Kenya Defence Forces Act
Part 1 of 2 · provisions 1–200
The Act's short title is "Kenya Defence Forces Act."
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 199
- Version
- 31 Dec 2022
- Language
- en
- Official source
- View official record ↗
- Complete work
- View statute overview
Source attribution: Source: Kenya Law
Statute overview
About this statute
The Act's short title is "Kenya Defence Forces Act." Section 2 provides multiple interpretation definitions and lists specific examples and categories for terms used elsewhere in the Act (including lists of acts, objects related to aircraft, classes of offences, persons and countries connected with external aggression, roles in the Defence Forces, duties such as guard/watch/traffic regulation, meanings for 'serving in operations' and eligible sources for public funds), and contains a transitional clause about reading certain ministerial titles as older titles until the first general elections. Section must strive for the highest standards of professionalism and discipline amongst its members. Section 4. Application of the Act Section every member of the regular forces; A person covered by Section 5(1)(b) may be subject to the Act while accompanying part of the Defence Forces only if they 'has consented, in writing' to be so subject; the Defence Council must prescribe by regulations the form and manner for obtaining that written consent.
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Provisions of Kenya Defence Forces Act
Showing 200 of 317
Part I
PRELIMINARY
- 1 Verify source ↗
PRELIMINARY - 1. Short title
The Act's short title is "Kenya Defence Forces Act."
Section 1. Short title Section This Act may be cited as the Kenya Defence Forces Act. - 2 Verify source ↗
PRELIMINARY - 2. Interpretation
Section 2 provides multiple interpretation definitions and lists specific examples and categories for terms used elsewhere in the Act (including lists of acts, objects related to aircraft, classes of offences, persons and countries connected with external aggression, roles in the Defence Forces, duties such as guard/watch/traffic regulation, meanings for 'serving in operations' and eligible sources for public funds), and contains a transitional clause about reading certain ministerial titles as older titles until the first general elections.
Section 2. Interpretation Section 2(1)(a) assists, encourages, advises, instigates, counsels, commands, or procures another to commit an offence; or Section 2(1)(b) shares in the criminal purpose of design; Section 2(1)(a) parts or components of, or accessories for, aircraft, whether for the time being in an aircraft or not; Section 2(1)(b) engines, armaments, ammunition, bombs and other missiles of any description in, or for use in, an aircraft; Section 2(1)(c) any other gear, apparatus or instruments in, or for use in, an aircraft; Section 2(1)(d) any apparatus used in connection with the taking-off or landing of aircraft, or for detecting the movement of aircraft; Section 2(1)(e) any fuel used for the propulsion of aircraft; and Section 2(1)(f) any material used as a lubricant for aircraft or aircraft material; Section 2(1)(a) an offence under Part XVII; Section 2(1)(b) an offence under a written law other than this Act; or Section 2(1)(c) an act which, if committed in Kenya, would constitute an offence contemplated in paragraph (a) or (b); Section 2(1)(a) any person or country committing external aggression against Kenya; Section 2(1)(b) any person belonging to a country committing such aggression; Section 2(1)(c) such other country as may be declared by the Cabinet Secretary, to be assisting the country committing such aggression; Section 2(1)(d) any person belonging to the country referred to under paragraph (iii); Section 2(1)(a) a person commissioned in any Service of the Defence Forces; or Section 2(1)(b) a person who is attached or seconded as a commissioned officer to any service of the Defence Forces; Section 2(1)(a) on guard duty and posted or ordered to patrol; Section 2(1)(b) on watch; or Section 2(1)(c) under orders to regulate traffic by land, water or air; Section 2(1)(a) when used in relation to a person, means that the person is serving in or with a unit of the Defence Forces engaged in operations against an enemy; Section 2(1)(b) when used in relation to a unit of the Defence Forces, means that the unit is engaged in operations against an enemy; Section 2(1)(a) the national or a county government; Section 2(1)(b) a public body; Section 2(1)(c) allied forces; or Section 2(1)(d) public fund authorised by the Chief of the Kenya Defence Forces, Service Commander or the commanding officer and managed in accordance with the law relating to public finance management; Section 2(1)(a) an officer, warrant officer or non-commissioned officer of superior rank; or Section 2(1)(b) an officer, warrant officer or non-commissioned officer of equal rank but greater seniority while exercising authority as that person’s superior; Section 2(1)(i) obtaining information or a confession from the person or from a third person; Section 2(1)(ii) punishing the person for the act which that person or a third person has committed or is suspected of having committed; Section 2(1)(iii) intimidating or coercing that person or a third person; or Section 2(1)(iv) for any reason based on discrimination of any kind, when such pain or suffering is afflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Section 2(2) Despite subsection (1), until after the first general elections under the Constitution, references in this Act to the words "Cabinet Secretary" or "Principal Secretary" shall be construed to mean "Minister" or "Permanent Secretary" respectively. Section 2(3)(a) a particular rank are to that rank in the Kenya Army; or Section 2(3)(b) a person holding a particular rank include references to a person acting in that rank. - 3 Verify source ↗
PRELIMINARY - 3. Guiding principles
Section must strive for the highest standards of professionalism and discipline amongst its members.
Section 3. Guiding principles Section strive for the highest standards of professionalism and discipline amongst its members; - 4 Verify source ↗
PRELIMINARY - 4. Application of the Act
Section 4. Application of the Act Section every member of the regular forces;
Section 4. Application of the Act Section every member of the regular forces; - 5 Verify source ↗
PRELIMINARY - 5. Application to civilians
A person covered by Section 5(1)(b) may be subject to the Act while accompanying part of the Defence Forces only if they 'has consented, in writing' to be so subject; the Defence Council must prescribe by regulations the form and manner for obtaining that written consent.
Section 5. Application to civilians Section 5(1)(a) outside Kenya; or Section 5(1)(a)(i) outside Kenya; or Section 5(1)(a)(ii) on operations against the enemy; and Section 5(1)(b) has consented, in writing, to subject himself or herself to this Act while so accompanying that part of the Defence Forces. Section 5(2) The Defence Council shall, by regulations, prescribe the form and manner in which the consent under subsection (1)(b) may be obtained. Section 5(3)(a) participates with that unit or other element in the carrying out of any of its movements, manoeuvres, duties in aid of a State organ, duties in a disaster or warlike operations; Section 5(3)(b) is accommodated or provided with rations at the person’s own expense or otherwise by that unit or other element in any country or at any place designated by the Defence Council; Section 5(3)(c) is a dependant outside Kenya of an officer or non-commissioned member serving beyond Kenya with that unit or other element; or Section 5(3)(d) is embarked on a vessel or aircraft of that unit or other element.
Part II
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES
- 10 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 10. Functions of the Cabinet Secretary
The Cabinet Secretary must be the principal adviser to the President on matters relating to defence policy.
Section 10. Functions of the Cabinet Secretary Section be the principal adviser to the President on matters relating to defence policy; - 11 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 11. Delegation of powers and assignment of duties by Cabinet Secretary
The Cabinet Secretary may, in writing and where appropriate, delegate powers or assign duties to Ministry employees; such delegation does not stop the Cabinet Secretary from exercising the power personally, may be subject to conditions the Cabinet Secretary imposes, does not divest the Cabinet Secretary of responsibility, and may be withdrawn or decisions by the delegate may be withdrawn or amended by the Cabinet Secretary.
Section 11. Delegation of powers and assignment of duties by Cabinet Secretary Section 11(1) The Cabinet Secretary may, where appropriate and in writing, delegate any power or assign any duty conferred on him or her under this Act to an employee of the Ministry. Section 11(2) A delegation or assignment under subsection (1) shall not prevent the Cabinet Secretary from exercising the power in question in person. Section 11(3)(a) shall be subject to any conditions the Cabinet Secretary may impose; Section 11(3)(b) shall not divest the Cabinet Secretary of the responsibility concerning the exercise of the powers or the performance of the duty delegated; and Section 11(3)(c) may be withdrawn, and any decision made by the person to whom the delegation is made may be withdrawn or amended by the Cabinet Secretary. - 12 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 12. Functions of the Chief of the Defence Forces
The Chief of the Defence Forces must be the principal adviser to the President and the Cabinet Secretary on military, operational and administrative matters within the Chief's competence.
Section 12. Functions of the Chief of the Defence Forces Section be the principal adviser to the President and Cabinet Secretary on any military, operational and administrative matters within the competence of the Chief of the Defence Forces; - 13 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 13. Delegation of powers by Chief of the Defence Forces
The Chief of the Defence Forces may delegate powers or duties to members of the Defence Forces (subject to the chain of command), may impose conditions on delegations, may withdraw delegations or decisions, but must not delegate powers reserved for officers of a specific rank, and retains the right and responsibility to exercise or oversee those powers personally.
Section 13. Delegation of powers by Chief of the Defence Forces Section 13(1)(a) any member of the Defence Forces, in line with the chain of command. Section 13(1)(b) deleted by ActNo. 44 of 2016, s. 7(b). Section 13(2) A delegation or assignment under subsection (1) shall not prevent the Chief of the Defence Forces from exercising the power in question in person. Section 13(3)(a) shall be subject to any conditions the Chief of the Defence Forces may impose; Section 13(3)(b) shall not divest the Chief of the Defence Forces of the responsibility concerning the exercise of the powers or the performance of the duty delegated, and Section 13(3)(c) may be withdrawn and any decision made by the person to whom delegation is made may be withdrawn or amended by the Chief of the Defence Forces. Section 13(4) In delegating any power or duty under this section, the Chief of the Defence Forces shall not delegate a power exercisable by an officer of a specific rank, seniority or qualification as provided for in this Act, to an officer of a rank or seniority or who holds a qualification other than that contemplated by this Act. [Act No. 44 of 2016 , s. 7.] - 14 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 14. Vice Chief of the Defence Forces
Establishes the office of the Vice Chief of the Defence Forces as a State office and requires the Vice Chief to perform functions and exercise powers assigned by the Chief of the Defence Forces under this Act or any other written law.
Section 14. Vice Chief of the Defence Forces Section 14(1) There is established the office of the Vice Chief of the Defence Forces which shall be a State office. Section 14(2) The Vice Chief of the Defence Forces shall perform such functions and exercise such powers as are assigned by the Chief of the Defence Forces under this Act or any other written law. - 15 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 15. Service Commanders
Section 15 lists Service Commanders (Kenya Army, Kenya Air Force, Kenya Navy) and requires a Service Commander to command, control and administer the Service for which they are responsible.
Section 15. Service Commanders Section 15(1)(a) Kenya Army; Section 15(1)(b) Kenya Air Force; and Section 15(1)(c) Kenya Navy. Section 15(2) A Service Commander of a Service of the Defence Forces shall, command, control and administer the Service for which he or she is responsible. - 16 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 16. Functions of the Service Commanders
Service Commanders must command, control and administer the service for which they are responsible, in accordance with the Constitution, this Act or any other written law, and under the authority of the Chief of the Defence Forces or the Cabinet Secretary, as applicable.
Section 16. Functions of the Service Commanders Section command, control and administer the service to which he or she is responsible, in accordance with the Constitution, this Act or any other written law, under the authority of the Chief of the Defence Forces or the Cabinet Secretary, as applicable; - 17 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 17. Delegation by Service Commander
The Service Commander may delegate powers or duties to service members or Ministry employees (the latter with approval); delegation does not stop the Commander from acting personally, may be subject to conditions, the Commander retains responsibility, may withdraw or amend delegations and decisions, and must not delegate powers reserved for specific ranks or qualifications to others.
Section 17. Delegation by Service Commander Section 17(1)(a) any member of the Service for which he or she is responsible for in line with the chain of command; or Section 17(1)(b) any employee of the Ministry, with the approval of the Cabinet Secretary and the Chief of the Defence Forces. Section 17(2) A delegation or assignment under subsection (1) shall not prevent the Service Commander from exercising the power in question in person. Section 17(3)(a) shall be subject to any conditions the Service Commander may impose; Section 17(3)(b) shall not divest the Service Commander of the responsibility concerning the exercise of the powers or the performance of the duty delegated; and Section 17(3)(c) may be withdrawn, and any decision made by the person to whom the delegation is made may be withdrawn or amended by the Service Commander. Section 17(4) In delegating any power or duty under this section, the Service Commander shall not delegate a power exercisable by an officer of a specific rank, seniority or qualification as provided for in this Act, to an officer of a rank or seniority or who holds a qualification other than contemplated by this Act. [Act No. 44 of 2016 , s. 9(a).] - 18 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 18. Functions of the National Security Council in relation to the Defence Forces
The National Security Council determines, from time to time, the strength of the Defence Forces on the recommendation of the Defence Council.
Section 18. Functions of the National Security Council in relation to the Defence Forces Section determine, from time to time, the strength of the Defence Forces on the recommendation of the Defence Council; - 19 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 19. Composition of the Defence Council, etc
The Defence Council must appoint a secretary (a public officer or member of the Defence Forces). Acts and instructions of the Council must be signified by command under the hand of the chairperson and the secretary. The Council's composition includes the Cabinet Secretary (chairperson), the Chief of the Defence Forces, three Service Commanders and the Principal Secretary.
Section 19. Composition of the Defence Council, etc Section 19(1)(a) the Cabinet Secretary, who is the chairperson; Section 19(1)(b) the Chief of the Defence Forces; Section 19(1)(c) the three Service Commanders of the Defence Forces; and Section 19(1)(d) the Principal Secretary. Section 19(2) The Defence Council shall appoint a public officer or a member of the Defence Forces to be the secretary to the Council. Section 19(3) Acts and instructions of the Defence Council shall be signified, by a command of the Council, under the hand of the chairperson and the secretary to the Council. Section 19(4)(a) communicating the decisions of the Defence Council; and Section 19(4)(b) performing any other function as may be assigned from time to time by the Defence Council. - 20 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 20. Functions of the Defence Council
The Defence Council has multiple duties and powers including oversight of overseas training, ordering members abroad with Parliament approval, receiving reports, formulating and monitoring policy, reviewing disciplinary findings, advising the President, directing deployments, setting recruitment criteria, and performing other assigned functions.
Section 20. Functions of the Defence Council Section 20(1)(a) shall exercise oversight role on the training or undertaking of instructions of members of the Defence Forces in any country outside Kenya; Section 20(1)(b) shall, upon approval by Parliament in accordance with Article 240(8) of the Constitution, order any member to proceed to any place outside Kenya for purposes of undertaking any duty related to the functions of the Defence Forces or employment; Section 20(1)(c) shall receive and act on reports submitted to the Defence Council by the Cabinet Secretary, the Chief of the Defence Forces and Service Commanders; Section 20(1)(d) shall formulate overall Defence Forces policy referred to under Article 241(7)(a) of the Constitution; Section 20(1)(e) shall monitor the implementation of the policies referred to under paragraph (d); Section 20(1)(f) shall receive and where necessary, upon request review findings and sentences arising out of summary disciplinary proceedings; Section 20(1)(g) shall advice the President on any matter relating to and affecting the Defence Forces; Section 20(1)(ga) shall direct and oversee the deployment of the Defence Forces as authorised under this Act; Section 20(1)(gb) shall develop the criteria for the recruitment, promotion and transfer of members of the Defence Forces; and Section 20(1)(h) may perform any other function as may be assigned to it under this Act and any other written law. Section 20(2) In exercising the oversight role under subsection (1)(a), the Defence Council shall ensure that the provisions of Article 232(1)(i) of the Constitution are respected and upheld. [Act No. 44 of 2016 , s. 10.] - 21 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 21. Conduct of business and affairs of the Defence Council
The business and affairs of the Defence Council shall be conducted in accordance with the Second Schedule. Except as provided for in the Second Schedule, the Defence Council may regulate its own procedure.
Section 21. Conduct of business and affairs of the Defence Council Section 21(1) The business and affairs of the Defence Council shall be conducted in accordance with the Second Schedule. Section 21(2) Except as provided for in the Second Schedule, the Defence Council may regulate its own procedure. - 22 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 22. Committees of the Defence Council
The Defence Council may establish committees and may co‑opt persons into them; co‑opted persons may attend and participate in deliberations but must not participate in making decisions.
