, Section 67(2) Whenever a defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") who has been convicted of an offence dies before a confiscation order ("an order referred to in;") is made, the court ("a court of competent jurisdiction;") may, on an application by the Agency Director ("the Director of the Agency appointed under(2);") , inquire into any benefit he may have derived from that offence if the court ("a court of competent jurisdiction;") is satisfied that there are reasonable grounds to believe that a confiscation order ("an order referred to in;") would have been made against him were it not for his death. Section 67(3) The administrator of the estate of the deceased may appear before the court ("a court of competent jurisdiction;") and make representations for the purposes of any inquiry. Section 67(4)(a) if the court ("a court of competent jurisdiction;") finds that the person ("any natural or legal person;") referred to in subsection (1) or (2) has so benefited, make a confiscation order ("an order referred to in;") and the provisions of this Part shall, with the necessary changes, apply to the making of that order; Section 67(4)(b) if a receiver has not been appointed in respect of any of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned, appoint a receiver in respect of realizable property ; and Section 67(4)(c) authorise the realization of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned in terms of Part VIII. Section 67(5) A court ("a court of competent jurisdiction;") shall not exercise its powers under subsection (4)(a) or (c) unless it has afforded all persons having any interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned an opportunity to make representations to it in connection with the making of the orders. Section 67(6) Sections 64 and 65 shall not apply to an inquiry under this section. Section 67(7)(a) convicted of one or other of the offences in respect of which the order had been made, the court ("a court of competent jurisdiction;") convicting that person ("any natural or legal person;") may conduct an inquiry under section 61 (1) and make an appropriate order; Section 67(7)(b) acquitted of the offence in respect of which the order had been made, - 68 Verify source ↗
CRIMINAL FORFEITURE - 68. Restraint orders
AI-assisted research summary: The Agency Director may apply ex parte to a court for a restraint order prohibiting persons from dealing with specified property; courts making restraint orders have powers to order discovery, authorise seizure, and must authorise seizure at the same time as the restraint order; certain living and legal expenses and business continuation are recognised in relation to restraint orders.
Section 68. Restraint orders Section 68(1) The Agency Director ("the Director of the Agency appointed under(2);") may apply to a court ("a court of competent jurisdiction;") ex parte for an order prohibiting any person ("any natural or legal person;") , subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") to which the order relates. Section 68(2)(a) realizable property as may be specified in the restraint order ("an order made under;") and which is held by a person ("any natural or legal person;") against whom the restraint order ("an order made under;") is being made; Section 68(2)(b) all property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which, if it is transferred to that person ("any natural or legal person;") after the making of the restraint order ("an order made under;") , would be realizable property . Section 68(3)(a) a criminal investigation has been started in Kenya with regard to an offence ; or Section 68(3)(b) there is reasonable cause to believe that a person ("any natural or legal person;") leads a criminal lifestyle and has benefited from his criminal conduct. Section 68(4) A restraint order ("an order made under;") shall provide for the period of the notice to be given to persons affected by the order. Section 68(5)(a) living expenses of a person ("any natural or legal person;") against whom the restraint order ("an order made under;") is being made and his family or household; Section 68(5)(b) legal expenses of that person ("any natural or legal person;") in connection with any proceedings instituted against him in terms of this Part or any criminal proceedings to which the proceedings may relate; Section 68(5)(c) carrying on of any trade, business, profession or occupation: Section 68(6) A court ("a court of competent jurisdiction;") making a restraint order ("an order made under;") may also make further order in respect of the discovery or disclosure of any facts, including facts relating to any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") over which the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") may have effective control and the location of such property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , as the court ("a court of competent jurisdiction;") may consider necessary or expedient with a view to achieving the objects of the restraint order ("an order made under;") . Section 68(7) A court ("a court of competent jurisdiction;") making a restraint order ("an order made under;") shall at the same time make an order authorising the seizure of all movable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned and any other ancillary orders that the court ("a court of competent jurisdiction;") considers appropriate for the proper, fair and effective execution of the order. Section 68(8) Property seized under subsection (7) shall be dealt with in accordance with the directions of the court ("a court of competent jurisdiction;") that made the relevant restraint order ("an order made under;") . Section 68(9)(a) operation of the order concerned will deprive the applicant of the means to provide for his reasonable living expenses and cause undue hardship to the applicant; and Section 68(9)(a)(i) operation of the order concerned will deprive the applicant of the means to provide for his reasonable living expenses and cause undue hardship to the applicant; and Section 68(9)(a)(ii) hardship that the applicant will suffer as a result of the order outweighs the risk that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned may be destroyed, lost, damaged, concealed or transferred; and Section 68(9)(b) shall rescind the restraint order ("an order made under;") when the proceedings against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned are concluded. Section 68(10) When a court ("a court of competent jurisdiction;") orders the rescission of an order authorising the seizure of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in terms of subsection (9)(a) the court ("a court of competent jurisdiction;") shall make such other orders as it considers appropriate for the proper, fair and effective execution of the restraint order ("an order made under;") concerned. - 69 Verify source ↗
CRIMINAL FORFEITURE - 69. Cases in whichrestraint ordermay be made
AI-assisted research summary: A court of competent jurisdiction may make a restraint order in specified circumstances; if the court made a restraint order under subsection (1)(b) it must rescind it if the relevant person is not charged within a period the court considers reasonable.
Section 69. Cases in whichrestraint ordermay be made Section 69(1)(a) a prosecution for an offence has been instituted against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned; and Section 69(1)(a)(i) a prosecution for an offence has been instituted against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned; and Section 69(1)(a)(ii) either a confiscation order ("an order referred to in;") has been made against that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") or it appears to the court ("a court of competent jurisdiction;") that there are reasonable grounds for believing that a confiscation order ("an order referred to in;") may be made against that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ; and Section 69(1)(a)(iii) the proceedings against that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") have not been concluded; or Section 69(1)(b) that court ("a court of competent jurisdiction;") is satisfied that a person ("any natural or legal person;") is to be charged with an offence ; and Section 69(1)(b)(i) that court ("a court of competent jurisdiction;") is satisfied that a person ("any natural or legal person;") is to be charged with an offence ; and Section 69(1)(b)(ii) it appears to the court ("a court of competent jurisdiction;") that there are reasonable grounds for believing that a confiscation order ("an order referred to in;") may be made against that person ("any natural or legal person;") . Section 69(2) Where the court ("a court of competent jurisdiction;") has made a restraint order ("an order made under;") under subsection (1)(b), that court ("a court of competent jurisdiction;") shall rescind the restraint order ("an order made under;") if the relevant person ("any natural or legal person;") is not charged within such period as the court ("a court of competent jurisdiction;") may consider reasonable. - 70 Verify source ↗
CRIMINAL FORFEITURE - 70. Order to remain in force pending appeal
AI-assisted research summary: A restraint order and an order authorising seizure of property that are in force when the court decides in relation to a confiscation order remain in force pending the outcome of any appeal.
Section 70. Order to remain in force pending appeal Section A restraint order ("an order made under;") and an order authorising the seizure of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned or other ancillary order which is in force at the time of any decision by the court ("a court of competent jurisdiction;") in relation to the making of a confiscation order ("an order referred to in;") , shall remain in force pending the outcome of any appeal against the decision concerned. - 71 Verify source ↗
CRIMINAL FORFEITURE - 71. Seizure ofpropertysubject torestraint order
AI-assisted research summary: A police officer may seize property subject to a restraint order if the officer has reasonable grounds to believe the property will be disposed of or removed contrary to the restraint order.
Section 71. Seizure ofpropertysubject torestraint order Section 71(1) In order to prevent any realizable property from being disposed of or removed contrary to a restraint order ("an order made under;") , a police officer may seize that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") if he has reasonable grounds to believe that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") will be so disposed of or removed. Section 71(2) Property seized under subsection (1) shall be dealt with in accordance with the directions of the court ("a court of competent jurisdiction;") that made the relevant restraint order ("an order made under;") . - 72 Verify source ↗
CRIMINAL FORFEITURE - 72. Appointment of manager in respect ofpropertysubject torestraint order
AI-assisted research summary: Section 72 empowers a court to appoint a manager over property subject to a restraint order; the appointed manager must manage, administer, care for, carry on a business if the property is a business, and may sell perishable property, and the court may order surrender of property to a receiver and vary or rescind appointments or orders and make orders about manager fees.
Section 72. Appointment of manager in respect ofpropertysubject torestraint order Section 72(1)(a) perform any particular act in respect of any or all the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") to which the restraint order ("an order made under;") relates; Section 72(1)(a)(i) perform any particular act in respect of any or all the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") to which the restraint order ("an order made under;") relates; Section 72(1)(a)(ii) take care of the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 72(1)(a)(iii) administer the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 72(1)(a)(iv) where the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is a business or undertaking, carry on, with due regard to any law which may be applicable, the business or undertaking; and Section 72(1)(a)(v) in the case of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that is perishable, or liable to deterioration, decay or injury by being detained in custody, to sell or otherwise dispose of the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 72(1)(b) order the person ("any natural or legal person;") against whom the restraint order ("an order made under;") has been made to surrender forthwith, or within such period as that court ("a court of competent jurisdiction;") may determine, any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in respect of which a receiver has been appointed under paragraph (a), into the custody of that receiver. Section 72(2)(a) rescission of the order; or Section 72(2)(b) the terms of the appointment of the manager concerned or for the discharge of that manager. Section 72(3)(a) vary or rescind the order; or Section 72(3)(a)(i) vary or rescind the order; or Section 72(3)(a)(ii) vary the terms of the appointment of the manager concerned or discharge that manager; Section 72(3)(b) shall discharge the manager concerned if the relevant restraint order ("an order made under;") is rescinded; Section 72(3)(c) may make an order relating to the fees and expenditure of the manager as it considers fit, including an order for the payment of the fees of the manager from the confiscated proceeds, if a confiscation order ("an order referred to in;") is made, or by the Government if no confiscation order ("an order referred to in;") is made. - 73 Verify source ↗
CRIMINAL FORFEITURE - 73. Orders in respect of immovablepropertysubject torestraint order
AI-assisted research summary: Affected persons may apply to rescind an order; the court may or must rescind the order in specified circumstances and must direct the Registrar of Lands to lift any land register restriction when rescission occurs.
