Kenya Act or statute

Parliament of Kenya

Mutual Legal Assistance Act

Jurisdiction: Kenya
Structure: 52 provisions
Citation: Cap. 75A
Dates: As at 15 Sept 2023

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Dates: As at 15 Sept 2023

Source attribution: Source: Kenya Law

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“This Act may be cited as the 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.

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PRELIMINARY - 1. Short title

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

Section 1

REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 14. Examination of witnesses

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

Section 14

INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 27. Interception of telecommunications

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).

Section 27

ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 39. Privilege for foreign records

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.

Section 39

GENERAL PROVISIONS - 52. Regulations

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

Section 52

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Showing 52 of 52 provisions

Provision 40Offence 9Interpretation 2Short title

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

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

Section 1. Short title Section This Act may be cited as the Mutual Legal Assistance Act.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

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.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Central Authority" means an authority established under section 5 of this Act; "Competent Authority" means the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the Gazette ; "communications" includes telecommunications and the transmission of an item through the public postal service ("any postal service which is offered or provided to the public, or to a substantial section of the public;") ; "communications data" includes— (a) traffic data ; (b) subscriber information ("any information that is held by a provider of a postal service or telecommunications service relating to subscribers to its services and by which a subscriber’s identity, affairs or personal particulars can be established, but does not include traffic data") ; (c) any information not falling within paragraph (a) or (b) that is held or obtained by the provider of a postal service or a telecommunications service ("a service provided to any person for transmitting and receiving telecommunications, being a service, the use of which enables communications to be transmitted or received over a telecommunications system operated by a service provider") and which relates to the provision of that service but does not include content data ("the subject or purpose of the communication, or the message or information being conveyed by the communication, whether or not any interpretation, process, mechanism or device needs to be applied or used to make the meaning of the communication intelligible;") ; "confiscation proceedings" means proceedings, whether civil or criminal, for an order to— (a) confiscate any property derived or obtained whether directly or indirectly from an offence ("criminal conduct under the laws of Kenya;") or used in, or in connection with, the commission of an offence ("criminal conduct under the laws of Kenya;") ; or (b) impose a pecuniary penalty calculated by reference to the value of any property derived or obtained whether directly or indirectly from an offence ("criminal conduct under the laws of Kenya;") or used in, or in connection with, the commission of an offence ("criminal conduct under the laws of Kenya;") ; "content data" means the subject or purpose of the communication, or the message or information being conveyed by the communication, whether or not any interpretation, process, mechanism or device needs to be applied or used to make the meaning of the communication intelligible; "covert surveillance" means surveillance carried out in a manner that is calculated to ensure that the persons who are subject to the surveillance are unaware that it is or may be taking place; "covert electronic surveillance" means covert surveillance ("surveillance carried out in a manner that is calculated to ensure that the persons who are subject to the surveillance are unaware that it is or may be taking place;") carried out by or with an electronic surveillance device which transmits records or otherwise captures audio product or visual images, but does not include either surveillance by a tracking device which only provides the location or position, or the interception of telecommunications; "criminal matter" means an investigation, prosecution or judicial proceedings relating to a criminal offence ("criminal conduct under the laws of Kenya;") and includes an investigation, prosecution or proceedings relating to— (a) the forfeiture or confiscation of proceeds of crime ("any property, benefit or advantage that is wholly or partly obtained, derived or realised directly or indirectly as a result of the commission of a criminal act or omission;") ; (b) the imposition or recovery of a pecuniary penalty in respect of a prescribed offence ("criminal conduct under the laws of Kenya;") ; (c) the tracing, freezing ("to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court;") and restraint of property that may be forfeited or confiscated. “designated non-financial business or profession” has the meaning assigned to it under section 2 of Proceeds of Crime and Anti-Money Laundering Ac ( Cap. 59A ); "dual criminality" means conduct which would constitute an offence ("criminal conduct under the laws of Kenya;") under the laws of Kenya and requesting a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") ; "freezing" means to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court; "instrumentality of crime" means any property— (a) used in, or in connection with, the commission of an offence ("criminal conduct under the laws of Kenya;") or unlawful activity; or (b) intended to be used in, or in connection with, the commission of an offence ("criminal conduct under the laws of Kenya;") or unlawful activity. "interception of communications" means the disrupting, destroying, opening, interrupting, suppressing, stopping, seizing, recording, copying, listening to and viewing of communications ("telecommunications and the transmission of an item through the public postal service;") in the course of its transmission so as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication; "international entity" includes any court or tribunal set up by an international instrument and includes any investigatory, prosecutorial or adjudicatory organ of such court or tribunal; "offence" means criminal conduct under the laws of Kenya; "postal item" means any letter, parcel, package, or other thing which is being or will be carried by a public postal service ("any postal service which is offered or provided to the public, or to a substantial section of the public;") ; "postal service" means any service which— (a) consists in the collection, sorting, conveyance, distribution and delivery of postal items; and (b) is offered or provided as a service the main purpose of which, or one of the main purposes of which, is to make available, or to facilitate, a means of transmission from place to place of postal items containing communications ("telecommunications and the transmission of an item through the public postal service;") . "preservation of communications data" means the protection of communications data which already exists in a stored form from modification or deletion, or from anything that would cause its current quality or condition to change or deteriorate: Provided that communications data that is stored on a highly transitory basis and already exists in a stored form as an integral function of the technology used in its transmission shall not be communications data for the purposes of this definition; "proceeds of crime" includes any property, benefit or advantage that is wholly or partly obtained, derived or realised directly or indirectly as a result of the commission of a criminal act or omission; "public postal service" means any postal service which is offered or provided to the public, or to a substantial section of the public; "requesting state" means a state requesting for legal assistance and may for the purposes of this Act include an international entity ("any court or tribunal set up by an international instrument and includes any investigatory, prosecutorial or adjudicatory organ of such court or tribunal;") to which Kenya is obligated; "requested state" means a state being requested to provide legal assistance under the terms of this Act; "seizure" means freezing ("to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court;") coupled with the administration, control, possession, or management of the funds or other assets; "telecommunication" means a communication transmitted or received by means of guided or unguided electromagnetic or other forms of energy; "telecommunications service" means a service provided to any person for transmitting and receiving telecommunications, being a service, the use of which enables communications ("telecommunications and the transmission of an item through the public postal service;") to be transmitted or received over a telecommunications system ("any system, including the apparatus comprised in it, which exists, whether wholly or partly in Kenyan territory or in a requesting state, for the purpose of transmitting and receiving telecommunications;") operated by a service provider. "telecommunications system" means any system, including the apparatus comprised in it, which exists, whether wholly or partly in Kenyan territory or in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") , for the purpose of transmitting and receiving telecommunications; "traffic data" means computer data— (a) that relates to a communication by means of a computer system; and (b) is generated by a computer system that is part of the chain of communication; and (c) shows the communication’s origin, destination, route, time, date, size, duration or the type of underlying services. "stored communication" means the content data ("the subject or purpose of the communication, or the message or information being conveyed by the communication, whether or not any interpretation, process, mechanism or device needs to be applied or used to make the meaning of the communication intelligible;") that is no longer in the course of transmission and which has been stored in a form allowing retrieval; "subscriber information" means any information that is held by a provider of a postal service or telecommunications service ("a service provided to any person for transmitting and receiving telecommunications, being a service, the use of which enables communications to be transmitted or received over a telecommunications system operated by a service provider") relating to subscribers to its services and by which a subscriber’s identity, affairs or personal particulars can be established, but does not include traffic data . "surveillance" includes— (a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications ("telecommunications and the transmission of an item through the public postal service;") ; (b) recording anything monitored, observed or listened to in the course of surveillance; and (c) surveillance by or with the assistance of a surveillance device. [Act No. 10 of 2023 , Sch.]

