Prevention of Organised Crimes Act

This Act may be cited as the Prevention of and Organised Crimes Act.

Jurisdiction: Kenya
Instrument: Act or statute
Citation: Cap. 59
Version: 11 Dec 2023
Language: en
Official source: View official record ↗

Source attribution: Source: Kenya Law

Statute overview

About this statute

This Act may be cited as the Prevention of and Organised Crimes Act. This section provides definitions for terms used in the Act, including 'benefit', 'criminal group funds', 'Cabinet Secretary', 'monetary instruments', 'organised criminal group', 'property', 'public officer', 'records', 'serious crime', and 'structured group'. States: "is a member or professes to be a member of an organised criminal group". Engaging in organised criminal activity (as specified in section 3) is an offence punishable by a fine not exceeding five million shillings, imprisonment up to fifteen years, or both; if the act in section 3(n) causes death, a member of the organized criminal group is liable to imprisonment for life. The section makes it an offence to be present at, administer, take, or compel another to take an oath or engagement that binds a person to an organised criminal group or activity; on conviction the offender is liable to imprisonment for life. There is no defence of compulsion unless the person reports the matter to police or another law enforcement agency within five days of taking the oath.

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Provisions of Prevention of Organised Crimes Act

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Part I

PRELIMINARY

1
PRELIMINARY - 1. Short title.
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This Act may be cited as the Prevention of and Organised Crimes Act.

Section 1. Short title. Section This Act may be cited as the Prevention of and Organised Crimes Act.
2
PRELIMINARY - 2. Interpretation.
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This section provides definitions for terms used in the Act, including 'benefit', 'criminal group funds', 'Cabinet Secretary', 'monetary instruments', 'organised criminal group', 'property', 'public officer', 'records', 'serious crime', and 'structured group'.

Section 2. Interpretation. Section In this Act, unless the context otherwise requires— "benefit" means money, valuable consideration, office or employment; "criminal group funds" means— (a) funds which may be applied or used for the commission of, or in furtherance of or in connection with, acts of an organised criminal group ; (b) the proceeds of the commission of acts of an organised criminal group or of activities in furtherance of or in connection with such acts; or (c) the resources of an organised criminal group ; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to internal security; "monetary instruments" means— (a) coins and paper currency of Kenya, or of a foreign country, designated as legal tender and which is customarily used and accepted as a medium of exchange in the country of issue; (b) travellers’ cheques, personal cheques, bank cheques, money orders, investment securities; or (c) any other negotiable instruments that are in bearer form, or other form through which title passes upon delivery; "organised criminal group" means a structured group ("a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure") of three or more persons, existing for a period of time and acting in concert with the aim of— (a) committing one or more serious crimes; or (b) committing one or more serious crimes in order to obtain, directly or indirectly, a financial or other material benefit ("money, valuable consideration, office or employment;") , other advantage for the organized criminal group or any of the members of organized criminal group; and includes a group declared an organised criminal group under section 22 of this Act; "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 document or instruments evidencing title to or interest in such property; "public officer" means a public officer as defined in the Public Officer Ethics Act ( Cap. 185B ); "records" includes— (a) a photographic record; and (b) an electronic or magnetic record, and any computer, disk, tape, apparatus or thing in or on which the record is stored; "serious crime" means conduct constituting an offence against a provision of any law in Kenya punishable by a term of imprisonment of at least six months, 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; and "structured group" means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.

Part II

ORGANISED CRIMINAL ACTIVITIES

3
ORGANISED CRIMINAL ACTIVITIES - 3. Organised criminal activities.
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States: "is a member or professes to be a member of an organised criminal group".

Section 3. Organised criminal activities. Section is a member or professes to be a member of an organised criminal group ;
4
ORGANISED CRIMINAL ACTIVITIES - 4. Offence.
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Engaging in organised criminal activity (as specified in section 3) is an offence punishable by a fine not exceeding five million shillings, imprisonment up to fifteen years, or both; if the act in section 3(n) causes death, a member of the organized criminal group is liable to imprisonment for life.

Section 4. Offence. Section 4(1) A person who engages in any organised criminal activity specified in section 3 commits an offence and shall, upon conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding fifteen years, or both. Section 4(2) If as a result of the act referred to in section 3 (n) a person dies, the member of the organized criminal group shall on conviction be liable to imprisonment for life.
5
ORGANISED CRIMINAL ACTIVITIES - 5. Oathing.
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The section makes it an offence to be present at, administer, take, or compel another to take an oath or engagement that binds a person to an organised criminal group or activity; on conviction the offender is liable to imprisonment for life. There is no defence of compulsion unless the person reports the matter to police or another law enforcement agency within five days of taking the oath.