Section 22. Committees of the Defence Council Section 22(1) The Defence Council may establish committees for the effective discharge of its functions. Section 22(2) The Defence Council may co-opt into the membership of the committees established under subsection (1) other persons whose knowledge and skills are considered necessary for the functions of the Council. Section 22(3) Any person co-opted into a committee of the Defence Council under subsection (2) may attend the meetings of the Council and participate in its deliberations, but shall not participate in the making of decisions. - 23 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 23. Appointments
The President must appoint the Chief of the Defence Forces, the Vice Chief of the Defence Forces and the three Service Commanders on the recommendation of the Defence Council, subject to specified eligibility requirements.
Section 23. Appointments Section 23(1) The Chief of the Defence Forces, the Vice Chief of the Defence Forces and the three Service Commanders shall be appointed by the President on the recommendation of the Defence Council. Section 23(2)(a) is a citizen of Kenya pursuant to Article 78 of the Constitution; Section 23(2)(b) is a member of the regular Defence Forces; and Section 23(2)(c) meets the requirements of Chapter Six of the Constitution. Section 23(3)(a) seniority; Section 23(3)(b) military and formal civil education; Section 23(3)(c) the possession of a relevant degree from a university or an institution recognized in Kenya or such other equivalent qualifications as may be approved by the Defence Council; and Section 23(3)(d) military and security experience. Section 23(4)(a) ensure that the provisions of Articles 27 and 241(4) of the Constitution are respected and upheld; and Section 23(4)(b) be guided by the provisions of Article 73(2)(a), (b) and (d) of the Constitution. - 24 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 24. Term of office
Senior defence officers serve one four-year term or retire when they reach mandatory retirement age; the President may extend a term by up to one year in war or emergency on the Defence Council's recommendation.
Section 24. Term of office Section 24(1) The Chief of the Defence Forces, the Vice Chief of the Defence Forces and the Service Commanders shall serve for a single term of four years or retire upon the attaining of the mandatory retirement age, whichever comes first. Section 24(2) Notwithstanding subsection (1), the President may on the recommendation of the Defence Council extend the term of office of the Chief of the Defence Forces, the Vice Chief of the Defence Forces or the Service Commanders for a period not exceeding one year in times of war or emergency. [Act No. 44 of 2016 , s. 11.] - 25 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 25. Determination of salaries
The Salaries and Remuneration Commission must set and regularly review the pay and benefits of the Chief of the Defence Forces, the Vice Chief of the Defence Forces and three Service Commanders.
Section 25. Determination of salaries Section The Salaries and Remuneration Commission shall set and regularly review the remuneration and benefits of the Chief of the Defence Forces, the Vice Chief of the Defence Forces and three Service Commanders in accordance with Article 230(4) of the Constitution and the Salaries and Remuneration Act (Cap. 412D). - 26 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 26. Removal, retirement and deployment from Defence Forces
The President may remove, retire or redeploy the Chief of the Defence Forces, the Vice Chief of the Defence Forces or any Service Commander before the expiry of their term of office.
Section 26. Removal, retirement and deployment from Defence Forces Section The President may remove, retire or redeploy the Chief of the Defence Forces, the Vice Chief of the Defence Forces or any of the Service Commanders at any time before the expiry of the term of office. - 27 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 27. Vacancy
When a vacancy occurs under subsection (1), the President must appoint a replacement in accordance with section 23.
Section 27. Vacancy Section 27(1)(a) dies; Section 27(1)(a)(i) dies; Section 27(1)(a)(ii) resigns from office by a notice in writing addressed to the President; Section 27(1)(a)(iii) is retired, redeployed or removed from office in accordance with section 26 ; Section 27(1)(a)(iv) is dismissed from the Defence Forces by a court-martial; Section 27(1)(b) the holder's commission is terminated; or Section 27(1)(c) the holder's service is terminated on disciplinary or any other ground. Section 27(2) Where a vacancy occurs under subsection (1), the President shall appoint a replacement in accordance with section 23 . - 28 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 28. Recruitment and appointment of members of Defence Forces
The Defence Council must recruit and appoint members of the Defence Forces (except State Officers), consult the Public Service Commission when developing recruitment criteria, advertise county recruitment centres at least thirty days before recruitment, and may appoint an authorised recruiter in the prescribed manner.
Section 28. Recruitment and appointment of members of Defence Forces Section 28(1) The Defence Council shall recruit and appoint members of the Defence Forces, other than the members who are State Officers. Section 28(2) In developing the criteria for the recruitment, promotion and transfer of members of the Defence Forces, the Defence Council shall consult with the Public Service Commission. Section 28(3) The Defence Council shall advertise the designated recruitment centres for all the counties at least thirty days before recruitment. Section 28(4) The criteria developed under subsection (2) shall comply with the Constitution and this Act. Section 28(5) The Defence Council may, in the prescribed manner and on its behalf, appoint a person authorised to recruit service members into the Defence Forces. Section 28(6) The recruitment and appointment procedure under this Act shall comply with Article 232(1)(g), (h) and (i) of the Constitution. [Act No. 44 of 2016 , s. 12.] - 29 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 29. Terms and conditions of service of members of the Defence Forces
The Defence Council must determine Defence Forces members' salaries (on advice of the Salaries and Remuneration Commission) and determine their conditions of service (in consultation with the Public Service Commission).
Section 29. Terms and conditions of service of members of the Defence Forces Section 29(1) The Defence Council shall, on the advice of the Salaries and Remuneration Commission, determine the salaries of the members of the Defence Forces. Section 29(2) The Defence Council shall, in consultation with the Public Service Commission, determine the conditions of service of members of the Defence Forces. - 30 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 30. Defence controlled unit and constabulary
Section 30(1)(a) and (b) establishes defence controlled units under the Chief of the Defence Forces and a support staff unit called the constabulary; Section 30(2) requires the Defence Council to determine by regulations how far the Act applies to members of those units.
Section 30. Defence controlled unit and constabulary Section 30(1)(a) establish defence controlled units of the Defence Forces, which shall be under the Chief of the Defence Forces; Section 30(1)(b) establish a support staff unit to be known as the constabulary. Section 30(2) The Defence Council shall by regulations determine the extent to which this Act shall apply to the members of the units created under subsection (1)(a) and (b). - 6 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 6. Constitution of the Defence Forces
Section 6 lists the components of the Defence Forces: the Kenya Army, the Kenya Air Force and the Kenya Navy; it also specifies the regular force, the reserve force (regular and volunteer reserve) as determined by the Defence Council or national legislation, and cadet forces; and states that the composition of command shall reflect the regional and ethnic diversity of the people of Kenya.
Section 6. Constitution of the Defence Forces Section 6(1)(a) the Kenya Army; Section 6(1)(b) the Kenya Air Force; and Section 6(1)(c) the Kenya Navy. Section 6(2)(a) the regular force consisting of officers and service members; Section 6(2)(b) the reserve force, consisting of the regular and volunteer reserve, as determined by the Defence Council or national legislation; and Section 6(2)(c) the cadet forces, as may be determined, from time to time, by the Defence Council. Section 6(3) The composition of command of the Defence Forces shall reflect the regional and ethnic diversity of the people of Kenya. - 7 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 7. Determination of strength of Defence Forces
Establishes how the size, units, and names of the Defence Forces are determined: the National Security Council determines the maximum number of members; the President may determine units and formations in consultation with the Defence Council; and the Cabinet Secretary, under the President's direction, must name and may vary unit names by Gazette notice.
Section 7. Determination of strength of Defence Forces Section 7(1) The Defence Forces shall consist of such maximum number of members as shall be determined, from time to time, by the National Security Council, on the recommendation of the Defence Council. Section 7(2) There shall be established such units and formations in the Defence Forces as the President may, in consultation with the Defence Council, determine. Section 7(3) Under the direction of the President, the Cabinet Secretary shall, by notice in the Gazette , assign names to units and formations of the Defence Forces and vary or replace any such names. - 8 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 8. Functions of the Defence Forces
Section 8 sets out the functions of the Defence Forces: they must defend and protect the Republic's sovereignty and territorial integrity; must assist and cooperate with other authorities in emergencies and report to the National Assembly when deployed; may be deployed to restore peace only with the National Assembly's approval; and must not act in a partisan way, further political party interests, or prejudice legitimate political interests.
Section 8. Functions of the Defence Forces Section 8(1)(a) shall be responsible for the defence and protection of the sovereignty and territorial integrity of the Republic; Section 8(1)(b) shall assist and co-operate with other authorities in situations of emergency or disaster and report to the National Assembly whenever deployed in such circumstances; and Section 8(1)(c) may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly. Section 8(2)(a) act in a partisan manner; Section 8(2)(b) further any interest of a political party or cause; or Section 8(2)(c) prejudice a political interest or political cause that is legitimate under the Constitution. Section 8(3) Deleted by ActNo. 44 of 2016, s. 3. Section 8(4) Deleted by ActNo. 44 of 2016, s. 3. [Act No. 44 of 2016 , s. 3.] - 9 Verify source ↗
CONSTITUTION, STRUCTURE, COMMAND AND ADMINISTRATION OF THE DEFENCE FORCES - 9. The Commander-in-Chief of the Defence Forces
The President is the Commander-in-Chief of the Defence Forces, appoints senior Defence Force officers, is responsible for organisation and command, must ensure appointments reflect regional and ethnic diversity, and appointees must take the oath in the First Schedule.
Section 9. The Commander-in-Chief of the Defence Forces Section 9(1) Pursuant to Article 131(1)(c) of the Constitution, the President is the Commander-in-Chief of the Defence Forces. Section 9(2)(a) appoint the Chief of the Defence Forces, Vice Chief of the Defence Forces and the three Service Commanders; and Section 9(2)(b) be responsible for the organization and command of the Defence Forces. Section 9(3) Any person appointed as Chief of the Defence Forces, Vice Chief of the Defence Forces or a Service Commander shall, on being appointed, take and subscribe to the oath or affirmation of office prescribed in the First Schedule. Section 9(4) In making the appointments under subsection (2), the President shall ensure that the appointments reflect the regional and ethnic diversity of the people of Kenya.
Part III
CO-OPERATION WITH OTHER AUTHORITIES IN KENYA
- 31 Verify source ↗
CO-OPERATION WITH OTHER AUTHORITIES IN KENYA - 31. Co-operation with other authorities
If the National Assembly is not in session during the first seven days after a deployment of the Defence Forces, the Cabinet Secretary must provide the information required under subsection (2) to the Speaker of the National Assembly.
Section 31. Co-operation with other authorities Section 31(1)(a) shall assist and co-operate with other authorities in situations of emergency or disaster, and report to the National Assembly whenever deployed in such circumstances; Section 31(1)(b) may be deployed to restore peace in any part of Kenya affected by unrest or instability but only with the approval of the National Assembly; and Section 31(1)(c) shall, in the interest of national security, co-operate and work with other security organs in the discharge of its constitutional mandate. Section 31(2)(a) reasons for such deployment; Section 31(2)(b) place where the Defence Forces is being deployed; Section 31(2)(c) period for which the Defence Forces is expected to be deployed; Section 31(2)(d) expenditure incurred or expected to be incurred. Section 31(3) If the National Assembly is not in session during the first seven days after the deployment of the Defence Forces as contemplated in subsection (2), the Cabinet Secretary shall provide the information required under subsection (2) to the Speaker of the National Assembly. [Act No. 44 of 2016 , s. 13.] - 32 Verify source ↗
CO-OPERATION WITH OTHER AUTHORITIES IN KENYA - 32. Deployment of Defence Forces to restore peace in Kenya
The Defence Council must deploy the Defence Forces to restore peace in parts of Kenya affected by unrest or instability upon approval by the National Assembly; when deployed the Chief of the Defence Forces is responsible for administration, control and overall superintendence of the operation.
Section 32. Deployment of Defence Forces to restore peace in Kenya Section 32(1) Pursuant to Article 241(3)(c) of the Constitution, the Defence Council shall deploy the Defence Forces in any part of Kenya affected by unrest or instability to restore peace upon approval by the National Assembly. Section 32(2) Whenever the Defence Forces are deployed to restore peace in any part of Kenya pursuant to subsection (1), the Chief of the Defence Forces shall be responsible for the administration, control and overall superintendence of the operation. [Act No. 44 of 2016 , s. 14.] - 33 Verify source ↗
CO-OPERATION WITH OTHER AUTHORITIES IN KENYA - 33. Deployment in support of National Police Service
The Defence Forces may be deployed to support the National Police Service and other authorities during emergencies or disasters, and when so deployed the Inspector-General of the National Police Service is responsible for control and overall superintendence of the operation.
Section 33. Deployment in support of National Police Service Section 33(1) The Defence Forces may be deployed in a joint operation and in support of the National Police Service and other authorities in situations of emergency or disaster. Section 33(2) Deleted by ActNo. 44 of 2016, s. 15(b). Section 33(3) Whenever the Defence Forces are deployed pursuant to subsection (1), the Inspector-General of the National Police Service shall be responsible for the control and overall superintendence of the operation. [Act No. 44 of 2016 , s. 15.] - 34 Verify source ↗
CO-OPERATION WITH OTHER AUTHORITIES IN KENYA - 34. Regulation of support operation, etc
When the Defence Forces are deployed in support and that deployment is approved, the Cabinet Secretary must issue a Gazette notice of commencement within twenty four hours; deployments must comply with constitutional human-rights standards.
Section 34. Regulation of support operation, etc Section 34(1) In the event of the Defence Forces being deployed in support of the National Police Service and other authorities, such deployment shall comply with constitutional standards relating to human rights and fundamental freedoms. Section 34(2) Where the deployment of the Defence Forces in support of the National Police Service and other authorities is approved as contemplated in Article 241(3) of the Constitution and section 33 (1), the Cabinet Secretary shall, within twenty four hours, issue a notice in the Gazette of the commencement of such deployment. Section 34(3)(a) within twenty-four hours, issue notice in the Gazette , of the discontinuation of the deployment; and Section 34(3)(b) report to the National Assembly on the deployment. Section 34(4)(a) may only be performed in such area or at such place as the National Security Council or the President may determine; Section 34(4)(b) shall be discontinued as National Security Council or the President deems expedient and necessary; and Section 34(4)(c) a code of conduct and operational procedures on the regulation of the Defence Forces support operations approved by the Defence Council; Section 34(4)(c)(i) a code of conduct and operational procedures on the regulation of the Defence Forces support operations approved by the Defence Council; Section 34(4)(c)(ii) co-operation between the Defence Forces and the National Police Service; and - 35 Verify source ↗
CO-OPERATION WITH OTHER AUTHORITIES IN KENYA - 35. Powers and duties of members while being deployed
When Defence Forces members are deployed under section 33 they have the same powers and duties as National Police Service members, except they do not have powers to investigate crime; they must hand over arrested persons or seized items to the National Police Service as soon as possible, receive appropriate training before deployment, and are regarded as military police officers when exercising powers.
Section 35. Powers and duties of members while being deployed Section 35(1) Whenever the Defence Forces or any portion or member thereof has been deployed under section 33 , that member of the Defence Forces shall have the same powers and exercise the same duties as those conferred or imposed upon a member of the National Police Service. Section 35(2)(a) successful execution of that deployment; Section 35(2)(b) maintenance of law and order; or Section 35(2)(c) preservation of the internal security of the State. Section 35(3) The powers and duties referred to in subsection (1) shall not include powers and duties to investigate crime. Section 35(4) A member of the Defence Forces who arrests or detains any person or seizes any article or object shall as soon as possible hand that person, article or object over to the National Police Service or any other appropriate functionary designated by relevant law. Section 35(5)(a) be liable to the same extent as a member would have been liable in like circumstances if that member was a member of the National Police Service; and Section 35(5)(b) have the benefit of all the indemnities to which a member of that National Police Service would in like circumstances be entitled to. Section 35(6) A member of the Defence Forces who exercises any power by virtue of this section shall be regarded as a military police officer. Section 35(7)(a) a member of the National Police Service any power to exercise command or control over any member of the Defence Forces; or Section 35(7)(b) a member of the Defence Forces any power to exercise command or control over any member of the National Police Service. Section 35(8) A provision of this Act relating to the powers and duties of a member of the Defence Forces may not be construed as removing, detracting from or diminishing any power or duty expressly conferred, enforced or imposed by any other law upon such a member of the Defence Forces. Section 35(9) Members of the Defence Forces deployed in terms of subsection (1) shall receive appropriate training prior to such deployment and shall be equipped accordingly.