Section 2Verify source

§ 3PRELIMINARY - 3. Scope of applicationProvision

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.

Section 3. Scope of application Section apply to requests for legal assistance from any requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") or international entity ("any court or tribunal set up by an international instrument and includes any investigatory, prosecutorial or adjudicatory organ of such court or tribunal;") to which Kenya is obligated on the basis of a legal assistance agreement or not; and

Section 3Verify source

§ 4PRELIMINARY - 4. Limitations with respect to scope of applicationProvision

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

Section 4. Limitations with respect to scope of application Section an agreement, arrangement or practice respecting co-operation between Kenya and a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") or international entity ("any court or tribunal set up by an international instrument and includes any investigatory, prosecutorial or adjudicatory organ of such court or tribunal;") or organization;

Section 4Verify source

Part II

ESTABLISHMENT OF CENTRAL AUTHORITY

§ 5ESTABLISHMENT OF CENTRAL AUTHORITY - 5.Central AuthorityProvision

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

Section 5.Central Authority Section 5(1) There is established an authority to be known as the Central Authority ("an authority established underof this Act;") to perform functions specified in this Act. Section 5(2) The office of the Attorney-General shall be designated as the Central Authority ("an authority established underof this Act;") established under subsection (1) of this section.

Section 5Verify source

§ 6ESTABLISHMENT OF CENTRAL AUTHORITY - 6. Functions ofCentral AuthorityProvision

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.

Section 6. Functions ofCentral Authority Section 6(1)(a) transmitting and receiving requests for legal assistance and executing or arranging for the execution of such requests; Section 6(1)(b) ensuring that requests for legal assistance conform to the requirements of law and Kenya’s international obligations; Section 6(1)(c) where necessary, certifying or authenticating, or arranging for the certification and authentication of, any documents or other material supplied in response to a request for legal assistance; Section 6(1)(d) taking practical measures to facilitate the orderly and rapid disposition of requests for legal assistance; Section 6(1)(e) negotiating and agreeing on conditions related to requests for legal assistance, as well as to ensuring compliance with those conditions; Section 6(1)(f) making any arrangements deemed necessary in order to transmit the evidentiary material gathered in response to a request for legal assistance to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") or to authorize any other authority to do so; Section 6(1)(g) carrying out such other tasks as provided for by this Act or which may be necessary for effective legal assistance to be provided or received. Section 6(2)(a) identifying and locating of persons for evidential purposes; Section 6(2)(b) examining witnesses; Section 6(2)(c) effecting service of judicial documents; Section 6(2)(d) executing searches and seizures; Section 6(2)(e) examining objects and sites; Section 6(2)(f) providing, including formal production where necessary, originals or certified copies of relevant documents and records, including but not limited to government, bank, financial, corporate or business records; Section 6(2)(g) providing information, evidentiary items and expert evaluations; Section 6(2)(h) facilitating the voluntary attendance of witnesses or potential witnesses in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") ; Section 6(2)(i) facilitating the taking of evidence through video conference; Section 6(2)(j) effecting a temporary transfer of persons in custody to appear as a witness; Section 6(2)(k) interception of items during the course of carriage by a public postal service ("any postal service which is offered or provided to the public, or to a substantial section of the public;") ; Section 6(2)(l) identifying, freezing ("to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court;") and tracing proceeds of crime ("any property, benefit or advantage that is wholly or partly obtained, derived or realised directly or indirectly as a result of the commission of a criminal act or omission;") ; Section 6(2)(m) the recovery and disposal of assets; Section 6(2)(n) preserving communications data ; Section 6(2)(o) interception of telecommunications; Section 6(2)(p) conducting covert electronic surveillance ("covert surveillance carried out by or with an electronic surveillance device which transmits records or otherwise captures audio product or visual images, but does not include either surveillance by a tracking device which only provides the location or position, or the interception of telecommunications;") ; Section 6(2)(q) any other type of legal assistance or evidence gathering that is not contrary to Kenyan law.

