Mutual Legal Assistance Act

This Act may be cited as the Mutual Legal Assistance Act.

This section defines terms used in the Act such as "Central Authority", "Competent Authority", "communications", "communications data", "content data", and related surveillance and communications concepts.

This section sets the scope to requests for legal assistance from any requesting state or an international entity to which Kenya is obligated, whether under a legal assistance agreement or not.

Limits application to agreements, arrangements or practices respecting co-operation between Kenya and a requesting state, or an international entity or organization.

Establishes a Central Authority and designates the office of the Attorney-General as the Central Authority.

The Central Authority must perform specified functions to transmit, receive and facilitate legal assistance and evidence-gathering, including certification, practical measures for rapid disposition, negotiation of conditions, transmission of evidentiary material, and a range of investigative and evidence-related actions.

The Competent Authority may postpone executing a request when immediate execution would interfere with an ongoing investigation or prosecution.

A request can be refused if it relates to prosecuting or punishing a person for conduct that would not have been an offence in Kenya.

Requests for legal assistance from Kenya must be made by the Competent Authority; such requests may be initiated by law enforcement, prosecution or judicial authorities, and in urgent cases may be sent by direct transmission to a requested state's competent authority subject to that state's domestic law.

Requests for legal assistance must be made in writing to the Central Authority; the Central Authority must acknowledge and transmit received requests; the Competent Authority must grant assistance subject to the Act and may request more information.

Lists specific information that a legal assistance request must include (e.g., official designation, legal basis, nature of matter, purpose, time limits, proceedings status, court, accused identity, offence and facts, stage and dates, suspected offence if proceedings not instituted, reciprocity assurance, documents, signature/stamp/date, and any other relevant information).

The Central Authority must transmit to a requesting state a certificate or other proof about the service of documents, or if not served, the reasons preventing service.

A request under this Act may seek documents, records or other material relevant to a criminal matter arising in a requesting state; where requested documents are not publicly available, the Competent Authority may provide copies under the same conditions as for Kenyan law enforcement, prosecution or judicial authorities.

A request under this Act may seek assistance to examine witnesses.

A requesting state must apply to the Central Authority at least thirty days before the required witness appearance; the Central Authority may accept shorter notice in urgent cases; the Central Authority shall enquire whether the person agrees, inform the requesting state of the answer, and if willing make arrangements; a person may refuse to appear if Kenyan law permits refusal or does not make them compellable; where refusal is on those grounds the Central Authority shall provide a certificate setting out the relevant statutory provisions; a person served with a summons who fails to comply shall not be liable to penalty or compulsion in Kenya or the requesting state.

Requests under the Act may seek temporary transfer of persons in custody from Kenya for identification, assistance in obtaining evidence, or to appear as witnesses; consent of the person in custody is a prerequisite; requesting states must keep and return transferred persons by specified dates and must not penalise non-consenting persons.

Section 16 does not apply to a person who, when the application is presented, is a Kenyan citizen or a child as defined in the Children Act (Cap. 141).

Requests for mutual legal assistance may seek search and seizure of property in Kenya; such requests must specify the property and, as far as reasonably practicable, include all information available to the requesting state; the Competent Authority must provide any certification required by the requesting state about the search, seizure and custody of seized property, subject to relevant law.

Section 19 allows a request under the Act to seek lending of exhibits admitted in Kenyan criminal proceedings to a requesting state and specifies what such a request must contain (description of exhibit; designated recipient; reasons and tests and test location; destination; return period).

If someone alleges that an exhibit returned from a requesting state was altered or not in the same condition, that person must prove it; otherwise the exhibit is presumed to have been continuously in possession of an authorized person or authority.

The Competent Authority may, on application by the person or their legal representative, issue a request for legal assistance; the Authority must not refuse to execute such a request solely because it originates from the charged person or their representative.

Testimony, identification of a person or thing, or any other form of legal assistance under this Part may be provided by video or audio transmission technology.

Kenya shall assist in proceedings involving the identification, tracing, freezing, seizure and confiscation of proceeds and instruments of crime in relation to requests from a requesting state.

Permits a requesting state to give effect to an order of confiscation issued by its competent court or authority; a "requesting state" may include an international entity to which Kenya is obligated.