Section 5. Oathing. Section 5(1)(a) is present at and consents to the administering of any oath or engagement in the nature of an oath purporting to bind the person who takes it to belong to an organised criminal group or engage in an organised criminal activity; Section 5(1)(b) administers an oath or engagement in the nature of an oath purporting to bind the person who takes it to belong to an organised criminal group or engage in an organised criminal activity; Section 5(1)(c) takes any such oath or engagement in the nature of an oath; or Section 5(1)(d) by use of physical force, or by threat or intimidation of any kind compels another person to take such oath or engagement in the nature of an oath, commits an offence and shall on conviction be liable to imprisonment for life. Section 5(2) It shall not be a defence for a person who takes any oath or engagement in the nature of an oath referred to in subsection (1) to prove that he was compelled to do so unless, within five days after the taking of such oath or engagement in the nature of an oath, he reported to the police or any other law enforcement agency.
6
ORGANISED CRIMINAL ACTIVITIES - 6. Aiding and abetting.
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Persons who attempt, aid, abet, counsel, procure or conspire with another to commit an offence under this Act commit an offence and, on conviction, face a fine not exceeding one million shillings or imprisonment for a term not exceeding fourteen years, or both.

Section 6. Aiding and abetting. Section A person who attempts, aids, abets, counsels, procures, or conspires with another to commit an offence under this Act commits an offence and shall, upon conviction, be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding fourteen years, or both.
7
ORGANISED CRIMINAL ACTIVITIES - 7. Member of anorganised criminal group.
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States an admission of being a member of an organised criminal group.

Section 7. Member of anorganised criminal group. Section admits to being a member of an organised criminal group ;

Part III

OBSTRUCTION OF JUSTICE

10
OBSTRUCTION OF JUSTICE - 10. Obstructing apublic officer.
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A person who resists or willfully obstructs a public officer (or someone lawfully aiding that officer) while the officer is executing duties under this Act commits an offence.

Section 10. Obstructing apublic officer. Section A person who resists or willfully obstructs a public officer ("a public officer as defined in the Public Officer Ethics Act ();") in the execution of his duties under this Act, or a person lawfully acting in aid of the public officer ("a public officer as defined in the Public Officer Ethics Act ();") commits an offence.
11
OBSTRUCTION OF JUSTICE - 11. False statement.
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A person who, intending to mislead, makes a false statement under this Act knowing it is false commits an offence.

Section 11. False statement. Section A person who, with intent to mislead, makes a false statement under this Act knowing that the statement is false commits an offence.
12
OBSTRUCTION OF JUSTICE - 12. Intimidation.
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A person must abstain from doing anything that the person has a lawful right to do.

Section 12. Intimidation. Section to abstain from doing anything that the person has a lawful right to do;
13
OBSTRUCTION OF JUSTICE - 13. Disclosure of information, etc.
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Prohibits disclosing to another person information likely to prejudice an investigation or interfering with material likely relevant to an investigation, subject to defences that the person did not know and had no reasonable cause to suspect the effect on an investigation, or had a lawful excuse.

Section 13. Disclosure of information, etc. Section 13(1)(a) discloses to another person anything which is likely to prejudice the investigation; or Section 13(1)(b) interferes with material which is likely to be relevant to the investigation, Section 13(2)(a) that he did not know and had no reasonable cause to suspect that the disclosure or interference was likely to affect an investigation carried out under this Act; or Section 13(2)(b) that he had a lawful excuse for the disclosure or interference.
14
OBSTRUCTION OF JUSTICE - 14. Penalty under this Part.
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A person who commits an offence under this Part, on conviction, is liable to a fine up to five hundred thousand shillings, or imprisonment up to ten years, or both.

Section 14. Penalty under this Part. Section A person who commits an offence under this Part shall, on conviction, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding ten years or to both.
8
OBSTRUCTION OF JUSTICE - 8. Obstructing justice.
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A person who willfully attempts to obstruct, pervert or defeat the cause of justice under this Act commits an offence.

Section 8. Obstructing justice. Section 8(1) A person who willfully attempts in any way to obstruct, pervert or defeat the cause of justice under this Act commits an offence. Section 8(2)(a) uses physical force or threats; Section 8(2)(b) intimidates or attempts to intimidate; or Section 8(2)(c) dissuades or attempts to dissuade a person from giving evidence: Section 8(2)(d) induces false evidence; Section 8(2)(e) interferes with the giving of evidence; Section 8(2)(f) interferes with the production of evidence for the purpose of interfering with the judicial process; or Section 8(2)(g) promises or offers a benefit ("money, valuable consideration, office or employment;") ,
9
OBSTRUCTION OF JUSTICE - 9. Retaliation against witnesses.
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A person must not, by act or omission, do anything against another person or a member of that person's family in retaliation for giving evidence under this Act; doing so is an offence.