Section 73. Orders in respect of immovablepropertysubject torestraint order Section 73(1)(a) not been made, of an amount equal to the most recent value of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; or Section 73(1)(b) been made, of an amount exceeding the amount payable under the confiscation order ("an order referred to in;") , Section 73(2) A person ("any natural or legal person;") affected by an order in subsection (1) may at any time apply for rescission of the order. Section 73(3)(a) may at any time rescind the order; and Section 73(3)(b) shall rescind the order if the relevant restraint order ("an order made under;") is rescinded or the amount payment of which is secured by the order has, with the consent of the court ("a court of competent jurisdiction;") , been paid into court ("a court of competent jurisdiction;") ; Section 73(3)(c) shall if, the order is rescinded, the court ("a court of competent jurisdiction;") shall direct the Registrar of Lands to lift the restriction placed by virtue of that order on the land register in respect of that immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") and the Registrar of Lands shall give effect to such direction. - 74 Verify source ↗
CRIMINAL FORFEITURE - 74. Variation and rescission of certain orders suspended by appeal
AI-assisted research summary: Lodging an appeal against a decision to vary or rescind any order referred to in sections 68(10), 72(3) and 73(3) operates as a stay of that variation or rescission until the appeal is determined.
Section 74. Variation and rescission of certain orders suspended by appeal Section The lodging of an appeal against a decision to vary or rescind any order referred to in sections 68 (10), 72 (3) and 73 (3) shall act as a stay of such a variation or rescission pending the determination of the appeal. - 75 Verify source ↗
CRIMINAL FORFEITURE - 75. Realization ofproperty
AI-assisted research summary: If a confiscation order has been made, is not subject to review or appeal, and proceedings are concluded, the court may appoint a receiver, authorise a manager or receiver to realise realizable property, and order persons holding such property to surrender it; the court must give interested persons an opportunity to make representations before exercising certain powers.
Section 75. Realization ofproperty Section 75(1)(a) a confiscation order ("an order referred to in;") has been made against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned; Section 75(1)(b) that confiscation order ("an order referred to in;") is no longer subject to review or appeal; and Section 75(1)(c) the proceedings against that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") have been concluded. Section 75(2)(a) if a receiver has not been appointed in respect of any of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned, appoint a receiver in respect of the realizable property ; Section 75(2)(b) subject to subsection (3), authorise a manager appointed under section 72 (1)(a) or a receiver appointed under paragraph (a) of this subsection, as the case may be, to realize any realizable property in such manner as that court may determine; Section 75(2)(c) order any person ("any natural or legal person;") who holds realizable property to surrender the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") forthwith into the custody of a manager appointed under section 72 (1)(a) or a receiver appointed under paragraph (a) of this subsection, as the court may determine. Section 75(3) A court ("a court of competent jurisdiction;") shall not exercise its powers under subsection (2)(b) unless it has afforded all persons known to have any interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned an opportunity to make representations to it in connection with the realization of that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 75(4)(a) is likely to be directly affected by the confiscation order ("an order referred to in;") ; or Section 75(4)(b) has suffered damage to or loss of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") or injury as a result of an offence or related criminal activity referred to in section 61 (1) which was committed by the defendant, Section 75(5)(a) has instituted civil proceedings, or intends to institute such proceedings within a reasonable time; or Section 75(5)(b) has obtained a judgment against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") , Section 75(6)(a) the proceedings referred to in subsection (5)(a) have been disposed of; or Section 75(6)(b) the judgment referred to in subsection (5)(b) has been satisfied, as the case may be; or Section 75(6)(c) the period determined under subsection (5) has expired, - 76 Verify source ↗
CRIMINAL FORFEITURE - 76. Application of certain sums of money
AI-assisted research summary: The Government must not have a preferential claim to certain sums of money described in this section.
Section 76. Application of certain sums of money Section 76(1)(a) the proceeds of any realizable property realized by virtue of section 75 ; and Section 76(1)(b) any other sums of money, being property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned, Section 76(2)(a) the Government shall not have a preferential claim; and Section 76(2)(b) among those persons who held realizable property realized by virtue of section 76 ; and Section 76(2)(b)(i) among those persons who held realizable property realized by virtue of section 76 ; and Section 76(2)(b)(ii) in such proportions as the court ("a court of competent jurisdiction;") may direct after affording the persons an opportunity to make representations to it in connection with the distribution of those sums of money. Section 76(3) Without limiting the generality of subsection (1), the payments that a court ("a court of competent jurisdiction;") may direct to be under that subsection shall include any payment in respect of an obligation which was found to have priority under section 64 . - 77 Verify source ↗
CRIMINAL FORFEITURE - 77. Exercise of powers bycourtand receiver
AI-assisted research summary: Courts and receivers must exercise their powers to make the current value of realizable property available to satisfy confiscation orders; where property is held by a transferee of an affected gift they must realize not more than the gift's current value; powers may be exercised to allow third parties to retain or recover current value of property; subsection (1) does not prohibit a court from making additional orders about debts owed to the Government.
Section 77. Exercise of powers bycourtand receiver Section 77(1)(a) subject to paragraphs (b) and (c), be exercised with a view to making available the current value of realizable property for satisfying any confiscation order ("an order referred to in;") made or which might be made against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") ; Section 77(1)(b) in the case of realizable property held by a person ("any natural or legal person;") to whom that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") has directly or indirectly made an affected gift , be exercised with a view to realizing not more than the current value of the gift; Section 77(1)(c) be exercised with a view to allowing a person ("any natural or legal person;") other than the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") or the recipient of the gift to retain or recover the current value of any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") held by that person ("any natural or legal person;") , Section 77(2) The provisions of subsection (1) shall not be construed as prohibiting any court ("a court of competent jurisdiction;") from making any additional order in respect of a debt owed to the Government. - 78 Verify source ↗
CRIMINAL FORFEITURE - 78. Variation of confiscation orders
AI-assisted research summary: Section 78 lets a court issue a certificate if realizable property is inadequate, allows the defendant to apply for reduction, and permits the court to substitute a lesser amount; the court must also exclude inadequacy caused by the defendant preserving gifted property.
Section 78. Variation of confiscation orders Section 78(1) If the court ("a court of competent jurisdiction;") is satisfied that the realizable property is inadequate for the payment of the balance of the amount to be recovered under a confiscation order ("an order referred to in;") against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned, that court ("a court of competent jurisdiction;") may, on the application of that defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") , issue a certificate to that effect stating the reasons for the court ("a court of competent jurisdiction;") being so satisfied. Section 78(2)(a) a person ("any natural or legal person;") whose estate has been sequestrated, take into account the extent to which the proceeds of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in that estate may be distributed among the creditors; or Section 78(2)(a)(i) a person ("any natural or legal person;") whose estate has been sequestrated, take into account the extent to which the proceeds of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in that estate may be distributed among the creditors; or Section 78(2)(a)(ii) a company or other legal entity which is being wound up, take into account the extent to which the assets of that company or legal entity may be distributed among the creditors; Section 78(2)(b) leave out of account any inadequacy in the realizable property which is in the opinion of that court ("a court of competent jurisdiction;") , wholly or partly attributable to anything done by the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") for the purpose of preserving any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") held by a person ("any natural or legal person;") to whom the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") had directly or indirectly made an affected gift from the risk of any realization in terms of this Part. Section 78(3) If a certificate referred to in subsection (1) has been issued, the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") may apply to the court ("a court of competent jurisdiction;") that made the confiscation order ("an order referred to in;") against that person ("any natural or legal person;") for the reduction of the amount to be recovered under that confiscation order ("an order referred to in;") . Section 78(4) In making an order under subsection (3), the court ("a court of competent jurisdiction;") may substitute for the amount to be recovered under that confiscation order ("an order referred to in;") such lesser amount as that court ("a court of competent jurisdiction;") may consider just in the circumstances of the case. - 79 Verify source ↗
CRIMINAL FORFEITURE - 79. Effect of bankruptcy onrealizable property
AI-assisted research summary: Courts must consider realizations of other persons' property when setting aside certain dispositions; the Official Receiver or a bankruptcy trustee can claim from the bankrupt; courts and receivers may exercise powers under subsection (3) despite the Insolvency Act.
Section 79. Effect of bankruptcy onrealizable property Section 79(1)(a) the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") for the time being subject to a restraint order ("an order made under;") made before the date of the bankruptcy order; and Section 79(1)(b) the proceeds of any realizable property realized because of section 75 and for the time being under the control of a receiver appointed under this Part, Section 79(2)(a) a prosecution for an offence has been commenced against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") and the proceedings against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") have not been conclude concluded; or Section 79(2)(a)(i) a prosecution for an offence has been commenced against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") and the proceedings against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") have not been conclude concluded; or Section 79(2)(a)(ii) the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of any other person ("any natural or legal person;") is subject to a restraint order ("an order made under;") ; Section 79(2)(b) any court ("a court of competent jurisdiction;") that sets aside a disposition in paragraph (a) after the conclusion of the proceedings against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") shall take into account any realization of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of other persons in accordance with this Part. Section 79(3)(a) forms part of the bankrupt's estate; or Section 79(3)(b) the Official Receiver or a bankruptcy trustee is entitled to claim from the bankrupt under the Insolvency Act ( Cap. 53 ). Section 79(4) Nothing in the Insolvency Act ( Cap. 53 ) prohibits a court ("a court of competent jurisdiction;") or a receiver appointed under this Part from exercising a power contemplated in subsection (3) of any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") or proceeds referred to in subsection (1). [ Act No. 19 of 2015 , s. 165] - 80 Verify source ↗
CRIMINAL FORFEITURE - 80. Effect of winding-up of companies or other legal entities onrealizable property
AI-assisted research summary: If a restraint order has been made or a relevant resolution registered for a company or other legal entity, a court or receiver may not exercise certain powers in respect of property that is part of that entity's assets; nevertheless other laws do not prevent a court or receiver from exercising those subsection (2) powers in respect of the property or proceeds referred to in subsection (1).