Part IV
RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA
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RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA - 36. Attachment to other forces and employment outside Kenya
The Defence Council may place officers or service members at the disposal of foreign service authorities for training; after the National Security Council deploys Defence Forces under subsection (2) the President must order the Chief of the Defence Forces to effect the deployment; service members retain their rights and such service counts for gratuities and pension.
Section 36. Attachment to other forces and employment outside Kenya Section 36(1) The Defence Council may place any officer or service member at the disposal of the service authorities of any country for the purpose of undergoing instructions or training, subject to anything to the contrary in the conditions applicable to that officer or member's service. Section 36(2)(a) regional or international peace support operations; or Section 36(2)(a)(i) regional or international peace support operations; or Section 36(2)(a)(ii) other support operations; and Section 36(2)(b) approve the deployment of foreign forces in Kenya. Section 36(3) Immediately after the National Security Council has deployed the Defence Forces under subsection (2), the President shall order the Chief of the Defence Forces to effect the deployment by ordering any unit of the Defence Forces to be employed outside Kenya as may be specified in the order. Section 36(4)(a) shall not cease to be subject to this Act; and Section 36(4)(b) shall retain the service member's rights and such service shall be taken into account to the same extent as if it had been service in Kenya for the purposes of gratuities and pension on discharge. - 37 Verify source ↗
RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA - 37. Co-operation with other forces and forces visiting Kenya
Treaties or agreements under subsection (1) must protect the interests of the local community where foreign military forces are deployed and must provide that foreign forces are subject to the Constitution and all laws of Kenya.
Section 37. Co-operation with other forces and forces visiting Kenya Section 37(1)(a) members of the Defence Forces placed at the disposal of the military authorities of such State, institution or organisation; Section 37(1)(b) foreign military personnel and their mission while the personnel are deployed in Kenya; Section 37(1)(c) the conditions of operation of the Defence Forces, and the foreign military personnel outside gazetted areas; or Section 37(1)(d) the compensation of local communities in the event of accidents in areas where the military is deployed. Section 37(2) A treaty or agreement entered into under subsection (1) shall put in place mechanisms to protect the interests of the local community of the place where the foreign military forces are deployed and such treaty shall also provide that the foreign forces are subject to the Constitution and all the laws of Kenya. - 38 Verify source ↗
RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA - 38. Service by members in fulfillment of international obligation
Every member must render service in fulfillment of international obligations and is entitled to additional emoluments and benefits as agreed with the international body, subject to the member's rights and conditions under this Act.
Section 38. Service by members in fulfillment of international obligation Section is subject to such member's rights and conditions of service under this Act, and shall be rendered by every member for such additional emoluments and benefits, including medical, travelling and subsistence, transport, leave, maintenance, assurance, insurance, tax, disability and death benefits as may be determined by agreement with the international body; - 39 Verify source ↗
RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA - 39. Attachment of personnel
Members of foreign forces temporarily attached to the Defence Forces are subject to Defence Forces laws and, where attached, have the same command and punishment powers as equivalent-ranked Defence Forces members; the President may direct application of the laws with specified exceptions by Gazette notice.
Section 39. Attachment of personnel Section 39(1)(a) temporarily attach to the Defence Forces any member of a force of any State or country which is placed at the disposal of the Defence Forces for that purpose by the military authorities of that State or country as the case may be; or Section 39(1)(b) subject to the conditions applicable to his or her service, place any member of the Defence Forces at the disposal of the military authorities of any State or country for purposes of being attached temporarily by those authorities to the forces of that country. Section 39(2) Subject to subsection (3) and where an international treaty or agreement applies, a member of a force of any other State or country who is attached temporarily to the Defence Forces, is subject to the laws applicable to the Defence Forces and shall be treated, and has the same power of command and punishment over members of the Defence Forces, as if he or she were a member of the Defence Forces of a rank equivalent to that held by him or her as a member of the force of the State or country from which he or she belongs. Section 39(3) The President may, by notice in the Gazette , direct that in relation to members of a force of any State or country specified in the notice, the laws relating to the Defence Forces apply with such exceptions and subject to such adaptations and modifications as may be so specified. - 40 Verify source ↗
RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA - 40. Command over members serving together with other military force or under control of international body
Members of a foreign military serving together with, or officers commanding combined forces with, the Defence Forces are to be treated as holding equivalent rank and have powers of command (and punishment for officers) over Defence Forces personnel when the President declares they are serving together or acting in combination by notice in the Gazette.
Section 40. Command over members serving together with other military force or under control of international body Section 40(1)(a) serving together, every member of that military force shall be treated, and have powers of command over those members of the Defence Forces, as if he or she were a member of the Defence Forces of the relative rank; or Section 40(1)(b) acting in combination, every officer of that military force appointed to command the combined forces or any part thereof shall be treated, and have powers of command and of punishment over those members of the Defence Forces, as if he or she were an officer of the Defence Forces of the relative rank. Section 40(2) For purposes of this section, the Defence Forces and any other force shall be regarded as serving together or acting in combination whenever the President has, by notice in the Gazette , declared that they are so serving or acting, and the relative rank of members of the Defence Forces and of such other force is as designated by such notice. Section 40(3)(a) serving together, every member of that military force shall be treated, and have powers of command over those members of the Defence Forces, as if he or she were a member of the Defence Forces of the relative rank; or Section 40(3)(b) acting in combination, every officer of that military force appointed to command the combined forces or any portion thereof, shall be treated, and have powers of command and punishment over those members of the Defence Forces, as if he or she were an officer of the Defence Forces of the relative rank. - 41 Verify source ↗
RELATIONSHIP WITH OTHER COUNTRIES AND EMPLOYMENT OUTSIDE KENYA - 41. Application of UNCLOS in law enforcement power at sea
The Defence Forces must, when enforcing Kenyan laws at sea, comply with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).
Section 41. Application of UNCLOS in law enforcement power at sea Section The Defence Forces shall, in the enforcement of relevant Kenyan laws at sea comply with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).
Part IX
COURTS MARTIAL
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COURTS MARTIAL - 160. Constitution of the courts martial
A Judge Advocate appointed under section 165 shall be the presiding officer; at least five other members are appointed if an officer is being tried; and not less than three other members in any other case. Members must be officers qualified and not ineligible under section 164; members must be of equivalent rank to the accused if the accused is an officer, and the lowest ranking officer available when the accused is a service member. The Chief Justice may make rules regulating administration and proceedings of the courts martial.
Section 160. Constitution of the courts martial Section 160(1)(a) a Judge Advocate, appointed under section 165 , who shall be the presiding officer; Section 160(1)(b) at least five other members, appointed by the Defence Court-martial Administrator if an officer is being tried; and Section 160(1)(c) not less than three other members in any other case. Section 160(2) The members of the court-martial shall be officers so qualified and not ineligible in accordance with section 164 . Section 160(3)(a) of equivalent rank as the accused person where the accused person is an officer; and Section 160(3)(b) the lowest ranking officer in the Defence Forces who is available at the time where the accused person is a service member. Section 160(4) The Chief Justice may make rules generally to regulate the administration and proceedings of the courts martial. [Act No. 44 of 2016 , s. 26.] - 161 Verify source ↗
COURTS MARTIAL - 161. Guiding principles in exercising Judicial authority
The court-martial must be guided by the principles in Article 159(2) of the Constitution when exercising its powers and discharging its functions.
Section 161. Guiding principles in exercising Judicial authority Section In addition to other principles and values provided for in the Constitution, the court-martial shall, in the exercise of its powers and discharge of its functions, be guided by the principles provided for under Article 159(2) of the Constitution. - 162 Verify source ↗
COURTS MARTIAL - 162. Sitting and power of the court-martial
Court-martial may sit in any place (inside or outside Kenya); may adjourn to sit at another place when necessary in the interests of justice; and has the power to try persons subject to the Act and award punishments provided by the Act.
Section 162. Sitting and power of the court-martial Section 162(1) The court-martial may sit in any place, whether within or outside the Republic of Kenya. Section 162(2) If a court-martial sitting at some place considers it necessary in the interests of justice to sit at some other place, it may adjourn for the purpose of sitting at that other place. Section 162(3) A court-martial shall have the power to try any person subject to this Act for any offence under this Act, and to award any punishment provided for by this Act for that offence. - 163 Verify source ↗
COURTS MARTIAL - 163. Convening of court-martial
A court-martial may be convened by the Defence Court‑Martial Administrator or the Service Court‑Martial Administrator for each service; the order must be signed by the relevant Administrator; those Administrators shall be legal officers qualifying as Registrars and shall be appointed by the Defence Council.
Section 163. Convening of court-martial Section 163(1) A court-martial may be convened by the Defence Court-Martial Administrator or Service Court-Martial Administrator in respect of each service, as the case may be. Section 163(2) An order convening a court-Martial shall be signed either by the Defence Court-Martial Administrator or by the Service Court-Martial Administrator in respect of each Service. Section 163(3) For purposes of this section, the Defence Court-Martial Administrator and Service Court-Martial Administrators shall be legal officers who qualify to be appointed as Registrars of the Court of Appeal and High Court respectively, and shall be appointed by the Defence Council. - 164 Verify source ↗
COURTS MARTIAL - 164. Disqualifications for membership of court-martial
Certain officers are disqualified from serving on (or acting as Judge Advocate at) a court-martial: the convening officer for that court-martial; any officer who between the accused being charged and the trial was the accused's commanding officer; and any officer who investigated the charge or who under service law held or participated in an inquiry into the subject-matter of the charge.
Section 164. Disqualifications for membership of court-martial Section 164(1) The convening officer shall not be a member of a court-martial which that officer convenes. Section 164(2) An officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the accused's commanding officer, and any officer who has investigated the charge against the accused, or who under service law has held or been one of the persons holding an inquiry into matters relating to the subject-matter of the charge, shall not be a member of the court-martial which tries that accused, nor shall that person be Judge Advocate at the court-martial. - 165 Verify source ↗
COURTS MARTIAL - 165. Appointment of Judge Advocate
Appointment of Judge Advocate
Section 165. Appointment of Judge Advocate Section a magistrate; or - 166 Verify source ↗
COURTS MARTIAL - 166. Indemnity from personal liability
Indemnity from personal liability
Section 166. Indemnity from personal liability - 167 Verify source ↗
COURTS MARTIAL - 167. Challenge
An accused person may object to any court member on reasonable grounds; objections must be considered, and successful objections to the presiding officer lead to adjournment and appointment of a replacement by the Chief Justice; objected members must retire and vacancies may be filled.
Section 167. Challenge Section 167(1) An accused person may, on any reasonable grounds, object to any member of the court, whether appointed originally or in place of another member. Section 167(2) To enable the accused person exercise the right of objection conferred by subsection (1), the names of the members of the court shall be read out in the presence of the accused person before their swearing in, and the accused shall be afforded an opportunity to object to any of those members. Section 167(3) Every objection made by an accused to a member shall be considered by the other members of the court. Section 167(4) If the objection is to the presiding officer and a majority of the other members of the court allow it, the court shall adjourn and the Chief Justice shall appoint another presiding officer in accordance with section 165 . Section 167(5) If the objection is to any other member of the court and a majority of the members entitled to vote allow it, the member objected to shall retire and the vacancy may be, or if the number of members would be reduced below the legal minimum shall be, filled in the prescribed manner by another officer. - 168 Verify source ↗
COURTS MARTIAL - 168. Oaths and affirmations
Specifies who must take an oath or make an affirmation and how oaths/affirmations for witnesses (including children) are to be handled.
Section 168. Oaths and affirmations Section 168(1) An oath shall be taken by every member of a court-martial, the Judge Advocate and any other person attending as interpreter person recording the proceedings or officer under instruction. Section 168(2)(a) if a child called as a witness does not, in the opinion of the court, understand the nature of the oath, the child's evidence may be received unsworn if in the opinion of the court the child is sufficiently intelligent to justify the evidence being received and understands the duty of speaking the truth, but if the child's evidence is given unsworn on behalf of the prosecution, the accused may not be convicted upon that evidence unless it is corroborated by some other material evidence supporting it and implicating the accused; or Section 168(2)(b) if a person objects to being sworn on the ground either that the person has no religious belief or that the taking of an oath is contrary to the person's religious belief, or if it is not reasonably practicable to administer an oath to a person in the manner appropriate to the person's religious belief, that person shall make an affirmation instead. Section 168(3) An oath or affirmation required to be made under this section shall be in the prescribed form and shall be administered at the prescribed time, by the prescribed person and in the prescribed manner. - 169 Verify source ↗
COURTS MARTIAL - 169. Court-martial to sit in open court
A court-martial must sit in open court in the presence of the accused, may sit in closed court in specified circumstances, must sit in closed court when deliberating on findings or sentence, and when sitting in closed court persons other than members and prescribed persons must not be present.
Section 169. Court-martial to sit in open court Section 169(1) Subject to this section, a court-martial shall sit in open court and in the presence of the accused. Section 169(2) A court-martial may sit in closed court if it considers it necessary or expedient in the interests of the administration of justice to do so, and without prejudice to that power a court-martial may order that, subject to any exceptions the court may specify, the public shall be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part, as the case may be, might otherwise lead to disclosure of any information which might directly or indirectly endanger security, to protect witnesses or vulnerable persons, morality and public order. Section 169(3) A court-martial shall sit in closed court while deliberating on its finding or sentence on any charge. Section 169(4) A court-martial may sit in closed court on any other deliberation amongst its members. Section 169(5) If a court-martial sits in closed court, any other person shall not be present except the members of the court and such other persons as may be prescribed. - 170 Verify source ↗
COURTS MARTIAL - 170. Evidence
Evidence admissibility in courts-martial follows the same rules as in civil courts; a person cannot be required to answer questions or produce documents they could not be required to in civil courts; a court-martial must take judicial notice of matters of common knowledge.
Section 170. Evidence Section 170(1) The rules as to the admissibility of evidence to be observed in proceedings before courts martial shall be the same as those observed in civil courts. Section 170(2) A person shall not be required in proceedings before a court-martial to answer any question or to produce any document which that person could not be required to answer or produce, as the case may be, in similar proceedings before a civil court. Section 170(3) Despite the provisions of section 25A of the Evidence Act ( Cap. 80 ), confessions recorded before an officer not below the rank of major, other than the investigating officer, shall be admissible in a trial before a court-martial and such confessions shall be recorded in accordance with the Evidence (Out of Court Confessions) Rules (Sub. Leg). Section 170(4)(a) shall, in a trial by a court-martial, be admissible as evidence of the facts declared in it in a case where, and to the extent to which, oral evidence to similar effect would be admissible in that trial; Section 170(4)(b) where the declaration is put forward on behalf of the prosecution, unless a copy of the declaration has, not less than seven days before the commencement of the trial, been delivered to the accused; Section 170(4)(b)(i) where the declaration is put forward on behalf of the prosecution, unless a copy of the declaration has, not less than seven days before the commencement of the trial, been delivered to the accused; Section 170(4)(b)(ii) where the declaration is put forward on behalf of the defence, unless a copy of the declaration has, not less than seven days before the commencement of the trial, or within such shorter period as the court may allow, been delivered to the Director of Military Prosecutions; or Section 170(4)(b)(iii) in any case, if within three days before the commencement of the trial or such longer period as the court may in special circumstances allow, the accused or the Director of Military Prosecutions has delivered a notice in the prescribed form to the any of them requiring that oral evidence shall be given instead of a statutory declaration; or Section 170(4)(b)(iv) in any case, if the court-martial is of the opinion that it is desirable in the interests of justice that oral evidence should be given instead of a statutory declaration and records that it is of that opinion. Section 170(5) A court-martial shall take judicial notice of all matters of common knowledge, including all matters within the general service knowledge of the court, and of all other matters of which judicial notice would be taken in a civil court. - 171 Verify source ↗
COURTS MARTIAL - 171. Privileges of witnesses and others
A witness before a court-martial or any person required to attend is entitled to the same immunities and privileges as a witness before the High Court.