Section 6Verify source

Part III

MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS

§ 10MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS - 10. Postponement of the execution of requestProvision

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

Section 10. Postponement of the execution of request Section The Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") may postpone the execution of the request if its immediate execution would interfere with an ongoing investigation or prosecution.

Section 10Verify source

§ 11MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS - 11. Grounds for refusalOffence

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.

Section 11. Grounds for refusal Section the request relates to the prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Kenya would not have constituted an offence ("criminal conduct under the laws of Kenya;") under Kenyan law;

Section 11Verify source

§ 7MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS - 7. Request from KenyaProvision

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.

Section 7. Request from Kenya Section 7(1) A request for legal assistance from Kenya shall be made by the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") . Section 7(2) A request made under subsection (1) may be initiated by any law enforcement agency, or prosecution or judicial authority competent under Kenyan law. Section 7(3) In the event of urgency or as permitted by any other written law, requests may be sent by direct transmission from a Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") to a competent authority of a requested state ("a state being requested to provide legal assistance under the terms of this Act;") for execution subject to domestic law of the requested state ("a state being requested to provide legal assistance under the terms of this Act;") . Section 7(4) Where further information is required before a request under this section is executed, in so far as practicable, such information shall be provided for and within any deadlines as may be set by a requested state ("a state being requested to provide legal assistance under the terms of this Act;") .

Section 7Verify source

§ 8MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS - 8. Incoming requests for legal assistanceProvision

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.

Section 8. Incoming requests for legal assistance Section 8(1) A request from a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") shall be made in writing to the Central Authority ("an authority established underof this Act;") . Section 8(2) Upon receipt of the request under subsection (1), the Central Authority ("an authority established underof this Act;") shall as soon as is reasonably practicable acknowledge receipt of such request and forthwith transmit the same to the relevant competent authority. Section 8(3) For the purpose of subsection (1), "in writing" includes e-mail, facsimile or other agreed forms of electronic transmission provided that appropriate levels of security and authentication are put in place. Section 8(4) Subject to the provisions of this Act, the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") shall grant the legal assistance requested in subsection (1) as expeditiously as practicable. Section 8(5) The Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") may seek additional information from a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") if it considers necessary. Section 8(6)(a) the request does not comply with the provisions of this Act; or Section 8(6)(b) in accordance with the provisions of this Act, the request for legal assistance is to be refused in whole or in part; or Section 8(6)(c) the request cannot be complied with, in whole or in part; or Section 8(6)(d) there are circumstances which are likely to cause a significant delay in complying with the request,

Section 8Verify source

§ 9MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS - 9. Content of request for legal assistanceOffence

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).

Section 9. Content of request for legal assistance Section 9(1)(a) have the official designation of the requesting authority; Section 9(1)(b) have the legal basis of the request; Section 9(1)(c) specify the nature of the criminal matter , the assistance requested and details of any particular procedure to be followed in compliance with the request; Section 9(1)(d) indicate the purpose for which the evidence, information or any other material is sought; Section 9(1)(e) indicate any time limit within which compliance with the request is desired, stating reasons; Section 9(1)(f) whether or not criminal proceedings have been instituted; Section 9(1)(g) the court exercising jurisdiction in the proceedings; Section 9(1)(g)(i) the court exercising jurisdiction in the proceedings; Section 9(1)(g)(ii) the identity of the accused person; Section 9(1)(g)(iii) the offence ("criminal conduct under the laws of Kenya;") for which he stands accused, and a summary of the facts; Section 9(1)(g)(iv) the stage reached in the proceedings; and Section 9(1)(g)(v) any date fixed for further stages in the proceedings; Section 9(1)(h) where criminal proceedings have not been instituted, state the offence ("criminal conduct under the laws of Kenya;") which the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") has reasonable grounds to suspect has been, is being or will be committed with a summary of known facts; Section 9(1)(i) provide assurance of reciprocity; Section 9(1)(j) contain relevant documents and exhibits; Section 9(1)(k) have the signature and official stamp of the requesting authority and the date of the request; Section 9(1)(l) contain any other information relevant for the proper execution of the request. Section 9(2) A request for legal assistance and the documents in support thereof, as well as documents or other material supplied in response to such a request, may not require certification or authentication.

Section 9Verify source

Part IV

REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE

§ 12REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 12. Service of documentsProvision

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.