Co-operation under this Part may be refused if a requesting state does not provide sufficient and timely evidence, or if the property is of insignificant value.

Confiscated property may be disposed of and returned to a requesting state upon request; Kenya may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to return or disposal, where appropriate and unless parties decide otherwise.

If Kenya receives a request under subsection (1)(a) but immediate transmission of intercepted contents is not possible, Kenya must treat and comply with it as if it were a request under subsection (1)(b).

Nothing in this Part shall preclude a requesting state from making a request for legal assistance in accordance with Kenyan law for the provision of stored communications.

A requesting state may ask Kenya, for the purpose of a criminal investigation and under applicable law, to intercept an item while it is being carried by a public postal service and to transmit that item or a copy to the requesting state.

Nothing in this Part prevents bilateral or multilateral arrangements to facilitate exploiting present and future technical possibilities for lawful interception of telecommunications.

Section 31 allows a requesting state to ask Kenya to preserve stored communications data; it sets a 120-day preservation period pending a legal assistance request, requires the Competent Authority to inform the requesting state if preservation would harm availability or confidentiality, and permits the Central Authority to refuse preservation requests when compliance would conflict with Kenyan law or essential public interests.

A requesting state may make a request to Kenya for deployment of covert electronic surveillance.

A foreign record sent to the Central Authority in accordance with a Kenyan request is not inadmissible in evidence solely because a statement in it is hearsay or a statement of opinion.

Evidence (a thing and related affidavits/certificates/statements) supplied by a requesting state is not inadmissible solely because it contains hearsay or opinion when offered in a proceeding where the court has jurisdiction, provided it concerns identity and possession and was sent to the Central Authority in accordance with a Kenyan request.

A party intending to use an affidavit, certificate or other statement as evidence must give seven working days' notice with a copy; if it is a physical thing, the producing party must make it available for inspection for five days after a request.

The service of a document in a requesting state may be proved by affidavit of the person who served it.

The Cabinet Secretary responsible for immigration may authorize a person in a requesting state who is not eligible to be in Kenya to enter and remain at a designated place in Kenya for a specified period.

Section 38 sets out immunities concerning being detained, prosecuted, punished, subjected to civil suit, or required to give evidence in Kenya for acts alleged to have occurred before departure from a requesting state.

Foreign records sent to the Central Authority in response to a Kenyan request are privileged; no person may disclose them except as allowed, and a person holding such a record is not required to give evidence or produce it in legal proceedings.

Kenya must adopt measures to allow it to provide broader legal assistance to a requesting state even in the absence of dual criminality and reciprocity.

A requesting state must not disclose or use information or evidence received under a legal assistance request for matters other than the specific criminal matter in the request without Kenya's prior consent.

Confidentiality of a request, its contents, and the information and materials supplied under the Act must be maintained, except for disclosure in the criminal matter specified in the request or when otherwise authorized by the other state.

Legal assistance must not be refused solely because the offence is fiscal in nature or because of bank or other financial institution or Designated Non-Financial Business or Profession secrecy or confidentiality rules.

Documents supporting a request for legal assistance under this Act must be in English.

Ordinary costs of executing a request are to be borne by Kenya unless otherwise agreed; for substantial or extraordinary expenses, the parties must consult in advance to agree terms and how costs are borne.

The law of Kenya governs the procedure for complying with a request and the admissibility of evidence to be gathered under this Act.

Section 47 allows postponing transmission of material if it is required for proceedings in that state and providing certified copies pending transmission; it also allows requiring a requesting state to agree to terms protecting third-party interests and refusing transmission pending agreement. Where material is transmitted, it must be returned to Kenya when no longer required in the specified criminal matter unless return is indicated as not desired.

Disclosure of information might assist a requesting state (which may include an international entity to which Kenya is obligated) to initiate or carry out investigations, prosecutions or judicial proceedings.

When criminal proceedings are contemplated or pending in Kenya and in a requesting state against the same person for the same conduct, the states shall consider which venue is appropriate to hold the proceedings in the interests of the proper administration of justice.

The Act requires that the principles of mutuality and reciprocity be recognized at all times.

Nothing in this Act authorizes the extradition, or the arrest or detention with a view to extradition, of any person.

The Attorney-General may make regulations to prescribe matters necessary or convenient to carry out or give effect to the Act.