Section 171. Privileges of witnesses and others Section A witness before a court-martial or any other person whose duty it is to attend the court is entitled to the same immunities and privileges as a witness before the High Court. - 172 Verify source ↗
COURTS MARTIAL - 172. Contempt of court
Courts martial have the powers and jurisdiction to try matters of contempt of court.
Section 172. Contempt of court Section The courts martial shall, in relation to persons who are subject to this Act or not, and in the exercise of its powers and performance of its functions, have the powers and jurisdiction to try matters of contempt of court as provided for under section 121 of the Penal Code ( Cap. 63 ). - 173 Verify source ↗
COURTS MARTIAL - 173. Power to convict of offence other than that charged
An accused tried before a court-martial may be convicted in several ways: of the charged offence committed with lesser circumstances when greater circumstances aren’t proved; of attempting the charged offence; of the completed offence when charged with attempt; and, where charged under section 133 with attempting a civil offence, may be convicted of the actual civil offence if proved; the court-martial may also convict for a different Part VI offence if evidence shows it was committed.
Section 173. Power to convict of offence other than that charged Section 173(1) An accused charged before a court-martial with an offence under Part VI may be convicted of the offence as having been committed in circumstances involving a less punishment, if it is not proved that the offence was committed in circumstances involving a greater punishment. Section 173(2) An accused charged before a court-martial with an offence may be convicted of attempting to commit that offence. Section 173(3) An accused charged before a court-martial with attempting to commit an offence may be convicted on that charge although it is proved that he or she actually committed the offence. Section 173(4) If an accused is charged before a court-martial under section 133 with attempting to commit a civil offence, the accused may be convicted on that charge although it is proved that the accused actually committed the civil offence. Section 173(5)(a) the corresponding civil offence is one in proceedings for which, if the accused had been tried by a civil court for committing the offence in Kenya, the accused might have been convicted of another civil offence; and Section 173(5)(b) the court-martial finds that the accused has committed that other civil offence, Section 173(6) An accused charged before a court-martial with an offence under Part VI may be convicted for another offence under Part VI where the evidence shows that the accused has committed that other offence. - 174 Verify source ↗
COURTS MARTIAL - 174. Death of a Judge Advocate or member of the courts martial
If the Judge Advocate dies or is unavailable, the successor may treat previously recorded evidence as if taken under their direction and continue the case; the presiding officer may declare a mistrial if continuing is impracticable due to the accused's sickness or incapacity; where three or more original members cannot continue, the accused may choose to proceed with newly appointed members or request a retrial.
Section 174. Death of a Judge Advocate or member of the courts martial Section 174(1)(a) the court-martial is, by reason of the death of the Judge Advocate or for any other reason, the Judge Advocate is unavailable to proceed with the hearing of the matter, his or her successor, appointed in accordance with this Act, may deal with any evidence taken down under this Act as if such evidence had been taken down by him or her or under his or her direction under this Act, and may proceed with the case from the stage at which his or her predecessor left it; or Section 174(1)(b) it is represented to the court-martial that, owing to the sickness or other incapacity of the accused, it is impracticable having regard to all the circumstances to continue the trial within a reasonable time, the presiding officer may declare a mistrial. Section 174(2) Where for any reason, three or more members of the court-martial who started the initial hearing of the matter at hand are absent or are unable to continue with the hearing, the accused person shall have the discretion to chose to proceed with the matter with the newly appointed members or request for a retrial. Section 174(3) In the event that a mistrial is declared, a new court-martial may be reconvened to try the accused. - 175 Verify source ↗
COURTS MARTIAL - 175. Rulings and directions by Judge Advocate
In proceedings before a court-martial, the Judge Advocate must give rulings and directions on questions of law, procedure or practice.
Section 175. Rulings and directions by Judge Advocate Section 175(1) In proceedings before a court-martial, rulings and directions on questions of law, procedure or practice shall be given by the Judge Advocate. Section 175(2) Any rulings or directions given under subsection (1) shall be binding on the court. - 176 Verify source ↗
COURTS MARTIAL - 176. Decision of court-martial
Court-martial questions are decided by a majority of members; the Judge Advocate cannot vote on findings but has a casting vote on sentences; ties on findings lead to acquittal; unanimous concurrence is required for death-only convictions, otherwise the presiding officer must declare a mistrial and the accused may be tried again.
Section 176. Decision of court-martial Section 176(1) Subject to this section, every question to be determined on a trial by a court-martial shall be determined by a majority of the votes of the members of the court. Section 176(2) The Judge Advocate is not entitled to vote on the finding. Section 176(3) In the case of an equality of votes on the finding, the court shall acquit the accused. Section 176(4) In the case of an equality of votes on the sentence, the Judge Advocate has a casting vote. Section 176(5) A conviction, where the only punishment that the court can award is death shall not have effect unless it is reached with the concurrence of all members of the court and, where all the members do not concur in a conviction in such a case, the presiding officer shall declare a mistrial and the accused may be tried by another court. - 177 Verify source ↗
COURTS MARTIAL - 177. Finding and sentence
Section 177(1) Without prejudice to section 169 , the finding of a court-martial on each charge shall be announced in open court. Section 177(2) The sentence of a court-martial, together with any recommendation to mercy, shall be announced in open court.
Section 177. Finding and sentence Section 177(1) Without prejudice to section 169 , the finding of a court-martial on each charge shall be announced in open court. Section 177(2) The sentence of a court-martial, together with any recommendation to mercy, shall be announced in open court. - 178 Verify source ↗
COURTS MARTIAL - 178. Where accused incapable of making defence
If, during a court-martial trial, the court considers the accused to be of unsound mind and incapable of making a defence, the court must so find.
Section 178. Where accused incapable of making defence Section 178(1) If, on the trial of a person by a court-martial, the court is of the opinion that the accused is of unsound mind and consequently incapable of making a defence, the court shall so find. Section 178(2) A finding under subsection (1) shall not have effect until it is promulgated in terms of section 183 of this Act. Section 178(3) If a finding under subsection (1) has been promulgated, it shall forthwith be reported to the President, and the accused shall be kept in custody during the President's pleasure in such place and manner as the President may direct, and pending the President's directions the accused shall be kept in service custody. Section 178(4) A finding under subsection (1) of this section shall not be a bar to further proceedings under this Act. - 179 Verify source ↗
COURTS MARTIAL - 179. Where an accused person is insane
If, at trial, it appears the accused committed the act but was insane at the time, the court must make a special finding; the court must report the case and keep the accused in custody pending the President's order; the President may detain, discharge or transfer the person and may impose supervision conditions; officers must report periodically (three years and then every two years) and others empowered by the President may make special reports at any time.
Section 179. Where an accused person is insane Section 179(1) Where a person is charged with an act or omission as an offence, and evidence is presented at the trial of that person for that offence, that the person was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is being tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission. Section 179(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct. Section 179(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody. Section 179(4) The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Cabinet Secretary for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President's order and thereafter at the expiration of each period of two years from the date of the last report. Section 179(5) On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit. Section 179(6) Notwithstanding subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Cabinet Secretary for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit. Section 179(7) The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he or she is detained or remains under supervision to either a prison or a mental hospital. - 180 Verify source ↗
COURTS MARTIAL - 180. Punishment of officers
Lists punishments that may be imposed on officers, including death, imprisonment, dismissal, reduction in rank, forfeiture of seniority, fines, reprimands, admonition, stoppages, and specified limits on fines and seniority.
Section 180. Punishment of officers Section 180(1)(a) death; Section 180(1)(b) imprisonment; Section 180(1)(c) dismissal from the Defence Forces; Section 180(1)(d) reduction in rank by one rank; Section 180(1)(e) forfeiture of up to twelve months seniority of rank; Section 180(1)(f) a fine not exceeding the equivalent of three months' pay; Section 180(1)(g) severe reprimand or reprimand; Section 180(1)(h) admonition; Section 180(1)(i) where the offence has occasioned any expense, loss or damage, stoppages, and in relation to an officer references in this Act to punishments are references to those punishments; or Section 180(1)(j) fine not exceeding three million shillings. Section 180(2) For the purposes of this Act, a punishment specified in any paragraph of the scale contained in subsection (1) shall be treated as less than the punishments specified in the preceding paragraphs, and greater than those specified in the succeeding paragraphs, of the scale. Section 180(3) Except where expressly provided for by this Act, not more than one punishment shall be awarded under this section for one offence. Section 180(4) Stoppages may be awarded either in addition to or without any other punishment. Section 180(5) A severe reprimand or a reprimand may be awarded in addition to forfeiture of seniority of rank or a fine. Section 180(6) If an officer is sentenced by a court-martial to imprisonment, the officer shall also be sentenced to dismissal from the Defence Forces and, if the court-martial fails to sentence the officer to such dismissal, the sentence of imprisonment shall not be invalid but shall be deemed to include a sentence of such dismissal. - 181 Verify source ↗
COURTS MARTIAL - 181. Punishment of service members
Section 181 lists punishments that a court-martial may impose on service members, including death, imprisonment, dismissal, active service punishment (not exceeding ninety days), rank reduction, forfeiture of seniority, fines, reprimands, admonition, and stoppages; it also sets rules about when additional punishments must be included.
Section 181. Punishment of service members Section 181(1)(a) death; Section 181(1)(b) imprisonment; Section 181(1)(c) dismissal from the Defence Forces; Section 181(1)(d) where the offender is on active service on the day of the sentence, active service punishment for a period not exceeding ninety days; Section 181(1)(e) in the case of a warrant officer or non-commissioned officer, reduction in rank to private or corresponding rank, or any less reduction in rank; Section 181(1)(f) in the case of a warrant officer or non-commissioned officer, forfeiture of seniority of rank for up to a maximum of twelve months; Section 181(1)(g) a fine not exceeding the equivalent of three months' pay; Section 181(1)(h) in the case of a warrant officer or non-commissioned officer, severe reprimand or reprimand; Section 181(1)(i) admonition; or Section 181(1)(j) where the offence has occasioned any expense, loss or damage, stoppages. Section 181(2) For the purposes of this Act, a punishment specified in any paragraph of the scale contained in subsection (1) shall be treated as less than the punishments specified in the preceding paragraphs, and greater than those specified in the succeeding paragraphs, of the scale. Section 181(3) Except where expressly provided for by this Act, not more than one punishment shall be awarded under this section for one offence. Section 181(4) If a service member is sentenced by a court-martial to imprisonment, the member shall also be sentenced to dismissal from the Defence Forces and, if the court-martial fails to sentence the member to such dismissal, the sentence of imprisonment shall not be invalid but shall be deemed to include a sentence of such dismissal. Section 181(5) If a warrant officer or non-commissioned officer is sentenced by a court- martial to imprisonment or active service punishment, that person shall also be sentenced to reduction in rank to private or corresponding rank and, if the court- martial fails to sentence that person to such reduction in rank, the sentence shall not be invalid but shall be deemed to include a sentence of such reduction in rank. Section 181(6) In the case of a warrant officer or non-commissioned officer, a severe reprimand or a reprimand may be awarded by a court-martial in addition to forfeiture of seniority of rank or a fine. Section 181(7) If an offender is on active service on the day of the sentence, a fine may be awarded in addition to active service punishment. Section 181(8) Stoppages may be awarded by a court-martial either with or without any other punishment. Section 181(9) Active service punishment shall consist of such duties or drills (in addition to those which the offender might be required to perform if not undergoing punishment) and such loss of privileges, as may be prescribed in the regulations, and may include confinement in such place and manner as may be prescribed and such personal restraint necessary to prevent the escape of the offender, as may be prescribed. - 182 Verify source ↗
COURTS MARTIAL - 182. Restitution or compensation for theft, etc.
Court-martial or specified authorities may order recovery, delivery, restoration, or payment of property or money to persons appearing to be owners when property unlawfully obtained is found or traced.
Section 182. Restitution or compensation for theft, etc. Section 182(1) This section applies if a person has been convicted by a court-martial, or having been dealt with summarily has been found guilty, of unlawfully obtaining any property, whether by stealing it, by receiving or retaining it knowing or having reason to believe it to have been stolen, by fraudulently misapplying it or by any other means. Section 182(2) If any of the property unlawfully obtained has been found in the possession of the offender, the court-martial may order that it be delivered or paid to the person appearing to be its owner. Section 182(3) If there has been found in the possession of the offender any property (other than money) appearing to have been obtained by the conversion or exchange of any of the property unlawfully obtained, the court-martial may order that it be delivered to the person appearing to be the owner of the property unlawfully obtained. Section 182(4) If money is found in the possession of the offender, whether or not it appears to have been obtained as aforesaid, or any pay or other money is due or is to become due to the offender, an order may be made that the person appearing to be the owner of the property unlawfully obtained shall be paid a specified sum out of that money as or towards compensation for the loss caused by the offence, in so far as not otherwise made good under this Act or by the recovery of the property unlawfully obtained. Section 182(5) If any of the property unlawfully obtained has been sold or given in pawn to some other person who did not then know that it had been unlawfully obtained, an order may be made that the other person, upon restoring to its owner the property sold or given as aforesaid, shall be paid a specified sum out of any money found in the possession of the offender (whether or not the money appears to be proceeds of the sale or giving in pawn) or out of any pay or other money due or to become due to the offender, as or towards compensation for the loss caused in consequence of the sale or giving in pawn. Section 182(6) If any of the property unlawfully obtained has been given in exchange to some other person who did not then know that it had been unlawfully obtained, an order may be made that the other person, upon restoring to its owner the property given as aforesaid shall have restored the property given in exchange for the property unlawfully obtained. Section 182(7) An order under this section may be made by the court-martial by whom the offender is convicted or by the commanding officer or appropriate superior authority making the finding of guilty, as the case may be, or by any reviewing authority. Section 182(8) In this section "appearing" means appearing to the court, officer or authority making the order. Section 182(9)(a) if a notice of Appeal to the High Court against the conviction is lodged, until either the notice is withdrawn or the appeal is determined or abandoned; or Section 182(9)(b) in any other case, until the expiration of the period prescribed under section 188 as the period within which such notice may be lodged. Section 182(10)(a) the order shall not take effect if the conviction is quashed on appeal; Section 182(10)(b) the High Court may by order annul or vary the order although the conviction is not quashed; Section 182(10)(c) the prescribed steps shall be taken for the safe custody, during the period which the operation of the order is suspended, of the property ordered to be restored or the money ordered to be paid. Section 182(11) Despite subsections (9) and (10), an order under this section shall not be suspended, so far as it relates to the restoration of property to the person appearing to be its owner, if the court, officer or authority making the order directs to the contrary in any case in which the title to the property appears to be undisputed. Section 182(12) An order under this section shall not bar the right of any person, other than the offender or a person claiming through the offender, to recover any property delivered or money paid under the order from the person to whom it is delivered or paid. - 183 Verify source ↗
COURTS MARTIAL - 183. Promulgation of finding or sentence
Any finding, sentence, determination or other thing required by the Act to be promulgated must be promulgated either by being communicated to the accused or in another manner prescribed.
Section 183. Promulgation of finding or sentence Section Any finding, sentence, determination or other thing required by this Act to be promulgated shall be promulgated either by being communicated to the accused or in such other manner as may be prescribed. - 184 Verify source ↗
COURTS MARTIAL - 184. Approval of Death sentence by President
A death sentence passed on a person on active service must not be carried out unless the President approves it.
Section 184. Approval of Death sentence by President Section A sentence of death passed on a person on active service shall not be carried out on that person unless the sentence is approved by the President. - 185 Verify source ↗
COURTS MARTIAL - 185. Custody of court-martial records and right of accused to copy
Persons tried by a court-martial (and, if deceased, their personal representatives) are entitled to obtain copies of the court-martial record from the Defence Court-martial Administrator within the prescribed period on payment of the prescribed fee; disclosure may be withheld for security and that decision can be reviewed by the Defence Council.