Section 12. Service of documents Section 12(1) A request under this Act may seek assistance in the service of documents relevant to a criminal matter . Section 12(2) The request made under subsection (1) shall be accompanied by the necessary documents to be served. Section 12(3)(a) any particular method stated in the request, unless such method is contrary to Kenyan law; or Section 12(3)(b) any method prescribed by Kenyan law for the service of documents in criminal proceedings. Section 12(4) The Central Authority ("an authority established underof this Act;") shall transmit to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") a certificate or other proof as to the service of the documents or, if they have not been served, as to the reasons which have prevented service. Section 12(5)(a) the address of the person for whom the document is intended is unknown or uncertain; or Section 12(5)(b) the relevant law of a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") requires proof of service; or Section 12(5)(c) it has not been possible to serve the document by post; or Section 12(5)(d) there are reasons to believe that the dispatch by post will be ineffective or is inappropriate.

Section 12Verify source

§ 13REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 13. Provision or production of RecordsProvision

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.

Section 13. Provision or production of Records Section 13(1) A request under this Act may seek the provision or production of any documents, records or other material relevant to a criminal matter arising in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 13(2) Where documents or records requested under subsection (1) are not publicly available, the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") may provide copies of such documents, records or other material to the same extent and under the same conditions as applies to provision of such records to Kenya law enforcement agencies or prosecution or judicial authorities.

Section 13Verify source

§ 14REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 14. Examination of witnessesProvision

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

Section 14. Examination of witnesses Section 14(1) A request under this Act may seek assistance in the examination of witnesses. Section 14(2)(a) the names and addresses or the official designations of the witnesses to be examined; Section 14(2)(b) the questions to be put to the witnesses or the subject matter about which they are to be examined; Section 14(2)(c) whether it is desired that the witnesses be examined orally or in writing; Section 14(2)(d) whether it is desired that an oath be administered to the witnesses or, as Kenyan law allows, that they be required to make their solemn affirmation; Section 14(2)(e) any provisions of the law of the requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") as to privilege or exemption from giving evidence which appear especially relevant to the request; Section 14(2)(f) any special requirements as to the manner of taking evidence relevant to its admissibility in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") ; and Section 14(2)(g) any other relevant information. Section 14(3) The request may seek permission for, so far as Kenyan law permits, the accused person or his legal representative to attend the examination of the witness and ask questions of the witness.

Section 14Verify source

§ 15REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 15. Attendance of witness inrequesting stateOffence

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.

Section 15. Attendance of witness inrequesting state Section 15(1) A request under this Act may seek legal assistance in facilitating personal appearance as a witness before a court exercising jurisdiction in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 15(2) In making a request under subsection (1), a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") shall apply to the Central Authority ("an authority established underof this Act;") at least thirty days prior to the date of appearance. Section 15(3) In the event of urgency, the Central Authority ("an authority established underof this Act;") may accept a shorter period of notice. Section 15(4)(a) the subject matter upon which it is desired to examine the witness; Section 15(4)(b) the date on which the appearance of the witness is required; Section 15(4)(c) the reasons why personal appearance of the witness is required; and Section 15(4)(d) details of the travelling, subsistence and other expenses payable by a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") in respect of personal appearance of the witness. Section 15(5)(a) enquire whether the person agrees to appear; Section 15(5)(b) inform a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") of the answer; and Section 15(5)(c) if the person is willing to appear, make appropriate arrangements to facilitate personal appearance of the witness. Section 15(6) A person whose appearance as a witness is the subject of a request may refuse to appear as a witness where Kenyan law, either permits such a refusal or does not make him a compellable witness. Section 15(7) Where a refusal is based on the grounds contained in subsection (6), the Central Authority ("an authority established underof this Act;") shall provide a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") with a certificate setting out the relevant statutory provisions which permits such a refusal or does not make the witness a compellable witness under Kenyan law. Section 15(8) A person served with summons to appear as a witness in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") and who fails to comply with the summons shall not by reason thereof be liable to any penalty or measure of compulsion in either Kenya or the requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") notwithstanding any contrary statement in the summons.

Section 15Verify source

§ 16REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 16. Voluntary attendance of persons in custodyOffence

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. Voluntary attendance of persons in custody Section 16(1) Subject to section 17 , a request under this Act may seek the temporary transfer of a person in custody in Kenya for purposes of identification, providing assistance in obtaining evidence for investigations or prosecutions or to appear as a witness before a court exercising jurisdiction in a requesting state. Section 16(2)(a) state the name of the person in custody; Section 16(2)(b) if possible, state the place of confinement of the person in custody; Section 16(2)(c) state the place to which the person in custody is sought to be transferred; Section 16(2)(d) specify the subject matter on which it is desired to examine the witness; Section 16(2)(e) state the reasons for which personal appearance of the witness is required; and Section 16(2)(f) specify the period of time at or before the expiration of which the person in custody is to be returned. Section 16(3) A statement of consent from the person in custody whose copy shall be made available to the Central Authority ("an authority established underof this Act;") shall be a prerequisite for the transfer. Section 16(4) A person in custody whose transfer is the subject of a request and who does not consent to the transfer shall not by reason thereof be liable to any penalty or measure of compulsion in either Kenya or a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 16(5)(a) the date upon which the person is due under the law of Kenya to be released from custody; Section 16(5)(b) the date by which the Central Authority ("an authority established underof this Act;") requires the return of the person; Section 16(5)(c) any variations in such dates in (a) and (b). Section 16(6) A requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") shall keep the person transferred in custody, and shall return the person to Kenya when the presence of such person as a witness in the requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") is no longer required, and in any case by the earlier of the dates notified under subsection (5) of this section. Section 16(7) The obligation to return the person transferred shall subsist notwithstanding the fact that the person is a national of a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 16(8) A requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") to which the person is transferred shall not require Kenya to initiate extradition proceedings for the return of the person. Section 16(9) Where a person in custody who is serving a term of imprisonment in Kenya is transferred to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") under a request made in this section, the time spent in custody shall count as part of any sentence required to be served by that person in custody for the purposes of the Prisons Act ( Cap. 90 ). Section 16(10) Nothing in this section shall preclude the release in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") without return to Kenya of any person transferred where the two States and the person concerned have agreed to such release.