Section 9. Retaliation against witnesses. Section A person who, by act or omission, does anything against a person or a member of the family of the person in retaliation for the person having given evidence under this Act commits an offence.

Part IV

TRACING, CONFISCATION, SEIZURE AND FORFEITURE OF PROPERTY

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TRACING, CONFISCATION, SEIZURE AND FORFEITURE OF PROPERTY - 15. Property tracing.
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Section 15 requires persons to deliver documents or records relevant to identifying, locating or quantifying property and requires banks and similar institutions to produce transaction information; the High Court may, on sworn information by the Attorney-General, authorise entry to premises and removal of documents where a person obstructs or fails to comply.

Section 15. Property tracing. Section 15(1)(a) compelling the person to deliver up any document or record relevant to identifying, locating or quantifying 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 document or instruments evidencing title to or interest in such property;") belonging to him or to the organised criminal group , or in his possession or control; Section 15(1)(b) requiring a bank or any other financial institution, trustee, cash dealer or custodian to produce all information and deliver up all documents and records regarding any business transaction conducted by or on behalf of the person concerned. Section 15(2) Where any person fails to comply with, is delaying or is otherwise obstructing an order made under this section, the High Court may, upon information sworn to that effect by the Attorney-General, authorise the Attorney-General or any officer deputed by him to enter any premises, including a bank or other financial institution, and search the premises and remove any documents or records for the purposes of executing the order. Section 15(3) An order under this section shall lapse upon the expiry of thirty days from the date of the order unless the High Court, after hearing the parties, otherwise directs.
16
TRACING, CONFISCATION, SEIZURE AND FORFEITURE OF PROPERTY - 16. Restraint orders.
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A prohibition prevents any person from making money or other property available to or for the benefit of an organised criminal group or suspect.

Section 16. Restraint orders. Section 16(1)(a) a person charged or about to be charged with an offence under this Act; or Section 16(1)(b) any other specified person. Section 16(2)(a) an organised criminal group ; Section 16(2)(b) a specified person reasonably suspected of being a member of such organised criminal group ; or Section 16(2)(c) any other specified person. Section 16(3)(a) prohibit any person from making money or 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 document or instruments evidencing title to or interest in such property;") available to or for the benefit ("money, valuable consideration, office or employment;") of the organised criminal group or suspect; Section 16(3)(b) provide for the granting of authority to make money or 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 document or instruments evidencing title to or interest in such property;") available to such persons and on such conditions as may be specified in the order; Section 16(3)(c) require a person to provide such information or produce such documents or records as may be reasonably required for the investigation of an offence under this Act; or Section 16(3)(d) include such other condition as the court may impose. Section 16(4)(a) cause a notice of an order made under this section to be published in the next issue of the Gazette and in two daily newspapers with a national circulation; Section 16(4)(b) banks, financial institution and cash dealers; Section 16(4)(b)(i) banks, financial institution and cash dealers; Section 16(4)(b)(ii) any other interested or affected parties; and Section 16(4)(b)(iii) any other person who he knows or suspects may hold or be vested with 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 document or instruments evidencing title to or interest in such property;") belonging to or held on behalf of the organised criminal group or suspect. Section 16(5) An order under this section shall lapse upon the expiry of thirty days from the date of the order unless the High Court, after hearing the parties, otherwise directs.
17
TRACING, CONFISCATION, SEIZURE AND FORFEITURE OF PROPERTY - 17. Seizure and detention of organized criminal group cash.
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Authorised officers may seize cash suspected to belong to organised criminal groups; they must apply to the High Court for detention within seven days and deposit detained cash in an interest-bearing bank account; the court must be satisfied of reasonable grounds before ordering detention; detention orders last sixty days and the High Court may renew them for up to thirty-day periods; cash may be released if subsection (5) conditions cease to be met or if no proceedings are brought within six months.