Section 185. Custody of court-martial records and right of accused to copy Section 185(1) The record of the proceedings of a court-martial shall be kept in the custody of the Defence Court-martial Administrator and the respective Service Court-martial Administrator for the prescribed period. Section 185(2) Subject to this section, a person tried by a court-martial shall be entitled to obtain from the Defence Court-martial Administrator on demand at any time within the prescribed period a copy of the record of the proceedings of the court, on payment of the prescribed fee. Section 185(3) If a person tried by a court-martial dies within the prescribed period, the personal representative of that person shall be entitled to obtain from the Defence Court-martial Administrator on demand at any time within the prescribed period a copy of the record of the proceedings of the court, on payment of the prescribed fee. Section 185(4) If a person applies for a copy of the record of any proceedings under subsection (2) or subsection (3), and the Service Commander certifies that it is requisite for reasons of security that the proceedings or a part thereof should not be disclosed, the applicant shall not be entitled to a copy of the proceedings or of that part and this decision may, upon application, be reviewed by the Defence Council. Section 185(5) In this section, "the prescribed period", in relation to any person tried by court-martial, means the period of six years beginning with the date of the acquittal or conviction.
Part V
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT
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LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 42. Rights and fundamental freedoms
People subject to the Act are entitled to the rights and fundamental freedoms in Chapter Four of the Constitution, except as limited by Article 24(5), this Act, or any other Act.
Section 42. Rights and fundamental freedoms Section All persons subject to this Act shall enjoy all rights and fundamental freedoms enshrined under Chapter Four of the Constitution unless limited to the extent specified in Article 24(5) of the Constitution, this Act or any other Act. - 43 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 43. Conditions for limitation of rights and fundamental freedoms
This Part permits the limitation or restriction of certain rights and fundamental freedoms of persons subject to this Act for listed purposes such as defence of sovereignty, protection of classified information, national security, Defence Forces safety and discipline, and public health and safety.
Section 43. Conditions for limitation of rights and fundamental freedoms Section 43(1) The purpose of this Part is to specifically limit or restrict certain rights or fundamental freedoms set out in Chapter Four of the Constitution, as contemplated in Article 24 of the Constitution. Section 43(2)(a) the defence and protection of the sovereignty and territorial integrity of the Republic of Kenya; Section 43(2)(b) the protection of classified information; Section 43(2)(c) the maintenance and preservation of national security; Section 43(2)(d) the security and safety of members of the Defence Forces; Section 43(2)(e) that the enjoyment of the rights and fundamental freedoms by any individual member of the Defence Forces does not prejudice the rights and fundamental freedoms of any other individual member of the Defence Forces; Section 43(2)(f) good order and service discipline; and Section 43(2)(g) public health and safety. Section 43(3)(a) ensure the protection of national security, public safety, public order, public health or morals, protection of the rights and freedoms of others; Section 43(3)(b) be necessary to achieve the mandate of the Defence Forces; Section 43(3)(c) operate without discrimination; and Section 43(3)(d) be exceptional and not impair the essence of the freedom being limited. - 44 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 44. Limitation to freedom of conscience, religion, thought, belief and opinion
The right to freedom of conscience, religion, thought, belief and opinion for a person to whom this Act applies may be limited only under the specific conditions listed in subsection (2).
Section 44. Limitation to freedom of conscience, religion, thought, belief and opinion Section 44(1) The right to freedom of conscience, religion, thought, belief and opinion set out in Article 32 of the Constitution shall be subject to limitations in respect of a person to whom this Act applies only under the conditions set out in subsection (2). Section 44(2)(a) in the interests of defence, security, public safety, public order, public morality or public health; Section 44(2)(b) for the purpose of protecting the rights and freedoms of other persons including the right to observe and practice religion, belief, opinion without the unsolicited intervention of members of another religion; or Section 44(2)(c) for good order and discipline in the Defence Forces. - 45 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 45. Limitation of freedom of expression
The right to freedom of expression for a person to whom this Act applies may be limited only under the specific conditions listed in subsection (2) (grounds such as national security, public safety, protection of reputation, confidential information, military restrictions, and protection of Defence Forces information).
Section 45. Limitation of freedom of expression Section 45(1) The right to freedom of expression set out in Article 33 of the Constitution shall be subject to limitation in respect of a person to whom this Act applies only under the conditions set out in subsection (2). Section 45(2)(a) in the interests of national defence, national security, public safety, public order, public morality or public health; Section 45(2)(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts martial or regulating the technical administration or the technical operation of telecommunication, posts, wireless broadcasting, communication, internet, satellite communication or television; Section 45(2)(c) to impose restrictions upon military personnel or upon persons in the service of the Defence Forces, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in the military; or Section 45(2)(d) for security and protection of information within the Defence Forces. - 46 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 46. Limitation of political rights
Section 46 prohibits forming, joining, participating in, campaigning for political causes or recruiting members for a political party, and serving as a member of Parliament, the Senate, a county assembly or any other political body; it exempts the right to register and vote and exempts reserve force members not called out.
Section 46. Limitation of political rights Section 46(1)(a) form, join, participate, campaign for any political cause or recruit members for a political party; or Section 46(1)(b) serve as a member of Parliament, the Senate, a county assembly or any other political body. Section 46(2) The provisions under subsection (1) shall not apply to that persons' right to register as a voter and to vote in an election, by-election or a referendum. Section 46(3) The provisions under subsection (1) shall not apply to persons who serve in the reserve force who are not called out. - 47 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 47. Limitation to freedom of movement and residence
Limits freedom of movement and residence when a person is lawfully held in service custody.
Section 47. Limitation to freedom of movement and residence Section when the person is lawfully held in service custody; - 48 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 48. Limitation of right to privacy
Permits searches, seizures, compelled disclosure of private family information, and interference with communications privacy in specified circumstances.
Section 48. Limitation of right to privacy Section 48(1)(a) that person's home or property within the barracks or any military establishment is to be searched; Section 48(1)(b) that person's possessions are to be seized; Section 48(1)(c) information relating to that person's family or private affairs is required to be revealed; or Section 48(1)(d) the privacy of a person's communications is to be investigated or otherwise interfered with. Section 48(2) In order for the limitation under subsection (1)(c) to apply, the person shall have committed a crime or be suspected to have committed a crime. - 49 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 49. Limitation of right to access to information
Access to information may be limited for classified material or information held by the Defence Forces, and the Cabinet Secretary may set security classification categories.
Section 49. Limitation of right to access to information Section 49(1) The right of access to information set out in Article 35(1) and (3) of the Constitution shall be subject to limitation in respect of classified information or information under the custody of the Defence Forces only under the circumstances set out under subsection (2). Section 49(2)(a) demands to furnish persons with classified information; Section 49(2)(b) disclosing and publicising information relating to covert operations of the Defence Forces; or Section 49(2)(c) disclosing and publicising information, the disclosure or publication of which would be prejudicial to national security. Section 49(3) For purposes of this section "classified information" means any information whose unauthorised disclosure would prejudice national security and includes information on the strategy, doctrine, capability, capacity and deployment. Section 49(4) The Cabinet Secretary may by regulations determine the categories of security classification. Section 49(5)(a) "top secret" which means information whose unauthorised disclosure would cause exceptionally grave damage to national security; Section 49(5)(b) "secret" which means information whose unauthorised disclosure would cause serious injury to national security; Section 49(5)(c) "confidential" which means information whose unauthorised disclosure would be prejudicial to the interest of the State; Section 49(5)(d) "restricted" which means information which requires security protection other than that determined to be top secret, secret or confidential. - 50 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 50. Limitation of the right to freedom of association
Persons to whom this Act applies are prohibited from joining or participating in the activities of certain associations that may be prescribed in regulations.
Section 50. Limitation of the right to freedom of association Section 50(1) Despite the right to freedom of association set out in Article 36 of the Constitution, a person to whom this Act applies shall not join or participate in the activities of an association that may be prescribed in regulations. Section 50(2) The limitation under subsection (1) shall not apply to joining or participation in the activities of professional associations. - 51 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 51. Limitation of right to assembly, demonstrate, picket and petition
Persons to whom the Act applies are prohibited from assembling, demonstrating, picketing or petitioning public authorities when that conduct is for maintaining military discipline.
Section 51. Limitation of right to assembly, demonstrate, picket and petition Section Despite the right to assemble, demonstrate, picket and petition public authorities set out in Article 37 of the Constitution, a person to whom this Act applies shall not assemble, demonstrate, picket or petition public authorities to the extent of maintaining military discipline. - 52 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 52. Limitation of right to labour relations
A person to whom the Act applies is prohibited from forming, joining, agitating for or participating in trade unions or from going on strike.
Section 52. Limitation of right to labour relations Section Despite the right to fair labour practices set out in Article 41 of the Constitution, a person to whom this Act applies shall not form, join, agitate or participate in the activities of trade unions or go on strike. - 53 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 53. Limitations of economic and social rights
Economic and social rights in Article 43, for a person to whom this Act applies, may be limited to the extent necessary for military training and operation as prescribed by regulations.
Section 53. Limitations of economic and social rights Section The economic and social rights set out in Article 43 of the Constitution, in respect of a person to whom this Act applies, may be limited to the extent necessary for military training and operation as shall be prescribed by regulations. - 54 Verify source ↗
LIMITATION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF PERSON SUBJECT TO THIS ACT - 54. Limitation of rights of an arrested person
The commanding officer must review his or her decision under subsection (3) after eight days until the accused is brought before a commanding officer or court-martial.
Section 54. Limitation of rights of an arrested person Section 54(1) The rights of an arrested person in Article 49 of the Constitution may be subject to limitation in respect of a person to whom this Act applies as set out in subsections (2) and (3). Section 54(2)(a) the holding of an arrested person jointly with the persons serving a sentence; Section 54(2)(b) the holding of an arrested person without bail; or Section 54(2)(c) the holding of an arrested person in custody notwithstanding that the offence is punishable by a fine only or imprisonment for a term not exceeding six months. Section 54(3) An accused person shall not be held in custody for more than eight days before he or she is arraigned before a commanding officer or a court-martial unless the commanding officer, for reasons to be recorded in writing, is satisfied that the continued arrest of the accused person is necessary. Section 54(4) The commanding officer shall review his or her decision in subsection (3) after the lapse of eight days until the accused person is brought before a commanding officer or a court-martial.
Part VI
SERVICE OFFENCES
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SERVICE OFFENCES - 100. Low flying
Section 100: Low flying while taking off or landing; or
Section 100. Low flying Section while taking off or landing; or - 101 Verify source ↗
SERVICE OFFENCES - 101. Annoyance by flying
Section title: "Annoyance by flying"
Section 101. Annoyance by flying - 102 Verify source ↗
SERVICE OFFENCES - 102. Irregular arrest and confinement
Creates an offence for a person who commits the section's offence; upon conviction by a court-martial the person is liable to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.
Section 102. Irregular arrest and confinement Section 102(1)(a) unnecessarily delays taking any steps that the person is responsible to take for investigating the allegations against that other person, or for having the allegations against that other person investigated by military police or tried by a court-martial; or Section 102(1)(a)(i) unnecessarily delays taking any steps that the person is responsible to take for investigating the allegations against that other person, or for having the allegations against that other person investigated by military police or tried by a court-martial; or Section 102(1)(a)(ii) fails to release, or effect the release of, that other person when responsible to do so; or Section 102(1)(b) at the time of the committal; or Section 102(1)(b)(i) at the time of the committal; or Section 102(1)(b)(ii) if it is not practicable so to do at the time of the committal, within twenty-four hours after the committal; or Section 102(1)(c) a prisoner is committed to the charge of that person; and Section 102(1)(c)(i) a prisoner is committed to the charge of that person; and Section 102(1)(c)(ii) a written statement containing, so far as known, the prisoner's name and alleged offence and the name and rank or other description of the person by whom the prisoner is alleged to have committed the offence; and Section 102(2) A person who commits an offence under this section shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 103 Verify source ↗
SERVICE OFFENCES - 103. Permitting escape, and unlawful release of prisoners
A person in charge of a prisoner must not willfully allow the prisoner to escape, must not without proper authority release the prisoner, and must not without reasonable excuse allow the prisoner to escape.
Section 103. Permitting escape, and unlawful release of prisoners Section 103(1)(a) willfully allows a prisoner who is within the person's charge, or whom it is the person's duty to guard, to escape; or Section 103(1)(b) without proper authority releases a prisoner who is within the person's charge; or Section 103(1)(c) without reasonable excuse, allows a prisoner who is within the person's charge, or whom it is the person's duty to guard, to escape, Section 103(2)(a) seven years, or any lesser punishment provided for by this Act, in case of an offence committed under subsection (1)(a); or Section 103(2)(b) two years or any lesser punishment provided for by this Act, in any other case. - 104 Verify source ↗
SERVICE OFFENCES - 104. Resistance to arrest
Refusing to obey an officer ordering arrest is an offence; on conviction by court-martial the person may be imprisoned for up to three years or receive a lesser punishment under this Act.
Section 104. Resistance to arrest Section 104(1)(a) refuses to obey any officer who orders the person be arrested; or Section 104(1)(b) any such officer; or Section 104(1)(b)(i) any such officer; or Section 104(1)(b)(ii) another person, whose duty it is to apprehend the person, or who has custody of the person, Section 104(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding three years or any lesser punishment provided for by this Act. - 105 Verify source ↗
SERVICE OFFENCES - 105. Escape from custody
Section 105. Escape from custody
Section 105. Escape from custody - 106 Verify source ↗
SERVICE OFFENCES - 106. Offences concerning courts martial
Subsection (1) lists specific wrongful acts before a court-martial (a)–(f); a person who commits any such offence is liable on conviction to imprisonment for up to two years or lesser punishment, and the court-martial where the conduct occurred may summarily order imprisonment up to 21 days for offences under (e) or (f).
Section 106. Offences concerning courts martial Section 106(1)(a) having been duly summoned or ordered to attend as a witness before a court-martial, fails to comply with the summons or order; Section 106(1)(b) refuses to swear an oath or affirm when duly required by a court-martial to do so; Section 106(1)(c) refuses to produce any document in the person's custody or under the person's control, and which a court-martial has lawfully required the person to produce; Section 106(1)(d) when as a witness, refuses to answer any question which a court- martial has lawfully required the person to answer; Section 106(1)(e) willfully insults or intimidates any person who is a member of a court-martial or a witness, or any other person whose duty it is to attend on or before the court, while that person is acting as a member thereof or is so attending, or willfully insults any person while that person is going to or returning from the proceedings of the court; or Section 106(1)(f) willfully interrupts the proceedings of a court-martial or otherwise misbehaves before the court. Section 106(2) A person who commits an offence under subsection (1) shall be liable, on conviction by court-martial, other than the court in relation to which the offence was committed, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. Section 106(3) Despite subsection (2), if an offence under subsection (2)(e) or (f) is committed in relation to a court-martial, that court-martial may, by order under the hand of the presiding officer, order the offender to be imprisoned for a term not exceeding twenty-one days, if the court-martial considers that it is expedient that the offender should be dealt with summarily by the court instead of being brought to trial before another court-martial. - 107 Verify source ↗
SERVICE OFFENCES - 107. False evidence
A person subject to the Act who, after being lawfully sworn as a witness or interpreter, gives a material statement in proceedings that they know is false or do not believe to be true commits an offence and on conviction by a court-martial can be imprisoned for up to seven years or given a lesser punishment under the Act.
Section 107. False evidence Section 107(1) A person subject to this Act who, having been lawfully sworn as a witness or as an interpreter in proceedings before a court-martial or before any board or person having power under this Act to administer oaths, makes a statement that is material in those proceedings, knowing it to be false, or not believing it to be true, commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding seven years or any lesser punishment provided for by this Act. Section 107(2) A person shall not be liable of an offence under this section solely upon the evidence of one witness as to the falsity of any statement alleged to be false. - 108 Verify source ↗
SERVICE OFFENCES - 108. Obstruction of police officer
Obstructing a police officer is an offence; a person convicted is liable to up to two years' imprisonment or a lesser punishment.
Section 108. Obstruction of police officer Section 108(1)(a) in executing a warrant for the arrest of a person subject to this Act who has committed or is suspected of having committed an offence triable by a civil court; or Section 108(1)(b) in lawfully arresting without a warrant a person subject to this Act. Section 108(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 109 Verify source ↗
SERVICE OFFENCES - 109. Prize offences by person in command
It is an offence for a person who commits the acts listed in subsection (1)(a)–(c) relating to prizes (failing to send papers, unlawfully arranging ransom agreements, or restoring/abandoning prizes), and on conviction by a court-martial the person may be imprisoned for up to five years.