Section 16Verify source

§ 17REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 17. Exception for Kenyan citizens or young personsProvision

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).

Section 17. Exception for Kenyan citizens or young persons Section Section 16 shall not apply in respect of a person who, at the time the application is presented, is a Kenyan citizen or a child within the meaning of the Children Act ( Cap. 141 ).

Section 17Verify source

§ 18REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 18. Search andseizureProvision

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 18. Search andseizure Section 18(1) A request under this Act may seek assistance in the search and seizure ("freezing coupled with the administration, control, possession, or management of the funds or other assets;") of property in Kenya. Section 18(2) The request made under subsection (1) shall specify the property to be searched and seized and shall contain, so far as is reasonably practicable, all information available to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") which may be required to be adduced in an application under Kenyan law for any necessary warrant or authorization to effect the search and seizure ("freezing coupled with the administration, control, possession, or management of the funds or other assets;") . Section 18(3) Subject to the relevant law, the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") shall provide such certification as may be required by a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") concerning the result of any search, the place and circumstances of seizure ("freezing coupled with the administration, control, possession, or management of the funds or other assets;") , and the subsequent custody of the property seized.

Section 18Verify source

§ 19REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 19. Lending of exhibitsOffence

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).

Section 19. Lending of exhibits Section 19(1) A request under this Act may seek to have an exhibit that was admitted in evidence in a proceeding in respect of an offence ("criminal conduct under the laws of Kenya;") in a court in Kenya lent to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 19(2)(a) contain a description of the exhibit requested to be lent; Section 19(2)(b) designate a person or class of persons to whom the exhibit is sought to be given; Section 19(2)(c) state the reasons for the request, as well as contain a description of any tests that are sought to be performed on the exhibit and a statement of the place where the tests will be performed; Section 19(2)(d) state the place to which the exhibit is sought to be removed; and Section 19(2)(e) specify a period of time at or before the expiration of which the exhibit is to be returned. Section 19(3)(a) description of the exhibit; Section 19(3)(b) description of any tests thereby authorized to be performed on the exhibit, as well as a statement of the place where the tests will be performed; and Section 19(3)(c) the period of time of which the exhibit shall be returned.

Section 19Verify source

§ 20REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 20. Presumption of continuityProvision

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.

Section 20. Presumption of continuity Section The burden of proving that an exhibit, lent to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") pursuant to a request under section 19 and returned to Kenya, is not in the same condition as it was when the lending was made or that it was tampered with after the lending was made shall be on the party who makes that allegation and in the absence of that proof, the exhibit shall be deemed to have been continuously in the possession of an authorized person or authority.

Section 20Verify source

§ 21REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 21. Defence requestProvision

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.

Section 21. Defence request Section 21(1) Where criminal proceedings have been instituted in Kenya against a person, or where a person is joined in such proceedings as a third party, the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") may, on application to the court by either the said person or his legal representative, issue a request for legal assistance to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 21(2) The fact that a request under subsection (1) originates from a person charged or his legal representative shall not be a ground for refusal by the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") to execute the request.

Section 21Verify source

§ 22REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE - 22. Use of video conferencing technologyProvision

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.

Section 22. Use of video conferencing technology Section A testimony, identification of a person or thing or any other form of legal assistance under this Part may be provided by use of video or audio transmission technology.

Section 22Verify source

Part V

RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS

§ 23RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS - 23. Identification, tracing etc.Offence

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.

Section 23. Identification, tracing etc. Section 23(1) Kenya shall assist in proceedings involving the identification, tracing, freezing ("to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court;") , seizure ("freezing coupled with the administration, control, possession, or management of the funds or other assets;") and confiscation of the proceeds and instruments of crime under its laws or any other arrangement to which Kenya may be bound in relation to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 23(2)(a) details of the property in relation to which co-operation is sought; Section 23(2)(b) the connection, if any, between the property and the offences in respect of which the request is made; Section 23(2)(c) where known, details of any third party interests in the property; and Section 23(2)(d) a certified copy of the freezing ("to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court;") or seizing decision or final decision of confiscation made by a court. Section 23(3) Nothing in this section shall prejudice the rights of bona fide third parties.

Section 23Verify source

§ 24RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS - 24. Measures for asset recovery through international co-operationProvision

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.

Section 24. Measures for asset recovery through international co-operation Section permit a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") to give effect to an order of confiscation issued by its competent court or authority;

Section 24Verify source

§ 25RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS - 25. Refusal of co-operationProvision

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.

Section 25. Refusal of co-operation Section In addition to the grounds of refusal set out in this Act, co-operation under this Part may be refused if a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") does not provide sufficient and timely evidence or if the property is of an insignificant value.

Section 25Verify source

§ 26RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS - 26. Return and disposal of assetsProvision

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.

Section 26. Return and disposal of assets Section 26(1) Subject to the rights of third parties and in accordance with this Act or any other written law or any other arrangements to which Kenya is bound, property confiscated under the provisions of this Act shall be disposed of, including return to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") , upon request. Section 26(2)(a) reasonably establish prior ownership of such property by a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") ; or Section 26(2)(b) consider damage likely to be caused to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") if the property is not returned; or Section 26(2)(c) consider the need for compensation to the victims of the crime in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 26(3) Where appropriate, unless parties decide otherwise, Kenya may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property under this section.