Section 80. Effect of winding-up of companies or other legal entities onrealizable property Section 80(1)(a) property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") for the time being subject to a restraint order ("an order made under;") made before the relevant time; nor Section 80(1)(b) the proceeds of any realisable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") realised because of section 75 and for the time being under the control of a receiver appointed under this Part, Section 80(2) If an order referred to in subsection (1) has been made in respect of a company or other legal entity or a resolution referred to in that subsection has been registered in respect of the body, the powers conferred on a court ("a court of competent jurisdiction;") by sections 68 to 73 and 75(2) or on a receiver appointed under this Part, may not be exercised in respect of any property that forms part of the assets of the body. Section 80(3) Nothing in the Companies Act ( Cap. 486 ), the Insolvency Act ( Cap. 53 ), or any other law relating to legal entities in general or any particular legal entity, prohibits a court ("a court of competent jurisdiction;") or receiver appointed under this Part from exercising a power conferred by subsection (2) in respect of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") or proceeds referred to in subsection (1). Section 80(4)(a) if an order for the body corporate has been made, the time when the application to relevant the court ("a court of competent jurisdiction;") of the application for the liquidation order; or Section 80(4)(b) if no such order has been made, the time when the resolution authorising the voluntary liquidation of the body corporate is passed. Section 80(5) Section 79 (2), with necessary modifications, applies to a legal entity that has directly or indirectly made an affected gift. [ Act No. 19 of 2015 , s. 166]
Part VIII
CIVIL FORFEITURE
- 81 Verify source ↗
CIVIL FORFEITURE - 81. Nature of proceedings
AI-assisted research summary: Proceedings under this Part are civil proceedings and the rules of evidence for civil proceedings apply to them.
Section 81. Nature of proceedings Section 81(1) All proceedings under this Part shall be civil proceedings. Section 81(2) The rules of evidence applicable in civil proceedings shall apply to proceedings under this Part. - 82 Verify source ↗
CIVIL FORFEITURE - 82. Preservation orders
AI-assisted research summary: The Director of the Agency may apply ex parte to a court for a preservation order prohibiting any person from dealing with specified property; the court must authorise seizure of the property and may make ancillary orders.
Section 82. Preservation orders Section 82(1) The Agency Director ("the Director of the Agency appointed under(2);") may, by way of an ex parte application apply to the court ("a court of competent jurisdiction;") for an order prohibiting any person ("any natural or legal person;") , subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 82(2)(a) has been used or is intended for use in the commission of an offence ; or Section 82(2)(b) is proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") . Section 82(3) A court ("a court of competent jurisdiction;") making a preservation order shall at the same time make an order authorising the seizure of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned by a police officer, and any other ancillary orders that the court ("a court of competent jurisdiction;") considers appropriate for the proper, fair and effective execution of the order. Section 82(4) Property seized under subsection (3) shall be dealt with in accordance with the directions of the court ("a court of competent jurisdiction;") that made the relevant preservation order. - 83 Verify source ↗
CIVIL FORFEITURE - 83. Notice of preservation orders
AI-assisted research summary: When a court makes a preservation order, the Agency Director must, within twenty-one days, notify all persons known to have an interest in the property and publish notice in the Gazette; persons with an interest may notify an intention to oppose forfeiture or apply to exclude their interest, following time limits for entry of appearance.
Section 83. Notice of preservation orders Section 83(1) If a court ("a court of competent jurisdiction;") makes a preservation order, the Agency Director ("the Director of the Agency appointed under(2);") shall, within twenty-one days after the making of the order, give notice of the order to all persons known to the Agency Director ("the Director of the Agency appointed under(2);") to have an interest in property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is subject to the order; and publish a notice of the order in the Gazette . Section 83(2) A notice under subsection (1) shall be served in accordance with the provisions of the Civil Procedure Act ( Cap. 21 ). Section 83(3) A person ("any natural or legal person;") who has an interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is subject to a preservation order may give notice of his intention to oppose the making of a forfeiture order, or to apply for an order excluding his interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned from the operation thereof. Section 83(4)(a) a person ("any natural or legal person;") upon whom a notice has been served under subsection (1), within fourteen days after service; or Section 83(4)(b) any other person ("any natural or legal person;") , within fourteen days after the date upon which a notice under subsection (1) is published in the Gazette . Section 83(5)(a) full particulars of the identity of the person ("any natural or legal person;") entering the appearance; Section 83(5)(b) the nature and extent of his interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned; and Section 83(5)(c) the reasons which the person ("any natural or legal person;") intends to rely on in opposing a forfeiture order or applying for the exclusion of his interest from the operation thereof. - 84 Verify source ↗
CIVIL FORFEITURE - 84. Duration of preservation orders
AI-assisted research summary: If an application for a forfeiture order is pending before a court in respect of specified property, that property is the subject of the preservation order.
Section 84. Duration of preservation orders Section there is an application for a forfeiture order pending before the court ("a court of competent jurisdiction;") in respect of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") subject to the preservation order; - 85 Verify source ↗
CIVIL FORFEITURE - 85. Seizure ofpropertysubject to preservation orders
AI-assisted research summary: A police officer may seize property subject to a preservation order to prevent it being disposed of or removed if the officer has reasonable grounds to believe it will be so disposed or removed.
Section 85. Seizure ofpropertysubject to preservation orders Section 85(1) In order to prevent property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") subject to a preservation order from being disposed of or removed contrary to that order, any police officer may seize any of that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") if he has reasonable grounds to believe that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") will be so disposed of or removed. Section 85(2) Property seized under subsection (1) shall be dealt with in accordance with the directions of the court ("a court of competent jurisdiction;") that made the relevant preservation order. - 86 Verify source ↗
CIVIL FORFEITURE - 86. Appointment of manager in respect ofpropertysubject to preservation orders
AI-assisted research summary: Section 86 appoints a manager over property subject to preservation orders and gives the manager specified powers (assume control, take care, administer, act as necessary, carry on any business with regard to law, and sell perishable property) and allows a court to order persons holding such property to surrender it to the manager.
Section 86. Appointment of manager in respect ofpropertysubject to preservation orders Section 86(1)(a) to assume control over the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 86(1)(a)(i) to assume control over the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 86(1)(a)(ii) to take care of the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 86(1)(a)(iii) to administer the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") and to do any act necessary for that purpose; Section 86(1)(a)(iv) where the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is a business or undertaking, to carry on, with due regard to any law which may be applicable, the business or undertaking; and Section 86(1)(a)(v) in the case of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that is perishable, or liable to deterioration, decay or injury by being detained in custody to sell or otherwise dispose of the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; Section 86(1)(b) order any person ("any natural or legal person;") holding property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") subject to the preservation order to surrender forthwith, or within such period as that court ("a court of competent jurisdiction;") may determine, any such property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") into the custody of the manager. Section 86(2)(a) from the forfeited property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") if a forfeiture order is made; or Section 86(2)(b) by the Government if no forfeiture order is made. - 87 Verify source ↗
CIVIL FORFEITURE - 87. Orders in respect of immovablepropertysubject to preservation order
AI-assisted research summary: A court that has made a preservation order over immovable property may order the Registrar of Lands to place a restriction on the land register, and the restriction can prevent mortgaging, attachment or sale without the court's consent, with certain vesting rules where the owner's estate is sequestrated or a company is wound up; affected persons may apply to rescind the order.
Section 87. Orders in respect of immovablepropertysubject to preservation order Section 87(1) A court ("a court of competent jurisdiction;") that has made a preservation order in respect of immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") may at any time, with a view to ensuring the effective execution of a subsequent order, order the Registrar of Lands to place a restriction on the land register in respect of that immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 87(2)(a) that the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") shall not without the consent of the court ("a court of competent jurisdiction;") be mortgaged or otherwise encumbered; Section 87(2)(b) that the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") shall not without the consent of the court ("a court of competent jurisdiction;") , be attached or sold in execution; and Section 87(2)(c) vesting the Registrar of the High Court or Official Receiver concerned, as the case may be, when the estate of the owner of that immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is sequestrated; Section 87(2)(c)(i) vesting the Registrar of the High Court or Official Receiver concerned, as the case may be, when the estate of the owner of that immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is sequestrated; Section 87(2)(c)(ii) where the owners of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is a company or other corporate body which is being wound up, form part of the assets of that company or corporate body. Section 87(3)(a) make the necessary entries in his registers and the necessary endorsement on the office copy of the title deed, and thereupon any such restriction shall be effective against all persons except, in the case of a restriction contemplated in subsection (2)(b), against any person ("any natural or legal person;") in whose favour a mortgage bond or other charge was registered against the title deed of immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") prior to the endorsement of the restriction on the title deed of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , but shall lapse on the transfer of ownership of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned; Section 87(3)(b) when the original of the title deed is produced to him, make the necessary endorsement thereon. Section 87(4)(a) the estate of the owner of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is sequestrated; or Section 87(4)(b) where the owner of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is a company or other corporate body, that company or corporate body is being wound up, Section 87(5)(a) estate of the owner of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") was sequestrated, to have vested in the Registrar of the High Court or Official Receiver concerned, as the case may be, as if such a restriction were not so endorsed; or Section 87(5)(b) owner of the immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is a company or other legal entity which is being wound up, to have formed part of the assets of such company or legal entity as if such a restriction were not so endorsed. Section 87(6) A person ("any natural or legal person;") affected by an order contemplated in subsection (1) may at any time apply for the rescission of the order. - 88 Verify source ↗
CIVIL FORFEITURE - 88. Provision for expenses
AI-assisted research summary: A preservation order may provide for reasonable living expenses of a person with an interest in property subject to the order and that person's family or household.