Section 109. Prize offences by person in command Section 109(1)(a) having taken any aircraft or ship as prize, fails to send to the High Court or to some other prize court having jurisdiction in the case, all the aircraft's papers or ship's papers, as the case may be, found on board; Section 109(1)(b) unlawfully makes any agreement for the ransoming of any aircraft, ship or goods taken as prize; or Section 109(1)(c) under any agreement contemplated in paragraph (b), or otherwise by collusion, restores or abandons any aircraft, ship or goods taken as prize. Section 109(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding five years or any lesser punishment provided for by this Act. - 110 Verify source ↗
SERVICE OFFENCES - 110. Prize offences by others
It is an offence for a person to commit the acts listed in subsection (1), and on conviction by a court-martial the person may be imprisoned for up to five years or receive a lesser punishment provided by the Act.
Section 110. Prize offences by others Section 110(1)(a) strikes or otherwise ill-treats any person who is on board an aircraft or ship taken as prize, or who unlawfully takes from any such person anything in the person's possession; Section 110(1)(b) removes out of any aircraft or ship taken as prize, otherwise than for safe keeping or for the necessary use of the Defence Forces, any goods not previously adjudged by a prize court to be lawful prize; or Section 110(1)(c) breaks bulk on board any aircraft or ship taken as prize, or detained in exercise of any belligerent right or under any law, with intent to embezzle or fraudulently misapply anything therein. Section 110(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding five years or any lesser punishment provided for by this Act. - 111 Verify source ↗
SERVICE OFFENCES - 111. Political activities
Prohibits promoting, being a member of, or taking part in the activities of any political association.
Section 111. Political activities Section promotes or is a member of, or takes part in the activities of, any political association; - 112 Verify source ↗
SERVICE OFFENCES - 112. Making false statement on enlistment
A person subject to the Act who, when before a recruiting officer to be attested, knowingly gives a false answer in the attestation paper commits an offence and is liable on conviction by a court martial to imprisonment for a term not exceeding two years.
Section 112. Making false statement on enlistment Section A person who is subject to this Act commits an offence if that person, when before a recruiting officer for the purpose of being attested under this Act knowingly gives a false answer to any question contained in the attestation paper and put to the person by or by the direction of the recruiting officer, and shall be liable on conviction by a court martial to imprisonment for a term not exceeding two years. [Act No. 44 of 2016 , s. 18.] - 113 Verify source ↗
SERVICE OFFENCES - 113. False information
Makes it an offence to give a false answer to any question set out in any document required to be completed.
Section 113. False information Section gives a false answer to any question set out in any document required to be completed; or - 114 Verify source ↗
SERVICE OFFENCES - 114. Making false document
It is an offence for a person to make, sign, alter, suppress, deface, make away with, or fail to make an entry in specified documents so that the document or entry is to the person's knowledge false in a material particular.
Section 114. Making false document Section 114(1)(a) makes, signs or makes an entry in any report, return, pay list or certificate or other document, being a document or entry which is to the person's knowledge false in a material particular; Section 114(1)(b) alters any report, return, pay list or certificate or other document, or alters any entry therein, so that the document or entry is to the person's knowledge false in a material particular, or suppresses, defaces or makes away with any such document or entry which it is the person's duty to preserve or produce; or Section 114(1)(c) fails to make an entry in any such document so that the document is to the person's knowledge false in a material particular. Section 114(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding five years or any lesser punishment provided for by this Act. - 115 Verify source ↗
SERVICE OFFENCES - 115. False entry
Makes a false statement or entry in a document required for official purposes, or causes such a false statement or entry to be made or signed while aware of its falsity.
Section 115. False entry Section willfully or negligently makes a false statement or entry in a document made or signed by that person and required for official purposes or who, being aware of the falsity of a statement or entry in a document so required, orders the making or signing thereof; - 116 Verify source ↗
SERVICE OFFENCES - 116. Falsely obtaining or prolonging leave
A person subject to this Act who knowingly makes a false statement to military, police or administrative officers to obtain or prolong leave commits an offence and faces up to two years' imprisonment or a lesser punishment on conviction by court-martial.
Section 116. Falsely obtaining or prolonging leave Section A person subject to this Act who knowingly makes a false statement to any member or authority of the Defence Forces, or to a police officer, or to an administrative officer, for the purpose of obtaining or prolonging leave commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 117 Verify source ↗
SERVICE OFFENCES - 117. Inaccurate certification
A person who commits the offence described in subsection (1) is liable on conviction by a court-martial to imprisonment for a term not exceeding two years or any lesser punishment under this Act.
Section 117. Inaccurate certification Section 117(1)(a) a certificate relating to any aircraft of the Defence Forces or any aircraft material; or Section 117(1)(b) a certificate relating to any, matter affecting the sea going or fighting efficiency of any ship of the Defence Forces. Section 117(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. - 118 Verify source ↗
SERVICE OFFENCES - 118. Scandalous conduct of an officer
Any officer who behaves in a scandalous manner unbecoming an officer commits an offence and, on conviction by a court-martial, may be dismissed from the Defence Forces or subjected to a lesser punishment under this Act.
Section 118. Scandalous conduct of an officer Section Any officer who behaves in a scandalous manner, unbecoming the character of an officer, commits an offence and shall be, on conviction by a court-martial, dismissed from the Defence Forces or any other lesser punishment provided for under this Act. - 119 Verify source ↗
SERVICE OFFENCES - 119. Striking or ill-treatment of subordinate
Officers who strike or ill-treat a subordinate (of inferior rank or less seniority) commit an offence and may be punished on conviction by a court-martial.
Section 119. Striking or ill-treatment of subordinate Section Any officer, warrant officer or non-commissioned officer who knows or has reasonable cause to believe that a person subject to this Act is of inferior rank, or is of the same rank but of less seniority, strikes or otherwise ill-treats such a person, that officer commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding five years or any lesser punishment provided for by this Act. - 120 Verify source ↗
SERVICE OFFENCES - 120. Disgraceful conduct
A person subject to this Act who engages in cruel, indecent or unnatural disgraceful conduct commits an offence and is liable on conviction by a court-martial to imprisonment for up to ten years or a lesser punishment.
Section 120. Disgraceful conduct Section A person subject to this Act who engages in an act or disgraceful conduct of a cruel, indecent or unnatural kind commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding ten years or any lesser punishment provided for by this Act. - 121 Verify source ↗
SERVICE OFFENCES - 121. Conduct to prejudice of good order and discipline
Persons subject to this Act who commit acts, conduct or neglect prejudicial to good order and service discipline commit an offence punishable on conviction by up to two years' imprisonment or any lesser punishment under this Act.
Section 121. Conduct to prejudice of good order and discipline Section Any person subject to this Act who commits any act, conduct or neglect to the prejudice of good order and service discipline commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 122 Verify source ↗
SERVICE OFFENCES - 122. False accusation
Makes false accusations or false statements about another person, or willfully suppress material facts, and makes the offender liable on conviction by a court-martial to imprisonment for up to seven years or any lesser punishment under the Act.
Section 122. False accusation Section 122(1)(a) makes an accusation against any other person subject to this Act, knowing it to be false or not believing it to be true; or Section 122(1)(b) makes a statement affecting the character of another person subject to this Act, knowing it to be false or not believing it to be true; or Section 122(1)(b)(i) makes a statement affecting the character of another person subject to this Act, knowing it to be false or not believing it to be true; or Section 122(1)(b)(ii) willfully suppresses any material facts. Section 122(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding seven years or any lesser punishment provided for by this Act. - 123 Verify source ↗
SERVICE OFFENCES - 123. Negligent or deliberate discharge
Negligent or deliberate firing or discharge of ammunition is punishable by imprisonment for up to two years or any lesser punishment provided by the Act.
Section 123. Negligent or deliberate discharge Section for a term not exceeding two years or any lesser punishment provided for by this Act in the case of negligent firing or discharge ammunition; or - 124 Verify source ↗
SERVICE OFFENCES - 124. Corruption, economic crimes, etc
Creates offences for engaging in corruption, malpractices, or any act or omission while in the course of duty for selfish purposes or gains and for causing loss by dereliction of duty; the offence under subsection (1) is triable in the civil courts.
Section 124. Corruption, economic crimes, etc Section 124(1)(a) engages in corruption, malpractices, or any act or omission while in the course of duty for selfish purposes or gains; or Section 124(1)(b) causes loss by their dereliction of duty, Section 124(2) The offence under subsection (1) shall be triable in the civil courts. - 125 Verify source ↗
SERVICE OFFENCES - 125. Failure to take essential security measures
Persons responsible must take reasonable security measures to safeguard lives and health and must maintain safety of facilities; intentional failure may attract up to three years' imprisonment and negligent failure up to one year.
Section 125. Failure to take essential security measures Section 125(1)(a) take reasonable precautionary or security measures necessary to safeguard the lives and health of persons and animals; or Section 125(1)(b) maintain in good order or ensure the safety of the depots, installations, works, resources or other objects, for which he or she is responsible, thereby hazarding them, Section 125(2)(a) not exceeding three ears in the case of intentional failure; or Section 125(2)(b) not exceeding one year in the case of negligence. - 126 Verify source ↗
SERVICE OFFENCES - 126. Abuse of military authority
Persons subject to the Act must not abuse or improperly use military title, position, rank or commission to injure others' rights or to exempt persons from service; such conduct is an offence punishable by up to seven years' imprisonment (or up to ten years in wartime).
Section 126. Abuse of military authority Section 126(1) A person subject to this Act who abuses or improperly uses his or her title, position or rank in a manner that injures or adversely affects the right of any other person, commits an offence and shall be liable on conviction, by a court-martial, to imprisonment for a term not exceeding seven years or to a lesser punishment as may be provided for under this Act. Section 126(2) A person subject to this Act who, in abuse of his or her commission or of the military authority conferred upon him, exempts from service a person who is legally under a liability to perform it, commits an offence and shall be liable on conviction, by a court-martial, to imprisonment for a term not exceeding seven years or to a lesser punishment as may be provided for under this Act. Section 126(3) Where the offence is committed in time of emergency, general mobilization or war, the person shall on conviction by a court-martial be liable to imprisonment for a term not exceeding ten years or to a lesser punishment provided for in this Act. [Act No. 44 of 2016 , s. 22.] - 127 Verify source ↗
SERVICE OFFENCES - 127. Exceeding authority
Persons subject to the Act who exceed, abuse, or improperly assume authority conferred by commission, appointment, rank or title commit an offence and may be punished by up to seven years' imprisonment.
Section 127. Exceeding authority Section A person subject to this Act, who exceeds the authority he or she exercises by virtue of his or her commission, appointment, rank or title abuses such authority or improperly assumes authority not conferred by such commission, commits an offence and shall be liable on conviction, by a court-martial, to imprisonment for a term not exceeding seven years or to a lesser punishment as may be provided for under this Act. - 128 Verify source ↗
SERVICE OFFENCES - 128. Fraternization
Persons subject to the Act must not fraternize with other persons subject to the Act; doing so is an offence punishable on conviction by a court-martial, with imprisonment for a term not exceeding two years or any lesser punishment under the Act.
Section 128. Fraternization Section 128(1) A person subject to this Act who fraternizes with another person subject to this Act commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. Section 128(2)(a) an accused person is or was at the time of the commission of the offence, a commissioned officer; Section 128(2)(b) an accused person fraternized on terms of military equality with one or more service members in a certain manner prescribed by regulations; Section 128(2)(c) the accused person at the time of the fraternization, knew the person to be an enlisted member; Section 128(2)(d) the fraternization violated military customs and traditions; Section 128(2)(e) under the circumstances, the conduct of the accused resulted to prejudice of good order and discipline in the Defence Forces; and Section 128(2)(f) under the circumstances, the conduct of the accused was of such nature as to bring discredit upon the Defence Forces. - 129 Verify source ↗
SERVICE OFFENCES - 129. Offences relating to dual citizenship
It is an offence for a person to fail to disclose dual citizenship on enlistment or commissioning, or to acquire dual citizenship while in service; on conviction by a court-martial the person may be imprisoned for up to two years or given a lesser punishment under the Act.
Section 129. Offences relating to dual citizenship Section 129(1)(a) fails to disclose on enlistment or commissioning the fact that the person holds dual citizenship; or Section 129(1)(b) acquires dual citizenship while in service. Section 129(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. - 130 Verify source ↗
SERVICE OFFENCES - 130. Cheating in examination
A person subject to the Act who cheats before, at, during or in anticipation of an examination commits an offence and may be punished on conviction by a court-martial with imprisonment for a term not exceeding two years or a lesser punishment under the Act.
Section 130. Cheating in examination Section 130(1) A person subject to this Act who, before, at, during or in anticipation of an examination, cheats commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term, not exceeding two years or any lesser punishment provided for under this Act. Section 130(2)(a) by a fraudulent trick or device or in abuse of office or with intent to unjustly benefit any person, by which the person procures, a question paper or an answer script produced or intended to be used in an examination or graded exercise, or gives, allows to be given to another person, allows to be procured for another person or is in any way concerned in the unjust benefit, procurement or giving of such a paper or script; or Section 130(2)(b) by any false pretence with intent to cheat or unjustly benefit the person or any other person or for any other purpose whatsoever, buys, sells, procures or otherwise deals with a question paper or answer script intended for use or represented as genuine in respect of a particular examination or graded exercise of persons. Section 130(3) For the purposes of subsection (2), it is immaterial that the question paper or answer sheet concerned is proved not to be the one in question, or to be false, not genuine or not related to the examination. - 131 Verify source ↗
SERVICE OFFENCES - 131. Attempt to commit an offence
Attempting an offence may attract imprisonment for a term not exceeding seven years where the attempted offence is punishable by death or life imprisonment.
Section 131. Attempt to commit an offence Section imprisonment for a term not exceeding seven years, if the attempted offence is punishable by death or by imprisonment for life; or - 132 Verify source ↗
SERVICE OFFENCES - 132. Aiding, abetting, counselling or procuring
A person subject to this Act who aids, abets, counsels, procures (and in Part provisions, incites or connives) the commission by another person of an offence commits an offence and can be charged, tried and punished as a principal offender (including by court-martial for Part offences).
Section 132. Aiding, abetting, counselling or procuring Section 132(1) Where a person subject to this Act who aids, abets, counsels or procures the commission by another person of an offence to which this Act applies, that person commits an offence. Section 132(2) A person who commits an offence under subsection (1) may be charged, tried, including dealt with at a summary hearing and punished as a principal offender. Section 132(3) A person subject to this Act who aids, abets, incites, counsels, procures or connives at the commission by another person of an offence under any of the provisions of this Part commits an offence and shall be liable to be charged, tried, and on conviction by a court-martial, punished as a principal offender. - 133 Verify source ↗
SERVICE OFFENCES - 133. Civil offences
Section 133 sets out punishments for civil offences (including where treason or murder carry death or lesser punishments), states that when a civil court cannot sentence to imprisonment a convicted person is liable to a punishment (less than dismissal from the Defence Forces), and deems murder or manslaughter to have been committed where the act or omission causing death occurred.
Section 133. Civil offences Section 133(1)(a) if the civil offence is treason or murder, sentenced to death or any other lesser punishment provided for in this Act; and Section 133(1)(b) in any other case, liable to any punishment which a civil court could award for the civil offence if committed in Kenya being one or more of the punishments provided for by this Act, or such punishment, less than the maximum punishment which a civil court could so award, as is provided for by this Act. Section 133(2) Where a civil court cannot sentence to imprisonment, a person convicted shall be liable to suffer that punishment, less than dismissal from the Defence Forces as is provided for by this Act. Section 133(3) Where the civil offence is murder or manslaughter, the offence shall be deemed to have been committed at the place where the act or omission which caused the death occurred, irrespective of the place of death. [Act No. 18 of 2018 , Sch.] - 133A Verify source ↗
SERVICE OFFENCES - 133A. Prohibition of torture or cruel treatment
Members of the Defence Forces must not subject anyone to torture or cruel, inhuman or degrading treatment.