Section 26Verify source

Part VI

INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE

§ 27INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 27. Interception of telecommunicationsProvision

Section 27. Interception of telecommunications Section 27(1)(a) the interception and immediate transmission of telecommunications; or Section 27(1)(b) the interception, recording and subsequent transmission of telecommunications. Section 27(2)(a) Kenya and a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") needs the technical assistance of Kenya to intercept such communications ("telecommunications and the transmission of an item through the public postal service;") ; or Section 27(2)(b) Kenya and a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") communications ("telecommunications and the transmission of an item through the public postal service;") are capable of being intercepted; or Section 27(2)(c) a third state, which has been informed accordingly and a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") need the technical assistance of Kenya to intercept such communications ("telecommunications and the transmission of an item through the public postal service;") . Section 27(3)(a) an indication of the authority making the request; Section 27(3)(b) confirmation that a lawful interception order or warrant has been issued in connection with a criminal investigation, if such an order or warrant is required by law; Section 27(3)(c) information for the purpose of identifying the subject of the requested interception; Section 27(3)(d) details of the criminal conduct under investigation; Section 27(3)(e) the desired duration of the interception; and Section 27(3)(f) if possible, the provision of sufficient technical data, in particular the relevant network connection number, communications ("telecommunications and the transmission of an item through the public postal service;") address or service identifier to ensure that the request can be met. Section 27(4) Where a request has been made under subsection (1)(a) and the immediate transmission of the contents of an intercepted communication is not possible, Kenya shall undertake to comply with the request as though it were made under subsection (1)(b). Section 27(5) The information provided under this section shall be confidential and shall be kept in accordance with the provisions of this Act or any other relevant written law.

Section 27Verify source

§ 28INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 28. StoredcommunicationsProvision

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.

Section 28. Storedcommunications Section Nothing in this Part shall preclude a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") from making a request for legal assistance in accordance with Kenyan law for the provision of stored communications ("telecommunications and the transmission of an item through the public postal service;") .

Section 28Verify source

§ 29INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 29. Interception of items during the course of carriage by apublic postal serviceProvision

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.

Section 29. Interception of items during the course of carriage by apublic postal service Section For the purpose of a criminal investigation, a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") may, in accordance with the requirements of this Act or any other relevant law, make a request to Kenya for the interception of an item during the course of its carriage by a public postal service ("any postal service which is offered or provided to the public, or to a substantial section of the public;") and immediate transmission of the said item or a copy thereof.

Section 29Verify source

§ 30INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 30. Bilateral or multilateral arrangementsProvision

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

Section 30. Bilateral or multilateral arrangements Section Nothing in this Part shall preclude any bilateral or multilateral arrangements for the purpose of facilitating the exploitation of present and future technical possibilities regarding the lawful interception of telecommunications.

Section 30Verify source

§ 31INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 31. Preservation ofcommunications dataInterpretation

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.

Section 31. Preservation ofcommunications data Section 31(1) A requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") may request Kenya for the preservation of communications data ("the protection of communications data which already exists in a stored form from modification or deletion, or from anything that would cause its current quality or condition to change or deteriorate:") . Section 31(2) A request made under subsection (1) may be directly transmitted to Kenya and shall be executed in accordance with Kenyan law. Section 31(3)(a) specify the identity of the authority making the request; Section 31(3)(b) contain a brief description of the conduct under investigation; Section 31(3)(c) subscriber information ("any information that is held by a provider of a postal service or telecommunications service relating to subscribers to its services and by which a subscriber’s identity, affairs or personal particulars can be established, but does not include traffic data") ; Section 31(3)(c)(i) subscriber information ("any information that is held by a provider of a postal service or telecommunications service relating to subscribers to its services and by which a subscriber’s identity, affairs or personal particulars can be established, but does not include traffic data") ; Section 31(3)(c)(ii) traffic data ; Section 31(3)(c)(iii) any other information falling within the definition of communications data ; Section 31(3)(d) contain a statement that a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") intends to submit a request for legal assistance to obtain the communications data within the period permitted under this section. Section 31(4) The preservation of communications data ("the protection of communications data which already exists in a stored form from modification or deletion, or from anything that would cause its current quality or condition to change or deteriorate:") pursuant to a request made under this section shall be for a period of one hundred and twenty days, pending submission by a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") of a request for legal assistance to obtain the preserved communications data however, following the receipt of such a request, the data shall continue to be preserved pending the determination of that request and, if the request is granted, until the data is obtained pursuant to the request for legal assistance. Section 31(5) If the Competent Authority ("the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the;") considers that the preservation of communications data ("the protection of communications data which already exists in a stored form from modification or deletion, or from anything that would cause its current quality or condition to change or deteriorate:") pursuant to a request made under this section will not ensure the future availability of the communications data , or will threaten the confidentiality of, or otherwise prejudice the investigation in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") , it shall promptly inform a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") , which shall then determine whether the request should nevertheless be executed. Section 31(6) Notwithstanding the grounds for refusal under this Act, a request for the preservation of communications data ("the protection of communications data which already exists in a stored form from modification or deletion, or from anything that would cause its current quality or condition to change or deteriorate:") under this section may be refused only to the extent that it appears to the Central Authority ("an authority established underof this Act;") that compliance would be contrary to the laws or Constitution of Kenya, or would prejudice the security, international relations, or other essential public interests of Kenya.