Section 88. Provision for expenses Section 88(1) A preservation order may make such provision as the court ("a court of competent jurisdiction;") deems fit for reasonable living expenses of a person ("any natural or legal person;") holding an interest in property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") subject to a preservation order and his family or household. Section 88(2)(a) the person ("any natural or legal person;") cannot meet the expenses concerned out of his property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is not subject to the preservation order; and Section 88(2)(b) the person ("any natural or legal person;") has disclosed under oath all his interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") and has submitted to that court ("a court of competent jurisdiction;") an affidavit. - 89 Verify source ↗
CIVIL FORFEITURE - 89. Variation and rescission of orders
AI-assisted research summary: Section 89 sets out when and how preservation orders may be varied or rescinded, including court duties to rescind orders when proceedings conclude, to make consequential orders upon rescission of seizure orders, and duties to direct removal of caveats and for registrars to give effect.
Section 89. Variation and rescission of orders Section 89(1)(a) that the operation of the order concerned will deprive the applicant of the means to provide for his reasonable living expenses and cause undue hardship for the applicant; and Section 89(1)(a)(i) that the operation of the order concerned will deprive the applicant of the means to provide for his reasonable living expenses and cause undue hardship for the applicant; and Section 89(1)(a)(ii) that the hardship that the applicant will suffer as a result of the order outweighs the risk that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned may be destroyed, lost, damaged, concealed or transferred; and Section 89(1)(b) shall rescind the preservation order when the proceedings against the defendant ("a person against whom a prosecution for an offence has been instituted, irrespective of whether that person has been convicted or not;") concerned are concluded. Section 89(2) When a court ("a court of competent jurisdiction;") orders the rescission of an order authorising the seizure of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") under paragraph (a) of subsection (1), the court ("a court of competent jurisdiction;") shall make such other order as it considers appropriate for the proper, fair and effective execution of the preservation order concerned. Section 89(3)(a) variation or rescission of the order; Section 89(3)(b) variation of the terms of the appointment of the manager concerned; or Section 89(3)(c) discharge of the manager. Section 89(4)(a) vary or rescind the order; Section 89(4)(a)(i) vary or rescind the order; Section 89(4)(a)(ii) vary the terms of the appointment of the manager concerned; or Section 89(4)(a)(iii) discharge that manager; Section 89(4)(b) shall rescind the order and discharge the manager concerned if the relevant preservation order is rescinded. Section 89(5) A person ("any natural or legal person;") affected by an order in respect of immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") may, at any time, apply for the rescission of the order. Section 89(6)(i) may, if it deems it necessary in the interests of justice, at any time rescind the order; or Section 89(6)(ii) shall rescind the order if the relevant preservation order is rescinded. Section 89(7) If an order in respect of immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") is rescinded, the court ("a court of competent jurisdiction;") shall direct the Land Registrar concerned to lift any caveat entered by virtue of that order on the land registry in respect of that immovable property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , and the Registrar shall give effect to such direction. - 90 Verify source ↗
CIVIL FORFEITURE - 90. Application for forfeiture order
AI-assisted research summary: If a preservation order is in force, the Agency Director may apply to the High Court for a forfeiture order for specified property; the Director must give fourteen days' notice to persons who served notice under section 83(3).
Section 90. Application for forfeiture order Section 90(1) If a preservation order is in force, the Agency Director ("the Director of the Agency appointed under(2);") may apply to the High Court for an order forfeiting to the Government all or any of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that is subject to the preservation order. Section 90(2) The Agency Director ("the Director of the Agency appointed under(2);") shall give fourteen days notice of an application under subsection (1) to every person ("any natural or legal person;") who served notice in terms of section 83 (3). Section 90(3) A notice under subsection (2) shall be served in accordance with the provisions of the Civil Procedure Act ( Cap. 21 ). Section 90(4)(a) oppose the making of the order; or Section 90(4)(b) excluding his interest in that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") from the operation of the order; or Section 90(4)(b)(i) excluding his interest in that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") from the operation of the order; or Section 90(4)(b)(ii) varying the operation of the order in respect of that property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , - 91 Verify source ↗
CIVIL FORFEITURE - 91. Late service of notice
AI-assisted research summary: A person who failed to serve the section 83(3) notice may apply within 14 days for leave to serve it late; the court must make cost orders and may regulate the applicant's further participation; notices served after leave must include particulars and an affidavit.
Section 91. Late service of notice Section 91(1) A person ("any natural or legal person;") who, for any reason, does not serve notice in terms of section 83 (3) may, within fourteen days of his becoming aware of the existence of a preservation order, apply to the court for leave to serve that notice out of time. Section 91(2) An application under subsection (1) may be made before or after the date on which an application for a forfeiture order is made under section 90 (1), but shall be made before judgment is given in respect of such an application for a forfeiture order. Section 91(3)(a) has for sufficient reason failed to serve notice in terms of section 83 (3); and Section 91(3)(b) has an interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") which is subject to the preservation order. Section 91(4)(a) shall make any order as to costs against the applicant; and Section 91(4)(b) may make any order to regulate the further participation of the applicant in proceedings concerning an application for a forfeiture order, which it deems appropriate. Section 91(5) A notice served after leave has been obtained under this section shall contain full particulars of the chosen address of the person ("any natural or legal person;") who serves such notice for the delivery of documents concerning further proceedings under this part and shall be accompanied by the affidavit referred to in section 83 (5). - 92 Verify source ↗
CIVIL FORFEITURE - 92. Making of forfeiture order
AI-assisted research summary: The Court may make ancillary orders when it makes a forfeiture order (including orders to facilitate transfer of forfeited property to the Government), and the Registrar of the High Court who made the order must publish notice in the Gazette no more than thirty days after the order.
Section 92. Making of forfeiture order Section 92(1)(a) has been used or is intended for use in the commission of an offence ; or Section 92(1)(b) is proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") . Section 92(2) The Court may, when it makes a forfeiture order or at any time thereafter, make any ancillary orders that it considers appropriate, including orders for and with respect to facilitating the transfer to the Government of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") forfeited to it under such an order. Section 92(3) The absence of a person ("any natural or legal person;") whose interest in property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") may be affected by a forfeiture order does not prevent the Court from making the order. Section 92(4) The validity of an order under subsection (1) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned is in some way associated. Section 92(5) The Registrar of the High Court making a forfeiture order shall publish a notice thereof in the Gazette as soon as practicable but not more than thirty days after the order is made. Section 92(6)(a) before the period allowed for an application under section 89 or an appeal under section 96 has expired; or Section 92(6)(b) before such an application or appeal has been disposed of. - 93 Verify source ↗
CIVIL FORFEITURE - 93. Protection of third parties
AI-assisted research summary: Third parties who claim an interest in property subject to a forfeiture order may apply to court within twelve months; applicants must give at least fourteen days' written notice to the Agency Director, who shall be a party to the proceedings; the court may order return of property or payment of value; applicants or the Agency Director may appeal.
Section 93. Protection of third parties Section 93(1)(a) that the person ("any natural or legal person;") was not in any way involved in the commission of the offence ; and Section 93(1)(b) for sufficient consideration; and Section 93(1)(b)(i) for sufficient consideration; and Section 93(1)(b)(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") was, at the time he acquired it, tainted property , Section 93(2) Subject to subsection (3), where a forfeiture order has already been made directing the forfeiture of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") , a person ("any natural or legal person;") who claims an interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") may, before the end of the period of twelve months commencing on the day on which the forfeiture order is made, apply under this subsection to the court ("a court of competent jurisdiction;") for an order under subsection (1). Section 93(3)(a) had knowledge of the application for the forfeiture order before the order was made; or Section 93(3)(b) appeared at the hearing of that application, Section 93(4) A person ("any natural or legal person;") who makes an application under subsection (1) or (2) shall give not less than fourteen days written notice of the making of the application to the Agency Director ("the Director of the Agency appointed under(2);") who shall be a party to any proceedings in the application. Section 93(5) An applicant or the Agency Director ("the Director of the Agency appointed under(2);") may in accordance with the High Court rules, appeal to the Court of Appeal against an order made under subsection (1). Section 93(6)(a) direct that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") or Part thereof to which the interest of the applicant relates, be returned to the applicant; or Section 93(6)(b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant. Section 93(7)(a) before making a confiscation order ("an order referred to in;") , or Section 93(7)(b) in the case of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in respect of which a restraining order was made, where that order was served in accordance with section 68 , or in the case of property in respect of which a court order has been made authorizing the seizure of the property, - 94 Verify source ↗
CIVIL FORFEITURE - 94. Exclusion of interests inproperty
AI-assisted research summary: Section 94. Exclusion of interests inproperty Section 94(1)(a) under section 90 (3); or Section 94(1)(b) by a person ("any natural or legal person;") referred to in section 91 (1), Section 94(2)(a) has acquired the interest concerned
Section 94. Exclusion of interests inproperty Section 94(1)(a) under section 90 (3); or Section 94(1)(b) by a person ("any natural or legal person;") referred to in section 91 (1), Section 94(2)(a) has acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest; and Section 94(2)(b) where the applicant had acquired the interest concerned after the commencement of this Act, that such person ("any natural or legal person;") neither knew nor had reasonable grounds to suspect that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in which the interest is held is the proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") . Section 94(3)(a) neither knew nor had reasonable grounds to suspect that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in which the interest is held has been used or is intended for use in the commission of an offence ; or Section 94(3)(b) where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned in connection with the commission of an offence . Section 94(4) If an applicant for an order under subsection (1) adduces evidence to show that he did not know or did not have reasonable grounds to suspect that the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in which the interest is held is tainted property , the Agency Director ("the Director of the Agency appointed under(2);") may submit a return of the service on the applicant of a notice issued under section 90 (3) in rebuttal of that evidence in respect of the period since the date of such service. Section 94(5) Where the Agency Director ("the Director of the Agency appointed under(2);") submits a return of the service on the applicant under subsection (4), the applicant shall, in addition to the facts referred to in subsections (2)(a) and (b), also prove on a balance of probabilities that, since such service, he has taken all reasonable steps to prevent the further use of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned in the commission of an offence . Section 94(6) The High Court making an order for the exclusion of an interest in property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") under subsection (1) may, in the interest of the administration of justice or in the public interest, make that order upon the conditions that the High Court deems appropriate, including a condition requiring the person ("any natural or legal person;") who applied for the exclusion to take all reasonable steps, within a period that the High Court may determine, to prevent the future use of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in connection with the commission of an offence . - 95 Verify source ↗
CIVIL FORFEITURE - 95. Forfeiture order by default
AI-assisted research summary: Section 95 lets the High Court make a forfeiture order by default (including orders it could have made under section 88), make any other appropriate order, or make no order; the High Court may call on the Agency Director to adduce further evidence before making an order; an affected person may, within twenty days of learning of the order, set the matter down for variation or rescission; and a competent court may, on good cause shown, vary or rescind the default order.