Section 133A. Prohibition of torture or cruel treatment Section 133A(1) A member of the Defence Forces shall not subject any person to torture, cruel, inhuman or degrading treatment. Section 133A(2) A member of the Defence Forces who subjects a person to torture, cruel, inhuman or degrading treatment commits an offence and is liable on conviction to a fine not exceeding ten million shillings or imprisonment for a term not exceeding twenty five years or to both. Section 133A(3) A member of the Defence Forces who subjects a person to cruel, inhuman and degrading treatment commits an offence and is liable on conviction to a fine not exceeding five million shillings or imprisonment for a term not exceeding fifteen years or to both. [Act No. 44 of 2016 , s. 23.] - 134 Verify source ↗
SERVICE OFFENCES - 134. Declaration of circumstances for release from Defence Forces
A person subject to this Act who is enrolled in the Defence Forces after having been released (for court-martial sentence or misconduct) without declaring those circumstances commits an offence and on conviction by a court-martial may be imprisoned for up to two years or receive lesser punishment.
Section 134. Declaration of circumstances for release from Defence Forces Section A person subject to this Act who, having been released from the Defence Forces by reason of a sentence of a court-martial or by reason of misconduct, has afterwards been enrolled in the Defence Forces without declaring the circumstances of that release commits an offence and on conviction by a court- martial, is liable to imprisonment for a term not exceeding two years or to lesser punishment. - 135 Verify source ↗
SERVICE OFFENCES - 135. Offence in relation to enrolment
A person subject to this Act who enrolls another knowing or reasonably believing that the enrolment will cause that person to commit an offence under this Act commits an offence and is liable on conviction by a court-martial to imprisonment for a term not exceeding two years or to lesser punishment.
Section 135. Offence in relation to enrolment Section A person subject to this Act who is concerned in the enrolment of any other person and who knows or has reasonable grounds to believe that by being enrolled that other person commits an offence under this Act commits an offence and on conviction by a court-martial is liable to imprisonment for a term not exceeding two years or to lesser punishment. - 136 Verify source ↗
SERVICE OFFENCES - 136. Offences in relation to inoculation, etc.
Persons subject to the Act must not willfully disobey orders to submit to inoculation, vaccination, immunity tests or treatment; doing so is an offence punishable on conviction by a court-martial by up to two years' imprisonment or lesser punishment under the Act.
Section 136. Offences in relation to inoculation, etc. Section A person subject to this Act who, on receiving an order to submit to inoculation, re-inoculation, vaccination, re-vaccination, other immunization procedures, immunity tests, blood examination or treatment against any infectious disease, except diseases precluded by any written law, willfully and without reasonable excuse disobeys that order commits an offence and on conviction by a court-martial is liable to imprisonment for a term not exceeding two years or to lesser punishment provided for under this Act. - 55 Verify source ↗
SERVICE OFFENCES - 55. Offences not triable by a court-martial
A court-martial must not try civilian persons subject to this Act charged with sexual offences or offences under domestic violence law when the offence is committed in Kenya; but if such an offence by a person subject to this Act is committed outside Kenya, that person shall be tried and sentenced by a court-martial.
Section 55. Offences not triable by a court-martial Section 55(1) A court-martial shall not try any civilian person who is subject to this Act and charged with any of the offences under the Sexual Offences Act (Cap. 63A) and the law relating to protection from domestic violence where that offence is committed in Kenya. Section 55(2) Notwithstanding subsection (1), where a person who is subject to this Act commits an offence referred to under subsection (1) outside Kenya, that person shall be tried and sentenced by a court-martial. - 56 Verify source ↗
SERVICE OFFENCES - 56. Trials in civil courts
Nothing in this Act or any order, disciplinary code, rules, regulations or manual shall affect the jurisdiction of any civil court to try a person for any offence triable by a civil court.
Section 56. Trials in civil courts Section Nothing in this Act or any order, disciplinary code, rules, regulations or manual shall affect the jurisdiction of any civil court to try a person for any offence triable by a civil court. - 57 Verify source ↗
SERVICE OFFENCES - 57. Persons guilty of an offence
Section 57 defines who is guilty of an offence: those who commit, aid, abet, counsel or procure an offence; persons who attempt an offence with intent; and persons sharing a common unlawful intention who assist one another.
Section 57. Persons guilty of an offence Section 57(1)(a) actually commits the offence; Section 57(1)(b) does or omits to do anything for the purpose of aiding any person to commit the offence; Section 57(1)(c) abets any person in committing the offence; or Section 57(1)(d) counsels or procures any person to commit the offence. Section 57(2) A person subject to this Act who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. Section 57(3) Where two or more persons form an intention in common to carry out an unlawful purpose and to, assist each other in carrying out the common purpose, each of them commits an offence and anyone who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is party to and guilty, upon conviction by a court-martial, of that offence. - 58 Verify source ↗
SERVICE OFFENCES - 58. Aiding the enemy
Section 58 defines various acts described as aiding the enemy and states that a person subject to the Act who negligently causes or allows enemy capture or destruction of Defence Forces' aircraft commits an offence; penalties include death or other punishments if committed with intent to assist the enemy, or life imprisonment or lesser punishment otherwise.
Section 58. Aiding the enemy Section 58(1)(a) abandons or delivers up any place or post which it is the person's duty to defend, or abandons the person's place of duty; Section 58(1)(b) induces any person to abandon or deliver up any place or post which it is that person's duty to defend, or induces any person to abandon that person's place of duty; Section 58(1)(c) does any act calculated to imperil the success of operations of the Defence Forces, or of any co-operating forces, or any part of the Defence Forces or of co-operating forces; Section 58(1)(d) having been captured by the enemy, serves with or aids the enemy in the prosecution of hostilities, or in the taking of measures calculated to influence morale; Section 58(1)(e) furnishes the enemy with arms or ammunition, or with supplies of any description, or with any other thing, whether similar to the foregoing or not; Section 58(1)(f) harbours or protects an enemy who is not a prisoner of war; Section 58(1)(g) fails to make known to the proper authorities any information received from an enemy; Section 58(1)(h) gives any false air signal, or alters or interferes with any air signal or any apparatus for giving an air signal; or Section 58(1)(i) when ordered by the person's superior officer, or otherwise under orders, to carry out any warlike operations in the air, fails to use the person's utmost exertions to carry such orders into effect. Section 58(2) A person subject to this Act who negligently causes or allows the capture, or destruction, by the enemy of any of the aircraft of the Defence Forces or of any co-operating forces commits an offence. Section 58(3)(a) to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or Section 58(3)(b) to life imprisonment or any lesser punishment provided for by this Act, in any other case. - 59 Verify source ↗
SERVICE OFFENCES - 59. Communication with enemy
Communication with the enemy is punishable: death or other punishment if committed with intent to assist the enemy; otherwise imprisonment for life or a lesser punishment.
Section 59. Communication with enemy Section 59(1)(a) to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or Section 59(1)(b) to imprisonment for life or any less punishment provided for by this Act, in any other case. Section 59(2)(a) the number, description, armament, equipment, disposition, movement or condition of the Defence Forces or any co-operating forces, or of any unit of the Defence Forces or any co-operating forces, or any of the vehicles, aircraft or ships of the Defence Forces or any co-operating forces; Section 59(2)(b) any operations or projected operations of the Defence Forces or of any co-operating forces, or of any unit thereof, or of any of their aircraft or ships; Section 59(2)(c) any code, cipher, call sign, password, countersign or frequency; Section 59(2)(d) any measures for the defence or fortification of any place on behalf of the Defence Forces or of any co-operating forces; Section 59(2)(e) the number, description or location of any prisoners of war; or Section 59(2)(f) weapons or munitions of war. - 60 Verify source ↗
SERVICE OFFENCES - 60. Spying
Section 60 defines when a person is deemed to be a spy: acting clandestinely or under false pretences to obtain intelligence in the Defence Forces' zone of operations with intent to communicate it to the enemy; it also clarifies that obtaining the information or communicating it is not essential.
Section 60. Spying Section 60(1)(a) in or about any place, vessel, aircraft, within the control or jurisdiction of the Defence Forces; Section 60(1)(b) in or about any shipyard, any manufacturing or industrial plant; or Section 60(1)(c) any other place or institution engaged in work in aid of the operations of war by the Defence Forces or elsewhere, Section 60(2) For purposes of this Act a person shall be deemed to be a spy if, acting clandestinely or on false pretences, the person obtains, or endeavors to obtain, intelligence in the zone of operations of the Defence Forces, with the intention of communicating it to the enemy. Section 60(3) For purposes of this section a person can be a spy only when, acting clandestinely, whether overtly or covertly or under false pretences, to obtain or seek to obtain information with the intent to convey it to a hostile party. Section 60(4) For purposes of this section, it is not essential that the accused obtain the information sought or that it be communicated. - 61 Verify source ↗
SERVICE OFFENCES - 61. Offences by service member or officer when in action
Creates several offences for service members or officers when in action, including failing to obey orders, improperly withdrawing, failing to pursue or consolidate, failing to assist friendly forces, and forsaking station; prescribes punishments varying by traitorous action, cowardice, or other cases.
Section 61. Offences by service member or officer when in action Section 61(1)(a) fails to obey orders issued by a person in command to carry out an operation of war or, on coming into contact with an enemy that it is the duty of the service member or officer to engage, does not bring his or her vessel, aircraft or other material into action; Section 61(1)(b) being in action, improperly withdraws from the action; Section 61(1)(c) improperly fails to pursue an enemy or to consolidate a position gained, Section 61(1)(d) improperly fails to relieve or assist a friendly force to the utmost of his or her power and ability, or Section 61(1)(e) when in action, improperly forsakes his or her station. Section 61(2)(a) if the officer or service member acted traitorously, to suffer death or any other lesser punishment provided for in this Act; Section 61(2)(b) if the officer or service member acted from cowardice, to imprisonment for life or lesser punishment; or Section 61(2)(c) in any other case a lesser punishment. - 62 Verify source ↗
SERVICE OFFENCES - 62. Offences by a person in command when in action
Persons in command who, during action, fail to perform duties such as bringing defence craft into action, surrendering defence assets when defendable, failing to pursue or assist, or improperly abandoning command commit offences.
Section 62. Offences by a person in command when in action Section 62(1)(a) fails to use the person's utmost exertions to bring into action any aircraft, ship or vehicle that it is the person's duty to bring into action; Section 62(1)(b) surrenders to the enemy any aircraft, ship, vehicle of the defence, any establishment or any part of an establishment of the Defence Forces, when it is capable of being successfully defended or destroyed; Section 62(1)(c) fails to pursue an enemy whom it is the person's duty to pursue, or to assist to the utmost of the person's ability any member of a friendly force whom it is the person's duty to assist; or Section 62(1)(d) in the course of any action by or against the enemy, improperly abandons his or her command. Section 62(2)(a) if the person acted traitorously, to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or Section 62(2)(b) to imprisonment for life or any lesser punishment provided for by this Act, in any other case. - 63 Verify source ↗
SERVICE OFFENCES - 63. Misconduct in action by others
Persons may suffer death or other punishment under this Act if the offence is committed with intent to assist the enemy.
Section 63. Misconduct in action by others Section to suffer death or any other punishment provided for by this Act if the offence is committed with intent to assist the enemy; or - 64 Verify source ↗
SERVICE OFFENCES - 64. Cowardice
It is an offence of cowardice to leave one's post, throw away arms, behave so as to show cowardice, induce others to commit cowardice, run away, or shamefully abandon, surrender or deliver up any command, unit, place, ship, or military property; a person convicted by a court-martial is liable to imprisonment for life or any lesser punishment provided by the Act.
Section 64. Cowardice Section 64(1)(a) leaves the post, position or other place where it is the person's duty to be; Section 64(1)(b) throws away the person's arms, ammunition or tools; Section 64(1)(c) otherwise behaves in such a manner as to show cowardice; Section 64(1)(d) induces other persons subject to this Act to commit an offence of cowardice under this section; Section 64(1)(e) runs away; or Section 64(1)(f) shamefully abandons, surrenders or delivers up any command, unit, place, or military property which it is his or her duty to defend under this section. Section 64(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for life or any lesser punishment provided for by this Act. Section 64(3)(a) that the accused was before or in the presence of the enemy; Section 64(3)(a)(i) that the accused was before or in the presence of the enemy; Section 64(3)(a)(ii) that the accused misbehaved by moving away; and Section 64(3)(a)(iii) that the accused intended to avoid actual or impending combat with the enemy by running away. Section 64(3)(b) that the accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property; Section 64(3)(b)(i) that the accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property; Section 64(3)(b)(ii) that without justification, the accused abandoned, surrendered; or Section 64(3)(b)(iii) delivered up that command, unit, place, ship, or military property. - 65 Verify source ↗
SERVICE OFFENCES - 65. Neglect of duty
A person subject to this Act who neglects or performs negligently any duty lawfully imposed commits an offence and is liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided by this Act.
Section 65. Neglect of duty Section A person subject to this Act who neglects to perform or performs negligently any duty lawfully imposed on that person commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 66 Verify source ↗
SERVICE OFFENCES - 66. Offences against morale
It is an offence for a person to spread reports about Defence Forces operations or, when before the enemy, use words that create despondency or unnecessary alarm; conviction may lead to imprisonment for life or lesser punishment.
Section 66. Offences against morale Section 66(1)(a) spreads, whether orally, in writing, by signal or otherwise, reports relating to operations of the Defence Forces or of any co-operating forces, or of any part of any of the Defence Forces or of any co-operating Defence Forces, being reports calculated to create despondency or unnecessary alarm; or Section 66(1)(b) when before the enemy, uses words calculated to create despondency or unnecessary alarm. Section 66(2) A person who commits an offence under the provisions of subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for life or any lesser punishment provided for by this Act. - 67 Verify source ↗
SERVICE OFFENCES - 67. Advocating governmental change by force
Advocating governmental change by force; publishing or circulating any writing, printing, or document in whatever form, including electronic form.
Section 67. Advocating governmental change by force Section publishing or circulating any writing, printing, or document in whatever form, including electronic form; - 68 Verify source ↗
SERVICE OFFENCES - 68. Being captured through disobedience or neglect, and failure to rejoin Defence Forces
A person who is captured by the enemy as a result of disobedience or willful neglect, or who fails to take reasonable steps to rejoin the Defence Forces (or discourages others from doing so), commits an offence and on conviction by a court-martial may be sentenced to life imprisonment or a lesser punishment.
Section 68. Being captured through disobedience or neglect, and failure to rejoin Defence Forces Section 68(1)(a) is captured by an enemy through disobedience of orders or willful neglect of the person's duty; Section 68(1)(b) fails to take any reasonable and available steps to rejoin the Defence Forces; or Section 68(1)(b)(i) fails to take any reasonable and available steps to rejoin the Defence Forces; or Section 68(1)(b)(ii) prevents or discourages any other person subject to this Act who has been captured by the enemy from taking any reasonable and available steps to rejoin the Defence Forces. Section 68(2) A person who commits an offence under the provisions of subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for life or any lesser punishment provided for by this Act. - 69 Verify source ↗
SERVICE OFFENCES - 69. Offences by or in relation to sentries, etc.
Lists acts by a person on guard duty (e.g., sleeping at/post, being drunk, leaving post without relief, using force, threatening force, being unfit or disorderly) that are offences and sets maximum punishments including life if on active service or up to five years otherwise.
Section 69. Offences by or in relation to sentries, etc. Section 69(1)(a) sleeps at the person's post; or Section 69(1)(a)(i) sleeps at the person's post; or Section 69(1)(a)(ii) is drunk; or Section 69(1)(a)(iii) leaves the person's post without having been regularly relieved or otherwise leaves any place where it is the person's duty to be; Section 69(1)(b) when not on duty at a post, is asleep at a time when the person is not allowed to be asleep; or Section 69(1)(c) strikes or otherwise uses force against a person on guard duty or watch, being a member of the Defence Forces or any co-operating forces or of any visiting force; or Section 69(1)(d) by the threat of force, compels any person contemplated in paragraph (c), to let any person pass. Section 69(2)(a) is unfit to be entrusted with any duty that the person may be called upon to perform; or Section 69(2)(b) behaves in a disorderly manner, or in a manner likely to bring discredit to the Defence Forces. Section 69(3)(a) is posted or ordered to patrol, or has adopted the position of sentry at a post or has undertaken the patrol; Section 69(3)(b) is a member of a guard or other party mounted or ordered to patrol, for the purpose of protecting any persons, premises or place, or of controlling access to or egress from any premises or place, or of regulating traffic by road or rail or on any inland navigation; or Section 69(3)(c) has been ordered to keep a specific watch. Section 69(4)(a) for life or any lesser punishment provided for by this Act, if the offence was committed on active service; or Section 69(4)(b) for not more than five years, in any other case. - 70 Verify source ↗
SERVICE OFFENCES - 70. Looting and pillaging
Persons subject to this Act commit an offence for taking, otherwise than for the public service, vehicles, equipment or stores abandoned by an enemy; such offenders face up to ten years' imprisonment on conviction by a court-martial.