Section 31Verify source

§ 32INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE - 32. Covert electronicsurveillanceProvision

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

Section 32. Covert electronicsurveillance Section 32(1) A request may be made to Kenya from a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") for deployment of covert electronic surveillance ("covert surveillance carried out by or with an electronic surveillance device which transmits records or otherwise captures audio product or visual images, but does not include either surveillance by a tracking device which only provides the location or position, or the interception of telecommunications;") . Section 32(2) Covert electronic surveillance shall take place in accordance with the procedures provided for under Kenyan law. Section 32(3) Nothing in this section shall preclude a request for assistance involving surveillance , including the use of a tracking device, other than that provided for in this section.

Section 32Verify source

Part VII

ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD

§ 33ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 33. Foreign recordsProvision

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.

Section 33. Foreign records Section 33(1) A record or a copy and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record sent to the Central Authority ("an authority established underof this Act;") by a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") in accordance with a Kenyan request, shall not be inadmissible in evidence in a proceeding with respect to which the court has jurisdiction by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion. Section 33(2) For the purpose of determining the probative value of a record or copy admitted in evidence under this Act the court may examine the record or copy, receive evidence orally or by affidavit, including evidence as to the circumstances in which the information contained in the record or copy was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.

Section 33Verify source

§ 34ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 34. Foreign thingsProvision

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.

Section 34. Foreign things Section A thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") as to the identity and possession of the thing from the time it was obtained until its sending to the Central Authority ("an authority established underof this Act;") by the a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") in accordance with a Kenyan request, are not inadmissible in evidence in a proceeding with respect to which the court has jurisdiction by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.

Section 34Verify source

§ 35ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 35. Status of affidavit, certificate etc.Provision

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.

Section 35. Status of affidavit, certificate etc. Section 35(1) An affidavit, certificate or other statement mentioned in this Act shall be, in the absence of evidence to the contrary, proof of the statements contained without proof of the signature or official character of the person appearing to have signed the affidavit certificate or other statement. Section 35(2)(a) the party intending to produce it has given to the party against whom it is intended to be produced seven working days notice of that intention, accompanied by a copy of the record, copy, of the affidavit, certificate or other statement; Section 35(2)(b) in the case of a thing, the party intending to produce it has made it available for inspection by the party against whom it is intended to be produced for five days following a request by that party that it be made so available.

Section 35Verify source

§ 36ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 36. Proof of service abroadProvision

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

Section 36. Proof of service abroad Section The service of a document in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") may be proved by affidavit of the person who served it.

Section 36Verify source

§ 37ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 37. Special authorization to come to KenyaProvision

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 37. Special authorization to come to Kenya Section 37(1) Notwithstanding the provisions of the Kenya Citizenship and Immigration Act ( Cap. 170 ), the Cabinet Secretary responsible for immigration may, in order to give effect to a request of the Central Authority ("an authority established underof this Act;") , authorize a person in a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") , who is not eligible to be in Kenya, to come into Kenya at a place designated by the Cabinet Secretary responsible for home affairs and to go to and remain in a place in Kenya so designated for the period of time specified by the Cabinet Secretary responsible for home affairs. Section 37(2) The Cabinet Secretary responsible for immigration may subject an authorization under subsection (1) to any terms and conditions he deems necessary, vary the terms of an authorization and, in particular, may extend the period of time during which the person is authorized to remain in a place in Kenya. Section 37(3) A person to whom an authorization is granted under subsection (1) who is found in a place in Kenya other than the place designated in the authorization or in any place in Kenya after the expiration of the period of time specified in the authorization or who fails to comply with some other condition of the authorization shall, for the purpose of the Kenya Citizenship and Immigration Act ( Cap. 170 ) be deemed to be a person who entered Kenya as a visitor and remains therein after he has ceased to be a visitor.

Section 37Verify source

§ 38ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 38. ImmunitiesOffence

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.

Section 38. Immunities Section 38(1)(a) be detained, prosecuted or punished in Kenya for any offence ("criminal conduct under the laws of Kenya;") that is alleged to have been committed, or that was committed, before the person’s departure from a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") pursuant to the request; Section 38(1)(b) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, before the person’s departure from a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") pursuant to the request; or Section 38(1)(c) be required to give evidence in any proceeding in Kenya other than the proceeding to which the request relates, if any. Section 38(2)(a) the person has left Kenya; or Section 38(2)(b) the purpose to which the request relates; Section 38(2)(b)(i) the purpose to which the request relates; Section 38(2)(b)(ii) the purpose of giving evidence in a proceeding in Kenya certified by the Central Authority ("an authority established underof this Act;") , in writing, to be a proceeding in which it is desirable that the person give evidence; or Section 38(2)(b)(iii) the purpose of giving assistance in relation to an investigation in Kenya certified by the Central Authority ("an authority established underof this Act;") , in writing, to be an investigation in relation to which it is desirable that the person give assistance.

Section 38Verify source

§ 39ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD - 39. Privilege for foreign recordsProvision

Section 39. Privilege for foreign records Section 39(1) Subject to section 33 (2), a foreign record sent to the Central Authority by a requesting state in accordance with a Kenyan request shall be privileged and no person shall disclose to anyone the record or its purpose or the contents of the record, in compliance with the conditions on which it was so sent, it being made public or disclosed for the purpose of giving evidence. Section 39(2) A person in possession of a record referred to in subsection (1) shall not be required, in connection with any legal proceedings, to give evidence relating to any information that is contained in the record or to produce the record.