Section 95. Forfeiture order by default Section 95(1)(a) make any order by default which the High Court could have made under sections 88 (1) and (2); Section 95(1)(b) make such order as the High Court may consider appropriate in the circumstances; or Section 95(1)(c) make no order. Section 95(2) The High Court may, before making an order in terms of subsection (1), call upon the Agency Director ("the Director of the Agency appointed under(2);") to adduce such further evidence, either in writing or orally, in support of his application as the High Court may consider necessary. Section 95(3) A person ("any natural or legal person;") whose interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned is affected by the forfeiture order or other order made by the High Court under subsection (1) may, within twenty days after that person ("any natural or legal person;") has acquired knowledge of such order or direction, set the matter down for variation or rescission by the High Court. Section 95(4) The court ("a court of competent jurisdiction;") may, upon good cause shown, vary or rescind the default order or give any other direction on such terms as it deems appropriate. - 96 Verify source ↗
CIVIL FORFEITURE - 96. Exclusion of interests in forfeitedproperty
AI-assisted research summary: A person who was entitled to notice but did not receive it may apply to the High Court within 45 days after the notice is published in the Gazette to exclude or vary the operation of a forfeiture order in respect of their interest; the High Court may make such an order if it finds on a balance of probabilities that the applicant falls within specified provisions of section 91.
Section 96. Exclusion of interests in forfeitedproperty Section 96(1) A person ("any natural or legal person;") affected by a forfeiture order who was entitled to receive notice of the application for the order under section 91 (2), but did not receive such notice, may, within forty five days after the notice is published in the Gazette , apply to the High Court for an order excluding his interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned from the operation of the order, or varying the operation of the order in respect of such property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 96(2) The hearing of the application shall, to the extent practicable and consistent with the interests of justice be held within thirty days of the filing of the application. Section 96(3) The High Court may make an order under subsection (1) if it finds on a balance of probabilities that the applicant for the order falls within the provisions of subsections (2) or (3) of section 91 . Section 96(4) The provisions of section 94 (4) and (5) shall apply to any proceedings under this section. - 97 Verify source ↗
CIVIL FORFEITURE - 97. Appeal against forfeiture order
AI-assisted research summary: Any preservation order and any order authorizing the seizure of property that is in force at the time of a decision to make a forfeiture order under section 92(1) remains in force pending the outcome of any appeal against that decision.
Section 97. Appeal against forfeiture order Section Any preservation order and any order authorizing the seizure of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned or other ancillary order which is in force at the time of any decision regarding the making of a forfeiture order under section 92 (1) shall remain in force pending the outcome of any appeal against the decision concerned. - 98 Verify source ↗
CIVIL FORFEITURE - 98. Effect of forfeiture order
AI-assisted research summary: If the High Court makes a forfeiture order and no manager is appointed for the property, the High Court may appoint a manager; when the order takes effect the property is forfeited to the Government and vests in the manager, and the manager may take possession of the property on behalf of the Government from any person in possession or entitled to possession.
Section 98. Effect of forfeiture order Section 98(1) Where the High Court has made a forfeiture order and a manager has not been appointed in respect of any of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") concerned, the High Court may appoint a manager to perform any of the functions referred to in section 99 in respect of that property. Section 98(2) On the date when a forfeiture order takes effect the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") subject to the order shall be forfeited to the Government and vests in the manager on behalf of the Government. Section 98(3) Upon a forfeiture order taking effect the manager may take possession of on the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") subject to the order on behalf of the Government from any person ("any natural or legal person;") in possession, or entitled to possession, of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . - 99 Verify source ↗
CIVIL FORFEITURE - 99. Fulfilment of forfeiture order
AI-assisted research summary: Forfeited property and proceeds are to be placed into the Criminal Assets Recovery Fund; rights in such forfeited property expire and persons who possessed the property immediately before forfeiture (or those acting with them) may not buy the forfeited property at sales held by the manager; expenses related to forfeiture and sale are to be paid from the Fund.
Section 99. Fulfilment of forfeiture order Section 99(1)(a) deposit any moneys forfeited into the Fund ("the Criminal Assets Recovery Fund established under;") ; Section 99(1)(b) deliver any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") forfeited into the Fund ("the Criminal Assets Recovery Fund established under;") ; or Section 99(1)(c) dispose of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") forfeited by sale or any other means and deposit the proceeds of the sale or disposition into the Fund ("the Criminal Assets Recovery Fund established under;") . Section 99(2) Any right or interest in forfeited property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") not exercisable by or transferable to the Government, shall expire and shall not revert to the person ("any natural or legal person;") who has possession, or was entitled to possession, of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") immediately before the forfeiture order took effect. Section 99(3) A person ("any natural or legal person;") who has possession, or was entitled to possession, of forfeited property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") immediately before the forfeiture order took effect, or any person ("any natural or legal person;") acting together with, or on behalf of that person ("any natural or legal person;") , shall not be eligible to purchase forfeited property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") at any sale held by the manager. Section 99(4) The expenses incurred in connection with the forfeiture and the sale, including expenses of seizure, maintenance and custody of the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") pending its disposition, advertising and the High Court costs shall be defrayed out of the Fund ("the Criminal Assets Recovery Fund established under;") .
Part X
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS
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PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS - 103. Production orders
AI-assisted research summary: Production orders may require documents relating to identifying, locating or quantifying property or tainted property; documents produced may be inspected, copied and retained as reasonably necessary; where a police officer retains produced documents he must make a copy available to the person who produced them.
Section 103. Production orders Section 103(1)(a) a document relevant to identifying, locating or quantifying property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of the person ("any natural or legal person;") , or to identifying or locating a document necessary for the transfer of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of such person ("any natural or legal person;") ; or Section 103(1)(b) a document relevant to identifying, locating or quantifying tainted property in relation to the offence , or to identifying or locating a document necessary for the transfer of tainted property in relation to the offence , Section 103(2)(a) inspect the documents; Section 103(2)(b) make copies of the documents; or Section 103(2)(c) retain the documents for as long as is reasonably necessary for the purposes of this Act. Section 103(3) Where a police officer retains documents produced to him, he shall make a copy of the documents available to the person ("any natural or legal person;") who produced them. - 104 Verify source ↗
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS - 104. Evidential value of information
AI-assisted research summary: Documents produced under an order in this Part (and information or things obtained from them) are not admissible in criminal proceedings against the person who produced them, except in proceedings under section 107.
Section 104. Evidential value of information Section 104(1) Where a person ("any natural or legal person;") produces a document pursuant to an order under this Part, the production of the document , or any information, document or things obtained as a direct or indirect consequence of the production of the document , shall not admissible against the person ("any natural or legal person;") in any criminal proceedings except proceedings under section 107 . Section 104(2) For the purposes of subsection (1), proceedings on an application for a restraining order, or a confiscation order ("an order referred to in;") are civil proceedings. - 105 Verify source ↗
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS - 105. Failure to comply with a production order
AI-assisted research summary: It is an offence for any natural or legal person to contravene a production order without reasonable cause or to knowingly produce or provide a document that is materially false or misleading; penalties include imprisonment up to seven years or fines (up to two million shillings for individuals, up to ten million shillings for corporations).
Section 105. Failure to comply with a production order Section 105(1)(a) contravenes the order without reasonable cause; or Section 105(1)(b) knowingly produces or makes available a document known to the person ("any natural or legal person;") to be false or misleading in a material particular. Section 105(2)(a) in the case of a natural person ("any natural or legal person;") , to imprisonment for a term not exceeding seven years or a fine not exceeding two million shillings or to both; or, Section 105(2)(b) in the case of a body corporate, to a fine not exceeding ten million shillings. - 106 Verify source ↗
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS - 106. Power to search for and seize documents relevant to locatingproperty
AI-assisted research summary: Police officers have the power to enter land or premises, search for documents described in section 103(1), and seize documents they reasonably believe are relevant to an offence.