Section 17. Seizure and detention of organized criminal group cash. Section 17(1) An authorised officer who has reasonable grounds to suspect that any cash which is being imported into or exported from Kenya, or is being brought to any place in Kenya for the purpose of being exported from Kenya, is the property of an organised criminal group, may seize the cash. Section 17(2) An authorised officer may seize cash under this section even if he reasonably suspects part only of the cash to be the property of an organised criminal group, where it is not reasonably practicable to seize that part only of the cash. Section 17(3) An authorised officer may exercise his powers under subsection (1), whether or not any proceedings have been brought for an offence in connection with the cash concerned. Section 17(4) The authorized officer shall, as soon as is reasonably practicable and in any event not later than seven days after the seizure of cash under this section, make an application to the High Court for a detention order with respect to that cash. Section 17(5) The court shall not make an order for detention of the cash unless it is satisfied that there are reasonable grounds for suspecting that the cash is the property of an organised criminal group. Section 17(6) Subject to subsection (8), any order made under this section shall remain valid for a period of sixty days, and, unless the cash is sooner produced before the court in proceedings against any person for an offence with which the cash is connected, may be renewed for further periods of not more than thirty days at a time, by the High Court, on further application. Section 17(7) Any cash detained under this section shall be deposited by the authorised officer in an interest-bearing account with a reputable bank. Section 17(8)(a) where the conditions under subsection (5) are no longer met; or Section 17(8)(b) if no proceedings have been brought in connection with the cash within six months of the seizure of the cash. Section 17(9)(a) the Commissioner responsible for customs and excise holding office under the Kenya Revenue Authority Act ( Cap. 469 ); Section 17(9)(b) the Inspector-General of the National Police Service; Section 17(9)(c) the Attorney-General; or Section 17(9)(d) any other person upon whom written law vests functions of maintenance of law and order.
18
TRACING, CONFISCATION, SEIZURE AND FORFEITURE OF PROPERTY - 18. Forfeiture ofpropertyoforganised criminal group.
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When a person is convicted of an offence under this Act, the court may order the forfeiture of money or other property received in connection with the offence; persons claiming ownership of property potentially forfeitable are given an opportunity to be heard.

Section 18. Forfeiture ofpropertyoforganised criminal group. Section 18(1)(a) an offence under this Act; or Section 18(1)(b) an offence under any other Act that constitutes an act of an organised criminal group within the meaning of this Act, may make a forfeiture order in accordance with the provisions of this section. Section 18(2)(a) which, at the time of the offence, he had in his possession or under his control; or Section 18(2)(b) which, at that time, he intended should be used for the purposes of the activities of the organised criminal group ; or Section 18(2)(c) which, at that time, he knew would or might be used for the purposes of the activities of the organised criminal group ; or Section 18(2)(d) to which the arrangement in question relates; or Section 18(2)(e) which, at the time of the offence, he knew was 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 document or instruments evidencing title to or interest in such property;") of an organised criminal group or would or might be used for the purposes of the activities of the organised criminal group . Section 18(3) Where a person is convicted of an offence under this Act, the court may order the forfeiture of any money or 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 document or instruments evidencing title to or interest in such property;") which wholly or partly and whether directly or indirectly is received by any person as a payment or other reward in connection with the commission of the offence. Section 18(4)(a) who is not a party to the proceedings; and Section 18(4)(b) who claims to be the owner of or otherwise interested in 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 document or instruments evidencing title to or interest in such property;") which may be forfeited under this section, an opportunity to be heard.
19
TRACING, CONFISCATION, SEIZURE AND FORFEITURE OF PROPERTY - 19. Proceedings.
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All proceedings under this Part shall be civil in nature.

Section 19. Proceedings. Section All proceedings under this Part shall be civil in nature.

Part V

GENERAL PROVISIONS

20
GENERAL PROVISIONS - 20. General penalty.
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A person convicted of an offence under this Act may be fined up to five hundred thousand shillings, imprisoned for up to ten years, or both.

Section 20. General penalty. Section A person who commits an offence under this Act for which no penalty is provided shall, on conviction, be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding ten years, or both.
21
GENERAL PROVISIONS - 21. Mutual Legal Assistance.
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If an investigation under this Act requires mutual legal assistance, the Attorney-General or an official he designates must be notified so they can initiate mutual legal assistance and share information.

Section 21. Mutual Legal Assistance. Section Whenever an investigation is instituted under this Act, and mutual legal assistance is deemed necessary, the Attorney-General or any official designated by him for this purpose shall be notified of such investigation with a view to initiate mutual legal assistance and the sharing of information.
22
GENERAL PROVISIONS - 22. Declaration of an organized criminal group.
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The Cabinet Secretary may, on the advice of the Inspector-General of Police and where there are reasonable grounds to believe a group is engaged in organized criminal activity set out in section 3, declare that group an organized criminal group; any person aggrieved may apply to the High Court for redress within twenty-one days of publication.

Section 22. Declaration of an organized criminal group. Section 22(1) Where the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to internal security;") has reasonable grounds to believe that a specified group is engaged in any organized criminal activity set out in section 3 of this Act, he may, on the advice of the Inspector-General of Police, by notice declare that specified group an organized criminal group for the purposes of this Act. Section 22(2) Any person aggrieved by the decision of the Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to internal security;") under this section may apply to the High Court for redress within twenty-one days from the date of publishing the order.
23
GENERAL PROVISIONS - 23. Regulations.
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The Cabinet Secretary responsible for internal security may make regulations to better carry out the Act.

Section 23. Regulations. Section The Cabinet Secretary ("the Cabinet Secretary for the time being responsible for matters relating to internal security;") may make regulations generally for the better carrying out of the provisions of this Act.

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