Section 39Verify source

Part VIII

GENERAL PROVISIONS

§ 40GENERAL PROVISIONS - 40. Dual criminality and reciprocityOffence

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.

Section 40. Dual criminality and reciprocity Section Kenya shall adopt such measures as may be necessary to enable it to provide a wider scope of legal assistance to a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") in absence of dual criminality ("conduct which would constitute an offence under the laws of Kenya and requesting a requesting state;") and reciprocity.

Section 40Verify source

§ 41GENERAL PROVISIONS - 41. Rule of specialtyProvision

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.

Section 41. Rule of specialty Section A requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") shall not transmit to another party or use any information or evidence obtained in response to a request for legal assistance under this Act in connection with any matter other than the criminal matter specified in the request without the prior consent of Kenya.

Section 41Verify source

§ 42GENERAL PROVISIONS - 42. ConfidentialityProvision

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.

Section 42. Confidentiality Section The confidentiality of a request and its contents and the information and materials supplied under this Act shall be maintained except for disclosure in the criminal matter specified in the request and where otherwise authorized by the other state.

Section 42Verify source

§ 43GENERAL PROVISIONS - 43. Fiscal offencesOffence

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.

Section 43. Fiscal offences Section Legal assistance shall not be refused solely on the grounds that the offence ("criminal conduct under the laws of Kenya;") amounts to an offence ("criminal conduct under the laws of Kenya;") of a fiscal nature or on the grounds of bank or other financial institution or Designated Non-Financial Business or Profession secrecy or confidentiality rules. [Act No. 10 of 2023 , Sch.]

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§ 44GENERAL PROVISIONS - 44. LanguageProvision

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

Section 44. Language Section The documents in support of a request for legal assistance made under this Act shall be in English language.

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§ 45GENERAL PROVISIONS - 45. CostsProvision

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.

Section 45. Costs Section 45(1) Ordinary costs of executing a request shall be borne by Kenya, unless otherwise determined by the Kenya and a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") . Section 45(2) If expenses of a substantial or extraordinary nature are or shall be required to execute the request, the parties shall consult in advance to determine the terms and conditions under which the request shall be executed as well as the manner in which the costs shall be borne.

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§ 46GENERAL PROVISIONS - 46. Applicable lawProvision

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

Section 46. Applicable law Section The law of Kenya shall govern the procedure for complying with a request and the admissibility of evidence to be gathered under this Act.

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§ 47GENERAL PROVISIONS - 47. Transmission and return of materialProvision

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.

Section 47. Transmission and return of material Section 47(1)(a) postpone the transmission of the material if it is required in connection with proceedings in that state, and in such a case shall provide certified copies of a document or record pending transmission of the original; or Section 47(1)(b) require a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") to agree to terms and conditions to protect third party interests in the material to be transmitted and may refuse to effect such transmission pending such agreement. Section 47(2) Where any document, record or property is transmitted in compliance with a request under this Act, it shall be returned to Kenya when it is no longer required in connection with the criminal matter specified in the request unless indicated that its return is not desired.

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§ 48GENERAL PROVISIONS - 48. Special co-operationProvision

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.

Section 48. Special co-operation Section the disclosure of such information might assist a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") in initiating or carrying out investigations, prosecutions or judicial proceedings; or

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§ 49GENERAL PROVISIONS - 49. Consultation in event of concurrent jurisdictionProvision

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.

Section 49. Consultation in event of concurrent jurisdiction Section 49(1) Where criminal proceedings are contemplated or pending in Kenya and a requesting state ("a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;") against the same person in respect of the same conduct, the states shall consider the appropriate venue for the proceedings to be taken in the interests of the proper administration of justice. Section 49(2)(a) location of the accused; Section 49(2)(b) location, protection and other interests of witnesses and third parties; Section 49(2)(c) interests of any victim and third parties; Section 49(2)(d) location of documents, exhibits and other relevant material; Section 49(2)(e) availability and nature of sanctions in the event of conviction; Section 49(2)(f) capability to address sensitive or confidential information or material; Section 49(2)(g) delay; Section 49(2)(h) evidential problems; Section 49(2)(i) confiscation and proceeds of crime ("any property, benefit or advantage that is wholly or partly obtained, derived or realised directly or indirectly as a result of the commission of a criminal act or omission;") ; Section 49(2)(j) resources and costs; Section 49(2)(k) any other issue of public interest.

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§ 50GENERAL PROVISIONS - 50. Principles of mutuality and reciprocityProvision

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

Section 50. Principles of mutuality and reciprocity Section For the purposes of this Act, the principles of mutuality and reciprocity shall at all times be recognized.

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§ 51GENERAL PROVISIONS - 51. Request for legal assistance not to cover arrest or extraditionProvision

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

Section 51. Request for legal assistance not to cover arrest or extradition Section Nothing in this Act shall be construed as authorizing the extradition, or the arrest or detention with a view to extradition of any person.

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§ 52GENERAL PROVISIONS - 52. RegulationsProvision

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

Section 52. Regulations Section The Attorney-General may make regulations prescribing matters necessary or convenient for the better carrying out, or giving effect to this Act.

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Legislative relationships

4 referenced instruments

Names are derived from the stored provision headings and citation-enrichment layer. Treat this as a research index and verify each relationship against the source text.

A–F

1 instrument

Children Act
Section 17

G–M

1 instrument

Kenya Citizenship and Immigration Act
Section 37

N–S

2 instruments

Prisons Act
Section 16
Records A request under this Act
Section 13

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15 Sept 2023 · currentEnglish

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