Section 106. Power to search for and seize documents relevant to locatingproperty Section 106(1)(a) enter upon land or into premises; Section 106(1)(b) search the land or premises for any document of the type described in section 103 (1); and Section 106(1)(c) seize any document found in the course of that search that the police officer believes, on reasonable grounds, to be a relevant document in relation to an offence , provided that the entry, search and seizure is made. Section 106(2)(a) searches or causes to be searched any building or place; or Section 106(2)(b) detains, searches or arrests any person ("any natural or legal person;") , - 107 Verify source ↗
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS - 107. Search warrant for location of documents relevant to locatingproperty
AI-assisted research summary: Police officers may obtain a search warrant to enter premises and seize documents relevant to an offence under the conditions listed in Section 107.
Section 107. Search warrant for location of documents relevant to locatingproperty Section 107(1)(a) a person ("any natural or legal person;") has been charged or convicted of an offence ; or Section 107(1)(b) a police officer has reasonable grounds for suspecting that there is or may be, within the next seventy-two hours, upon any land or in any premises, a document of the type described in section 103 (1) in relation to the offence, Section 107(2)(a) to enter upon the land or into any premises and to search the land or premises for property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of that kind; and Section 107(2)(b) to seize property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") found in the course of the search that the police officer believes on reasonable grounds to be property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") of that kind. Section 107(3)(a) a production order has been given in respect of the document and has not been complied with; or Section 107(3)(b) a production order in respect of the document would be unlikely to be effective; or Section 107(3)(c) the investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the police officer does not gain immediate access to the document without any notice to any person ("any natural or legal person;") ; or Section 107(3)(d) the document involved cannot be identified or described with sufficient particularity to enable a production order to be obtained. Section 107(4)(a) the purpose for which it is issued, including a reference to the nature of the relevant offence ; Section 107(4)(b) a description of the kind of documents authorised to be seized; Section 107(4)(c) a time at which the warrant ceases to be in force; and Section 107(4)(d) whether entry is authorised to be made at any time of the day or night or during specified hours. Section 107(5)(a) a document of the type described in section 103 (1) that the police officer believes on reasonable grounds to relate to the relevant offence, or to another offence; or Section 107(5)(b) anything the police officer believes on reasonable grounds will afford evidence as to the commission of an offence , - 108 Verify source ↗
PRODUCTION ORDERS AND OTHER INFORMATION GATHERING POWERS - 108. Searches conducted without written reasons
AI-assisted research summary: Searches conducted without written reasons
Section 108. Searches conducted without written reasons Section searches or causes to be searched any building or place; or
Part XI
CRIMINAL ASSETS RECOVERY FUND
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CRIMINAL ASSETS RECOVERY FUND - 109. Establishment of Criminal Assets RecoveryFund
AI-assisted research summary: Establishes the Criminal Assets Recovery Fund.
Section 109. Establishment of Criminal Assets RecoveryFund Section There is established a fund to be known as the Criminal Assets Recovery Fund ("the Criminal Assets Recovery Fund established under;") . - 110 Verify source ↗
CRIMINAL ASSETS RECOVERY FUND - 110. Finances of theFund
AI-assisted research summary: All moneys derived from the fulfilment of confiscation and forfeiture orders in Part VII to X form part of the Fund's finances.
Section 110. Finances of theFund Section all moneys derived from the fulfilment of confiscation and forfeiture orders stipulated in Part VII to X; - 111 Verify source ↗
CRIMINAL ASSETS RECOVERY FUND - 111. Administration of theFund
AI-assisted research summary: The Fund shall be administered by the Agency.
Section 111. Administration of theFund Section The Fund ("the Criminal Assets Recovery Fund established under;") shall be administered by the Agency ("the Assets Recovery Agency established under(1);") . - 112 Verify source ↗
CRIMINAL ASSETS RECOVERY FUND - 112. Functions of theAgencyunder this Part
AI-assisted research summary: Monies derived from concluded confiscation and forfeiture orders in Parts VII to X shall be paid into the Consolidated Fund (the Criminal Assets Recovery Fund).
Section 112. Functions of theAgencyunder this Part Section all monies derived from concluded confiscation and forfeiture orders stipulated in Parts VII to X shall be paid into the Consolidated Fund ("the Criminal Assets Recovery Fund established under;") ; and - 113 Verify source ↗
CRIMINAL ASSETS RECOVERY FUND - 113. Other matters to be prescribed
AI-assisted research summary: Regulations may prescribe the Fund's administrative operations and the use of properties and monies credited to the Fund; regulations made under subsection (1) must be laid before Parliament.
Section 113. Other matters to be prescribed Section 113(1)(a) the administrative operations of the Fund ("the Criminal Assets Recovery Fund established under;") ; and Section 113(1)(b) the utilization of properties and monies standing to the credit of the Fund ("the Criminal Assets Recovery Fund established under;") . Section 113(2) Regulations issued under subsection (1) shall be laid before Parliament. [Act No. 16 of 2021 , s. 21.]
Part XII
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS
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INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 114. Principles of mutuality
AI-assisted research summary: The principles of mutuality and reciprocity must be recognised at all times for the purposes of this Part.
Section 114. Principles of mutuality Section For the purposes of this Part, the principles of mutuality and reciprocity shall at all times be recognised. - 115 Verify source ↗
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 115. Request made by Kenya to other countries
AI-assisted research summary: Section 115 lists kinds of international assistance Kenya may request from other countries (evidence, search warrants, persons to assist, enforcement of restraint/forfeiture, service of orders, and other assistance).
Section 115. Request made by Kenya to other countries Section 115(1)(a) evidence to be taken, or information, documents or articles to be produced or obtained in that country; Section 115(1)(b) a warrant or other instrument authorizing search and seizure to be obtained and executed in that country; Section 115(1)(c) a person ("any natural or legal person;") from that country to come to Kenya to assist in the investigation or proceedings; Section 115(1)(d) a restraint order ("an order made under;") or forfeiture order made under this Act to be enforced in that country, or a similar order to be obtained and executed in that country to preserve property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that had it been located in Kenya would be subject to forfeiture or confiscation under this Act; Section 115(1)(e) an order or notice under this Act to be served on a person ("any natural or legal person;") in that country; or Section 115(1)(f) other assistance to be provided, whether pursuant to a treaty or other written arrangement between Kenya and that country or otherwise. Section 115(2) Requests by other countries to Kenya for assistance of a kind specified in subsection (1) may be made to the Attorney-General. - 116 Verify source ↗
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 116. Evidence, etc., obtained from another country
AI-assisted research summary: Evidence obtained from another country is to be received in evidence in Kenya.
Section 116. Evidence, etc., obtained from another country Section be received in evidence in Kenya; - 117 Verify source ↗
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 117. Transfer to Kenya of apersonto assist in an investigation or proceedings
AI-assisted research summary: A request under section 115(c) authorises the entry into and departure from Kenya, and the presence in Kenya, of the person who is the subject of the request for so long as required for the purposes of the request.
Section 117. Transfer to Kenya of apersonto assist in an investigation or proceedings Section 117(1) The effect of a request made pursuant to section 115 (c) shall be to authorise the entry into and departure from Kenya of the person who is the subject of the request, as well as the presence of the person in Kenya for so long as required for the purposes of the request. Section 117(2) Where the person ("any natural or legal person;") who is the subject of a request under section 111 (c) is in custody in the other country by virtue of a sentence or order of a court or tribunal exercising criminal jurisdiction, the effect of a request under section 115 (c) shall be to authorise the detention in custody of the person in transit to and from Kenya, and while in Kenya at such places as the Attorney-General may specify. Section 117(3)(a) be detained, prosecuted or punished for any offence that is alleged to have been committed, or was committed, prior to that person ("any natural or legal person;") ’s departure from the requested country pursuant to the request; Section 117(3)(b) be subjected to any civil suit in respect of any act or omission that is alleged to have occurred, or occurred, prior to that person ("any natural or legal person;") ’s departure from the requested country pursuant to the request; Section 117(3)(c) in any criminal proceeding in Kenya; or Section 117(3)(c)(i) in any criminal proceeding in Kenya; or Section 117(3)(c)(ii) subject to the requesting country conceding any claim by the person ("any natural or legal person;") to a privilege or immunity under the law of the requested country in any criminal proceedings in the requested country; or Section 117(3)(d) be required to give evidence or produce a document or thing in any proceeding in Kenya other than the proceeding to which the request relates. - 118 Verify source ↗
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 118. Requests to Kenya for evidence
AI-assisted research summary: When another country requests assistance to obtain evidence for an investigation or proceeding for an offence under its corresponding law, the Attorney-General may nominate a Kenyan court to receive the evidence; that nominated court has the same powers to secure witnesses, administer oaths and receive evidence as in other proceedings; the court must certify or verify evidence as specified by the Attorney-General and then furnish it to the Attorney-General for transmission to the requesting country.
Section 118. Requests to Kenya for evidence Section 118(1) Where country requests assistance from Kenya in obtaining evidence for the purpose of an investigation or a proceeding in relation to any offence under corresponding law of that country, the Attorney-General may nominate a court ("a court of competent jurisdiction;") in Kenya to receive such evidence as appears to the court ("a court of competent jurisdiction;") appropriate in order to give effect to the request. Section 118(2) The court ("a court of competent jurisdiction;") nominated pursuant to subsection (1) shall have the same power to secure the attendance of witnesses, administer oaths and receive evidence as it has for the purposes of other proceedings before the court ("a court of competent jurisdiction;") — Section 118(3) The evidence received by the court ("a court of competent jurisdiction;") shall be certified or verified by the court ("a court of competent jurisdiction;") in such manner as the Attorney-General specifies and then furnished to the Attorney-General for transmission to the requesting country. - 119 Verify source ↗
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 119. Requests to Kenya for search warrants
AI-assisted research summary: If a foreign country requests assistance to obtain and execute a search and seizure warrant and certain conditions are met, the Attorney-General may apply to the High Court for that warrant.
Section 119. Requests to Kenya for search warrants Section 119(1) Where a country requests assistance from Kenya in obtaining and executing a search and seizure warrant for the purposes of an investigation or proceedings relating to the corresponding law of that country, the Attorney-General may apply to the High Court for the warrant requested. Section 119(2)(a) a proceeding or investigation relating to a serious offence has commenced in the requesting country; and Section 119(2)(b) there are reasonable grounds for believing that evidence relevant to the investigation or proceedings is located in Kenya, Section 119(3) Any written law with respect to the procedure for the making and disposal of an application for the execution of a search warrant shall apply, as if the application were for the issue of a warrant under the Criminal Procedure Code ( Cap. 75 ). - 120 Verify source ↗
INTERNATIONAL ASSISTANCE IN INVESTIGATIONS AND PROCEEDINGS - 120. Requests to Kenya for the enforcement of certain orders
AI-assisted research summary: The High Court must register certain foreign restraint or confiscation orders on application by the Attorney-General, subject to conditions; the Attorney-General may apply for restraint orders and may remit forfeited property; persons entitled to notice have 30 days to object.
Section 120. Requests to Kenya for the enforcement of certain orders Section 120(1)(a) a court ("a court of competent jurisdiction;") or tribunal of another country issues a restraint order ("an order made under;") or confiscation order ("an order referred to in;") , (whether based upon criminal or in rem or other non-conviction based proceedings), in respect of an offence against the corresponding law of that country; and Section 120(1)(b) that country requests assistance from Kenya in enforcing those orders against property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") believed to be located in Kenya, Section 120(2) Where the Attorney-General applies to the High Court for the registration of an order pursuant to subsection (1) the High Court shall register the order. Section 120(3)(a) the order is final, not subject to appeal, and a certified copy of such order bearing the seal or the signature of the court ("a court of competent jurisdiction;") has been submitted; Section 120(3)(b) the person ("any natural or legal person;") against whom, or in relation to whose property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") the order has been made, received notice of the proceedings outside of Kenya and had an opportunity to defend his interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") ; and Section 120(3)(c) enforcement of the order would not be contrary to the interests of justice. Section 120(4) To preserve the availability of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in Kenya that is subject to confiscation proceedings that have been or are likely to be instituted in another country, the Attorney-General may apply to the court ("a court of competent jurisdiction;") to issue an order of restraint of the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") . Section 120(5) In issuing the order of restraint the court ("a court of competent jurisdiction;") may rely on information set forth in the request from the other country describing the nature of the pending investigations or proceedings and setting forth a reasonable basis to believe that the said property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") will be named in a confiscation order ("an order referred to in;") at the conclusion of the proceedings. Section 120(6) A copy of the application to register and enforce orders from another country shall be provided to any person ("any natural or legal person;") who appears to own or control or otherwise have a legal interest in the property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") in the manner prescribed in section 79 . Section 120(7) A person ("any natural or legal person;") entitled to notice pursuant to subsection (6) shall have thirty days from the date of such receipt of notice or publication, whichever is later, to file an objection contesting the enforcement of the order from another country. Section 120(8) Unless a person ("any natural or legal person;") contesting enforcement of an order from another country is able to establish one of the conditions of section 93 (1) the court may enter such orders as may be necessary to give effect to the orders of a court or tribunal of the other country and the court shall be bound by the findings of fact to the extent that they are stated in the foreign order. Section 120(9) Where an amount of money is to be paid under an order from another country is expressed in a currency other than that of Kenya, the amount shall be converted into the currency of Kenya on the basis of the official exchange rate prevailing as of the date of the registration of the order. Section 120(10) Where the Attorney-General considers it appropriate either because an international arrangement so requires or because it is permits or in the public interest, the Attorney-General may order that the whole or any part of any property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") forfeited pursuant subsection (7) or the value thereof be returned or remitted to the requesting state.
Part XIII
MISCELLANEOUS PROVISIONS
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MISCELLANEOUS PROVISIONS - 121. Access to information
AI-assisted research summary: Subsection (4) makes it an offence for any person to contravene subsection (3); on conviction the person may face up to three years' imprisonment, a fine up to two million shillings, or both.
Section 121. Access to information Section 121(1)(a) from disclosing any information relating to the activities, affairs or business of any other person ("any natural or legal person;") ; or Section 121(1)(b) from permitting any person ("any natural or legal person;") to have access to any registers, records or other documents, or electronic data ("representations, in any form, of information or concepts;") which have a bearing on the said activities, affairs or business, Section 121(2) The provisions of subsection (1) shall not be construed as prohibiting any Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") by whom or any other department or institution by which, or under the control of whom or which, any law referred to in subsection (4) is administered, or any board, institution or body established by or under any such law, from making any practical and reasonable procedural arrangements with regard to the furnishing of such information or the granting of the access contemplated in subsection (1) and according to which the information or the granting of the access contemplated in that subsection shall be furnished or granted with regard to any reasonable safeguards which any such Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") , authority, board, institution, body or person ("any natural or legal person;") , subject to the provisions of subsection (3), requires to maintain the confidentiality of such information, registers, records, documents or electronic media. Section 121(3)(a) for the purpose of performing that person ("any natural or legal person;") ’s functions in terms of this Act; Section 121(3)(b) in the course of adducing evidence in any criminal proceedings or proceedings in terms of this Act; or Section 121(3)(c) when required to do so by an order of a court ("a court of competent jurisdiction;") of law. Section 121(4) A person ("any natural or legal person;") who contravenes subsection (3) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years, or to a fine not exceeding two million shillings, or to both. [Act No. 16 of 2021 , s. 22.] - 122 Verify source ↗
MISCELLANEOUS PROVISIONS - 122. Investigations
AI-assisted research summary: The Attorney-General may, under written authority and before starting civil or criminal proceedings, direct a specific investigation when they have reason to believe a person or enterprise may hold information or documentary material relevant to an alleged offence.
Section 122. Investigations Section Whenever the Attorney-General has reason to believe that any person ("any natural or legal person;") may be in possession of information relevant to the commission or intended commission of an alleged offence in terms of this Act, or any person ("any natural or legal person;") or enterprise may be in possession, custody or control of any documentary material relevant to such alleged offence , the Attorney-General may, prior to the institution of any civil or criminal proceeding, under written authority direct a specific investigation. - 123 Verify source ↗
MISCELLANEOUS PROVISIONS - 123. Sharing of information
AI-assisted research summary: When an investigation is instituted under this Act (including investigations into other offences or into a person’s property, financial activities, affairs or business), the Commissioner‑General of the Kenya Revenue Authority or an official designated by that person shall be notified so the authorities can cooperate and share information.
Section 123. Sharing of information Section Notwithstanding the provisions of the Income Tax Act ( Cap. 470 ), and with regard to any other secrecy provision in any other Act, whenever any investigation is instituted in terms of this Act, including an investigation into any other offence, and an investigation into the property, financial activities, affairs or business of any person, the Commissioner-General of the Kenya Revenue Authority or any official designated by that person for this purpose, shall be notified of such investigation with a view to mutual cooperation and the sharing of information. - 124 Verify source ↗
MISCELLANEOUS PROVISIONS - 124. Hearings ofcourtto be open to public
AI-assisted research summary: Court hearings are generally open to the public, with specified exceptions allowing proceedings to be held behind closed doors and protections preventing disclosure of identifying witness information; breaches carry criminal penalties.
Section 124. Hearings ofcourtto be open to public Section 124(1) Subject to the provisions of this section, the hearings of the court ("a court of competent jurisdiction;") contemplated in this Act, except for ex parte applications, shall be open to the public. Section 124(2)(a) it would be in the interest of justice; or Section 124(2)(b) there is a likelihood that harm may ensue to any person ("any natural or legal person;") as a result of the proceedings being open, Section 124(3) An application for proceedings to be held behind closed doors may be brought by the Attorney-General or the manager referred to in section 68 and any other person referred to in subsection (2), and such application shall be heard behind closed doors. Section 124(4) The court ("a court of competent jurisdiction;") may at any time review its decision with regard to the question whether or not the proceedings shall be held behind closed doors. Section 124(5)(a) direct that no information relating to the proceedings, or any part thereof held behind closed doors, shall be made public in any manner; Section 124(5)(b) direct that no person ("any natural or legal person;") , in any manner, shall make public any information which may reveal the identity of any witness in the proceedings; and Section 124(5)(c) give such directions in respect of the record of proceedings as may be necessary to protect the identity of any witness: Section 124(6) A person ("any natural or legal person;") who discloses information in contravention of subsection (5) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding two years, or to a fine not exceeding five hundred thousand shillings, or to both. - 125 Verify source ↗
MISCELLANEOUS PROVISIONS - 125. Monitoring orders
AI-assisted research summary: An authorised officer may apply ex parte for a monitoring order requiring a reporting institution (financial institution and designated non-financial business and profession) to disclose account transaction information to that officer; the court may set the period; contravention or providing false information is punishable (natural person: up to 3 years imprisonment or fine up to 2 million shillings or both; body corporate: fine up to 10 million shillings).
Section 125. Monitoring orders Section 125(1) An authorised officer may apply, ex parte , for a monitoring order directing a reporting institution ("a financial institution and designated non-financial business and profession;") to give information to that officer. Section 125(2)(a) direct a reporting institution ("a financial institution and designated non-financial business and profession;") to disclose information obtained by it about transactions conducted through an account held by a particular person ("any natural or legal person;") with it; Section 125(2)(b) be for such a period as the court ("a court of competent jurisdiction;") may deem necessary. Section 125(3)(a) committed or was involved in the commission, or is about to commit or be involved in the commission of, a serious offence ; or Section 125(3)(b) benefited directly or indirectly, or is about to benefit directly or indirectly from the commission of a serious offence . Section 125(4)(a) the name or names in which the account is held or believed to be held; and Section 125(4)(b) the information that the institution is required to give. Section 125(5)(a) contravenes the order; or Section 125(5)(b) provides false or misleading information in purported compliance with the order, Section 125(6)(a) in the case of a natural person ("any natural or legal person;") , to imprisonment for a term not exceeding three years, or to a fine not exceeding two million shillings, or to both; or Section 125(6)(b) in the case of a body corporate, to a fine not exceeding ten million shillings. - 126 Verify source ↗
MISCELLANEOUS PROVISIONS - 126. Monitoring orders not to be disclosed
AI-assisted research summary: Persons listed as recipients in subsection (1) must not disclose the existence or operation of a monitoring order except to another such recipient and only for performing their duties; contravention is an offence punishable on conviction by imprisonment not exceeding three years or fines (two million shillings for natural persons; ten million shillings for bodies corporate).
Section 126. Monitoring orders not to be disclosed Section 126(1)(a) an officer or agent of the institution for the purpose of ensuring compliance with the order; Section 126(1)(b) a legal adviser for the purpose of obtaining legal advice or representation in respect of the order; or Section 126(1)(c) a police officer authorised in writing to receive the information. Section 126(2)(a) in the case of a natural person ("any natural or legal person;") , to imprisonment for a term not exceeding three years, or to a fine not exceeding two million shillings, or to both; or Section 126(2)(b) in the case of a body corporate, to a fine not exceeding ten million shillings. Section 126(3) A person ("any natural or legal person;") described in subsection (1) shall not disclose the existence or operation of a monitoring order except to another such person ("any natural or legal person;") , and may do so only for the purposes of the performance of his duties or functions. Section 126(4) A person ("any natural or legal person;") who contravenes the provisions of subsection (3) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding two million shillings or to both. Section 126(5) Nothing in this section prevents the disclosure of information concerning a monitoring order for the purposes of or in connection with legal proceedings or in the course of proceedings before a court ("a court of competent jurisdiction;") , provided that nothing in this section shall be construed as requiring a legal adviser to disclose to any court ("a court of competent jurisdiction;") the existence or operation of a monitoring order. - 127 Verify source ↗
MISCELLANEOUS PROVISIONS - 127. Conduct ofpersonoutside Kenya
AI-assisted research summary: Conduct by any natural or legal person that occurs outside Kenya is an offence under this Act if that conduct would be an offence in Kenya.
Section 127. Conduct ofpersonoutside Kenya Section The conduct of a person ("any natural or legal person;") that takes place outside Kenya constitutes an offence under this Act if the conduct would constitute an offence against a provision of any law in Kenya if it occurred in Kenya. - 128 Verify source ↗
MISCELLANEOUS PROVISIONS - 128. Admissibility of Electronic Evidence
AI-assisted research summary: Any court handling a matter under this Act may admit electronic evidence.
Section 128. Admissibility of Electronic Evidence Section Notwithstanding the provisions of the Evidence Act ( Cap. 80 ), any court hearing any matter in relation to this Act may admit electronic evidence. - 129 Verify source ↗
MISCELLANEOUS PROVISIONS - 129. Admissibility of statements and documents of persons who are dead or cannot be traced, etc
AI-assisted research summary: Rules on admissibility of statements and documents of persons who are dead or cannot be traced, including any statement made by any person to an officer of any enforcement agency in the course of an investigation under this Act.
Section 129. Admissibility of statements and documents of persons who are dead or cannot be traced, etc Section any statement made by any person ("any natural or legal person;") to an officer of any enforcement agency in the course of an investigation under this Act; and - 130 Verify source ↗
MISCELLANEOUS PROVISIONS - 130. Preservation of secrecy
AI-assisted research summary: No person shall disclose information obtained under this Act except for performance of duties, when lawfully required by a court, or under written law; persons who learn of disclosures made in contravention of that rule must not pass the information on; contravention is an offence punishable by up to one year imprisonment or a fine not exceeding one million shillings or both.
Section 130. Preservation of secrecy Section 130(1) Except for the purpose of the performance of his duties or the exercise of his functions under this Act or when lawfully required to do so by any court ("a court of competent jurisdiction;") or under the provisions of any written law, no person ("any natural or legal person;") shall disclose any information or matter which has been obtained by him in the performance of his duties or the exercise of his functions under this Act. Section 130(2) A person ("any natural or legal person;") who has any information or matter which to his knowledge has been disclosed in contravention of subsection (1) shall not disclose that information or matter to any other person ("any natural or legal person;") . Section 130(3) A person ("any natural or legal person;") who contravenes subsection (1) or (2) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding one year or a fine not exceeding one million shillings or to both. - 130A Verify source ↗
MISCELLANEOUS PROVISIONS - 130A. Rights and fundamental freedoms
AI-assisted research summary: All persons subject to this Act are entitled to enjoy all rights and fundamental freedoms in the Constitution, subject to the limits in Article 24, this Act or any other Act.
Section 130A. Rights and fundamental freedoms Section All persons subject to this Act shall enjoy all rights and fundamental freedoms enshrined in the Constitution unless limited to the extent specified in Article 24 of the Constitution, this Act or any other Act. [Act No. 16 of 2021 , s. 23.] - 130B Verify source ↗
MISCELLANEOUS PROVISIONS - 130B. Limitation of right to privacy
AI-assisted research summary: The right to privacy is limited only to the nature and extent contemplated under subsection (2).
Section 130B. Limitation of right to privacy Section 130B(1) The right to privacy guaranteed under Article 31 of the Constitution is hereby limited under Article 24 of the Constitution only to the nature and extent contemplated under subsection (2). Section 130B(2)(a) the person ("any natural or legal person;") ’s home or property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") may be searched; Section 130B(2)(b) the person ("any natural or legal person;") ’s possessions may be seized; Section 130B(2)(c) information relating to that person ("any natural or legal person;") ’s financial, family or private affairs where required may be revealed; or Section 130B(2)(d) the privacy of a person ("any natural or legal person;") ’s communications may be investigated or otherwise interfered with. Section 130B(3) A limitation of a right under subsection (1) shall apply only for the purpose of the prevention, detection, investigation and prosecution of proceeds of crime ("any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis,property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;") , money laundering ("an offence under any of the provisions of sections,and;") and financing of terrorism and proliferation financing. [Act No. 16 of 2021 , s. 23, Act No. 10 of 2023 , Sch.] - 130C Verify source ↗
MISCELLANEOUS PROVISIONS - 130C. Transitional provision
AI-assisted research summary: The Agency Director shall serve for the remaining period of the contract or the period in section 53 (2A), whichever is longer.
Section 130C. Transitional provision Section The Agency Director ("the Director of the Agency appointed under(2);") shall serve for the remaining period of the contract or the period stipulated in section 53 (2A), whichever is longer. [Act No. 16 of 2021 , s. 23.] - 131 Verify source ↗
MISCELLANEOUS PROVISIONS - 131. Supersession
AI-assisted research summary: If there is a conflict between this Act and any written law on any matter, the provisions of this Act shall prevail.
Section 131. Supersession Section Where there is a conflict between the provisions of this Act and the provisions of any written law with regard to any matter, the provisions of this Act shall prevail. - 132 Verify source ↗
MISCELLANEOUS PROVISIONS - 132. Amendment of Schedules
AI-assisted research summary: The Cabinet Secretary may, by order published in the Gazette, amend the First, Second or Fourth Schedules.
Section 132. Amendment of Schedules Section 132(1) The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to finance;") may, by order in the Gazette , amend the First, Second or the Fourth Schedules. Section 132(2) An Order made under subsection (1) shall not decrease the monetary sums specified in the Second and Fourth Schedules. [Act No. 16 of 2021 , s. 24.] - 134 Verify source ↗
MISCELLANEOUS PROVISIONS - 134. Regulations
AI-assisted research summary: Section 134 empowers the making of regulations on specified matters and authorises regulations that require reporting institutions to perform customer due diligence, maintain records, report suspicious transactions, and implement internal reporting, training, auditing and anti-money-laundering programmes.
Section 134. Regulations Section 134(1)(a) with regard to the nature of the information contemplated in section 44 and the manner in which it is to be reported; Section 134(1)(b) with regard to the designation of persons for purposes of section 47 ; Section 134(1)(c) in consultation with the Chief Justice, prescribing from time to time the maximum allowable costs for legal services in connection with an application for a preservation of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") order or forfeiture order or the defending of a criminal charge which may be met out of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") that is subject to a preservation of property ("all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;") order; Section 134(1)(d) providing for high risk customers or clients; and Section 134(1)(e) providing for any matter which he may consider necessary or expedient to prescribe or to regulate in order to achieve the objects of this Act. Section 134(2)(a) regulations ("regulations made under this Act;") that require reporting institution ("a financial institution and designated non-financial business and profession;") to exercise due diligence and take reasonable measures to satisfy themselves as to the true identity of any person ("any natural or legal person;") seeking to enter into a business relationship with them, or seeking to carry out a transaction or series of transactions with them, by requiring the person ("any natural or legal person;") to produce an official record reasonably capable of establishing the true identity of the person ("any natural or legal person;") : Section 134(2)(b) regulations ("regulations made under this Act;") that require reporting institutions to establish and maintain records of transactions; Section 134(2)(c) regulations ("regulations made under this Act;") that require reporting institutions to report transactions or activities that they have reasonable grounds to believe are suspicious or unusual as defined by the regulations ("regulations made under this Act;") and this Act; or Section 134(2)(d) regulations ("regulations made under this Act;") that require reporting institutions to establish and maintain internal reporting procedures to make employees aware of domestic laws relating to money-laundering, and the procedures and related policies established and maintained by them pursuant to this Act, to provide employees with appropriate training in the recognition and handling of suspicious activities that may be indicative of money-laundering, to provide for an independent auditing of monitoring procedures, and to maintain an adequate anti- money laundering ("an offence under any of the provisions of sections,and;") compliance programme.
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Proceeds of Crime and Anti-Money Laundering Act
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