Section 70. Looting and pillaging Section 70(1)(a) takes or steals any property from a person who has been killed, injured, captured or detained in the course of an action or operation of the Defence Forces or of any force co-operating with them; or Section 70(1)(b) steals any property that has been left exposed or unprotected in consequence of an action or operation of the Defence Forces or of any force co-operating with them; or Section 70(1)(c) takes any aircraft, ship, vehicle, equipment or stores abandoned by the enemy, other than for the public service; Section 70(1)(d) searches such a person with the intention of taking property from the person. Section 70(2)(a) an action or operation of the Defence Forces or of any force co-operating with them; or Section 70(2)(a)(i) an action or operation of the Defence Forces or of any force co-operating with them; or Section 70(2)(a)(ii) an event, or state of affairs, in relation to which such an action or operation is undertaken; or Section 70(2)(b) searches any place or thing with the intention of taking property of a description mentioned in paragraph (a). Section 70(3) A person who is subject to this Act commits an offence if that person takes otherwise than for the public service any vehicle, equipment or stores abandoned by an enemy. Section 70(4) A person who commits an offence under this section, shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding ten years or any lesser punishment provided for under this Act. - 71 Verify source ↗
SERVICE OFFENCES - 71. Offences against civil population
Persons subject to the Act commit an offence if they commit wrongful acts outside Kenya against persons or property of members of the civil population; on conviction by a court-martial they face imprisonment for up to two years or a lesser punishment.
Section 71. Offences against civil population Section 71(1) A person who is subject to this Act commits an offence if that person commits any wrongful act outside Kenya against the person or property of any member of the civil population. Section 71(2) A person who commits an offence under subsection (1), shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 72 Verify source ↗
SERVICE OFFENCES - 72. Mutiny
Section 72 is titled 'Mutiny' and describes acts constituting mutiny and related offences.
Section 72. Mutiny Section 72(1)(a) takes part in a mutiny involving the use of violence or the threat of the use of violence; or Section 72(1)(b) the refusal or avoidance of any duty or service against, or in connection with operations, against an enemy; or Section 72(1)(b)(i) the refusal or avoidance of any duty or service against, or in connection with operations, against an enemy; or Section 72(1)(b)(ii) the impeding of the performance of any such duty or service; or Section 72(1)(c) incites any person to take part in such a mutiny, whether actual or intended. Section 72(2)(a) to overthrow or resist lawful authority in the Defence Forces or any co-operating forces, or in any part of the Defence Forces or any co- operating forces; Section 72(2)(b) to disobey such authority in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service against, or in connection with operations against, the enemy; or Section 72(2)(c) to impede the performance of any duty or service in the Defence Forces or in any co-operating forces, or in any part of the Defence Forces or of any co-operating forces. Section 72(3)(a) to suffer death or any other punishment provided for by this Act if the offence committed falls under subsection (1)(a) and (b); or Section 72(3)(b) to imprisonment for life or any lesser punishment provided for by this Act, in case of an offence under subsection (1)(c). - 73 Verify source ↗
SERVICE OFFENCES - 73. Failure to suppress mutiny
It is an offence for a person to fail to use their utmost exertions to suppress or prevent a mutiny or to fail to report a mutiny without delay.
Section 73. Failure to suppress mutiny Section 73(1)(a) fails to use the person's utmost exertions to suppress or prevent a mutiny; or Section 73(1)(b) fails to report to a superior officer or any other appropriate authority without delay that the mutiny is taking place or is intended. Section 73(2)(a) to suffer death or any other punishment provided for by this Act if the offence was committed with intent to assist an enemy; or Section 73(2)(b) to imprisonment for life or any less punishment provided for by this Act, in any other case. - 74 Verify source ↗
SERVICE OFFENCES - 74. Desertion
Desertion: acts described include deserting oneself, persuading others to desert, leaving or failing to join the Defence Forces when duty requires, enlisting or entering while an officer or service member without proper resignation or discharge, absence without leave (including intent to avoid overseas service or service before the enemy), and absence without leave for more than ninety days; penalties include imprisonment up to two years in some cases and courts-martial may forfeit preceding service.
Section 74. Desertion Section 74(1)(a) deserts; or Section 74(1)(b) persuades or procures any person subject to this Act to desert. Section 74(2)(a) leaves the Defence Forces; or Section 74(2)(a)(i) leaves the Defence Forces; or Section 74(2)(a)(ii) fails to join or rejoin the Defence Forces when it is the person's duty to join or rejoin them; Section 74(2)(b) being an officer, enlists in or enters the Defence Forces without having resigned the person's commission; Section 74(2)(c) being a service member, enlists in or enters the Defence Forces without having been discharged from any previous enlistment; Section 74(2)(d) is absent without leave, with intent to avoid serving in any place outside Kenya, or to avoid service or any particular service when before an enemy; or Section 74(2)(e) is absent without leave for a continuous period of more than ninety days. Section 74(3)(a) the offence was committed under subsection (1)(a), the person was on active service or under orders for active service at the time when it was committed; or Section 74(3)(a)(i) the offence was committed under subsection (1)(a), the person was on active service or under orders for active service at the time when it was committed; or Section 74(3)(a)(ii) the offence was committed under subsection (1)(b) the person in relation to whom it was committed was on active service or under orders for active service at that time; or Section 74(3)(b) to imprisonment for not more than two years, in any other case. Section 74(4) In addition to, or without any other punishment, a court-martial that convicts an officer or service member of desertion; other than a reservist called out on permanent service, may direct that the whole or any part of any service preceding the period of desertion shall be forfeited. - 75 Verify source ↗
SERVICE OFFENCES - 75. Absence without leave
Being absent without leave, or persuading someone subject to the Act to be absent without leave, is an offence punishable on conviction by a court-martial by imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act.
Section 75. Absence without leave Section 75(1)(a) is absent without leave; or Section 75(1)(b) persuades or procures any person subject to this Act to be absent without leave. Section 75(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 76 Verify source ↗
SERVICE OFFENCES - 76. Assisting desertion or absence without leave
It is an offence for a person to knowingly assist someone subject to the Act to desert or be absent without leave; knowing of such desertion or absence a person must report it without delay and take reasonable steps to have the person apprehended.
Section 76. Assisting desertion or absence without leave Section 76(1)(a) knowingly assists any person who is subject to this Act to desert, or to be absent without leave; or Section 76(1)(b) knowing that any person subject to this Act has deserted or is absent without leave, or is attempting to desert or to be absent without leave, fails to report that fact without delay, or fails to take any reasonable steps to cause that person to be apprehended. Section 76(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. Section 76(3)(a) without authority, leaves his or her place of duty; Section 76(3)(b) without authority, is absent from his or her place of duty; or Section 76(3)(c) having been authorised to be absent from his or her place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorised. - 77 Verify source ↗
SERVICE OFFENCES - 77. Disobedience to standing orders
Persons subject to the Act who knowingly (or should reasonably know) contravene standing or routine orders commit an offence and, if convicted by a court-martial, may be imprisoned for up to two years or face a lesser punishment under the Act.
Section 77. Disobedience to standing orders Section 77(1) A person subject to this Act who contravenes, or refuses or fails to comply with, any provision of any standing or routine orders, being a provision that the person is aware of, or might reasonably be expected to be aware of, commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. Section 77(2) For the purposes of subsection (1), "standing or routine orders" means any order of a continuing nature, made for any formation or unit or body of service members, or for any command or other area, garrison or place, or for any ship train or aircraft. - 78 Verify source ↗
SERVICE OFFENCES - 78. Disobedience of particular orders
Persons subject to this Act commit an offence if they willfully disobey a lawful command sent or given directly to them; penalties vary (up to five years on active service, up to two years otherwise).
Section 78. Disobedience of particular orders Section 78(1) A person who is subject to this Act commits an offence if that person disobeys any lawful command given or sent directly to that person in such a manner as to show a willful defiance or neglect of authority. Section 78(2)(a) not exceeding five years or any lesser punishment provided for by this Act, if the offence was committed on active service; or Section 78(2)(b) for not more than two years or any lesser punishment provided for by this Act, in any other case. - 79 Verify source ↗
SERVICE OFFENCES - 79. Disobeying a lawful order
Persons subject to the Act who disobey a lawful command of a superior officer commit an offence and may be imprisoned for up to two years on conviction by a court-martial.
Section 79. Disobeying a lawful order Section A person subject to this Act who disobeys a lawful command of a superior officer, commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. - 80 Verify source ↗
SERVICE OFFENCES - 80. Issuing a manifestly unlawful order
Persons subject to the Act who issue a manifestly unlawful order commit an offence punishable on conviction by a court-martial by imprisonment for a term not exceeding five years.
Section 80. Issuing a manifestly unlawful order Section A person subject to this Act who issues a manifestly unlawful order commits an offence and shall, on conviction by a court-martial, be sentenced to a term not exceeding five years. - 81 Verify source ↗
SERVICE OFFENCES - 81. Failure to perform military duties
Persons subject to the Act commit an offence if, without reasonable or lawful excuse, they fail to attend any parade or other service duty or leave such parade or duty before being permitted to do so.
Section 81. Failure to perform military duties Section 81(1) A person who is subject to this Act commits an offence if that person without reasonable or lawful excuse, fails to attend for any parade or other service duty of any description or leaves any such parade or duty before being permitted to do so. Section 81(2) A person who commits an offence under subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. - 82 Verify source ↗
SERVICE OFFENCES - 82. Insubordinate behaviour
Prohibits striking or using violence against an officer and using threatening or insubordinate language or disrespectful behaviour toward an officer; prescribes penalties of up to five years if not on active service and not involving violence against a superior officer, or life (or lesser punishment) in other cases.
Section 82. Insubordinate behaviour Section 82(1)(a) strikes or otherwise uses violence against, or offers violence to that officer; or Section 82(1)(b) uses threatening or insubordinate language or displays disrespectful behavior to that officer. Section 82(2)(a) for a term not exceeding five years or any lesser punishment provided for by this Act, if the offence was not committed on active service and did not involve striking or otherwise using violence against, or offering violence to, a superior officer exercising authority as such; or Section 82(2)(b) for life or any lesser punishment provided for by this Act, in any other case. - 83 Verify source ↗
SERVICE OFFENCES - 83. Obstruction of officers, service member, etc.
A person who commits an offence under subsection (1) is liable on conviction by a court-martial to imprisonment for a term not exceeding two years or any lesser punishment provided by the Act.
Section 83. Obstruction of officers, service member, etc. Section 83(1)(a) an officer, service member, duty officer or officer of the patrol; or Section 83(1)(b) a person, whether subject to this Act or not, lawfully exercising authority under or on behalf of a military police, duty officer or officer of the patrol. Section 83(2) A person who commits an offence under subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 84 Verify source ↗
SERVICE OFFENCES - 84. Malingering
It is an offence for a person to feign sickness or otherwise act (or omit to act) with intent to become or keep oneself or another temporarily unfit for service.
Section 84. Malingering Section 84(1)(a) falsely pretends to be suffering from sickness or disability; or Section 84(1)(b) incurs a self-inflicted injury with the intent to become unfit or temporarily unfit for service, or with that intent, causes or allows another person to inflict such an injury on him or her; or Section 84(1)(c) injures another person subject to this Act at the instance of that other person, with the intent to render that other person unfit or temporarily unfit for service; or Section 84(1)(d) with intent to become or remain unfit or temporarily unfit for service, does or fails to do anything to produce, prolong or aggravate any sickness or disability, whether at the time of the act or omission the person is in hospital or not. Section 84(2) A person who commits an offence under subsection (1) shall be liable, upon conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 85 Verify source ↗
SERVICE OFFENCES - 85. Unfitness or misconduct through alcohol or drugs
It is an offence for a person to be unfit for duty or to behave disorderly (including acts or words) through drugs; exceptions apply for medical/advised or medicinal use; penalty up to two years' imprisonment.
Section 85. Unfitness or misconduct through alcohol or drugs Section 85(1)(a) that person is unfit to be entrusted with his or her duty or any other duty which he or she might reasonably be expected to be called upon to perform; or Section 85(1)(b) that person's behavior is disorderly or likely to bring discredit to the Defence Forces. Section 85(2)(a) the drug was taken or administered on medical advice and the person complied with any directions given as part of that advice; Section 85(2)(b) the drug was taken or administered for a medicinal purpose, and the person had no reason to believe that the drug might impair his or her ability to carry out the duties mentioned in subsection (1)(a) or as the case may be, result in his behaving in a way mentioned in subsection (1)(b). Section 85(3)(a) "drug" includes any intoxicant other than alcohol; Section 85(3)(b) "behavior" includes an act, sign or anything said by that person. Section 85(4) A person guilty of an offence under this section is liable to imprisonment, upon conviction, for a term not exceeding two years or to any lesser punishment provided for by this Act. - 86 Verify source ↗
SERVICE OFFENCES - 86. Quarrelling, fighting and threatening behaviour
Persons must not fight, threaten or quarrel with another person, nor use threatening, abusive, insulting or provocative words or behaviour intended to provoke or cause disturbance.
Section 86. Quarrelling, fighting and threatening behaviour Section 86(1)(a) fights, threatens or quarrels with any other person whether subject to this Act or not; or Section 86(1)(b) uses threatening, abusive, insulting or provocative words or behaviour with the intent to provoke or cause disturbance, Section 86(2) In this section "behaviour" includes acts, signals or anything said by that person. - 87 Verify source ↗
SERVICE OFFENCES - 87. Offences concerning public or non-public property
Prohibits stealing, receiving stolen public or non-public property, willful damage (including by fire through neglect), and sets penalty up to seven years' imprisonment on conviction by court-martial.
Section 87. Offences concerning public or non-public property Section 87(1)(a) steals or fraudulently misapplies, misappropriates any public or non- public property, or is concerned in or connives at the stealing or fraudulent misapplication of that property; Section 87(1)(b) receives or retains any public or non-public property, knowing or having reason to believe it to have been stolen or to have been fraudulently misapplied or misappropriated; Section 87(1)(c) willfully damages, or is involved in the willful damage of, any public or non-public property; or Section 87(1)(d) by willful neglect causes damage by fire to any public or non-public property. Section 87(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding seven years or any lesser punishment provided for by this Act. - 88 Verify source ↗
SERVICE OFFENCES - 88. Offences concerning property of persons subject to Act
Offences: stealing or fraudulently misapplying property of a person subject to the Act; receiving or retaining property believed to be stolen or fraudulently misapplied; willfully damaging such property. Penalty on conviction by court-martial: imprisonment for a term not exceeding two years or any lesser punishment under the Act.
Section 88. Offences concerning property of persons subject to Act Section 88(1)(a) steals or fraudulently misapplies any property belonging to a person subject to this Act, or is concerned in or connives at the stealing or fraudulent misapplication of any such property; Section 88(1)(b) receives or retains any property, knowing or having reason to believe it to have been stolen or to have been fraudulently misapplied; or Section 88(1)(c) willfully damages, or is concerned in the willful damage of, any property. Section 88(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act. - 89 Verify source ↗
SERVICE OFFENCES - 89. Damage to or loss of property
The section prohibits persons from doing acts (including omissions) that cause damage to or loss of public, non-public, or another person's property; liability depends on intent, recklessness or negligence; defined terms include "act", "causing", "loss", and "property"; on conviction by a court-martial the person may be imprisoned for a term not exceeding fifteen years or to any lesser punishment under this Act.
Section 89. Damage to or loss of property Section 89(1)(a) does an act that causes damage to or the loss of any public, non- public property or any property belonging to another person subject to this Act; and Section 89(1)(b) intends to cause damage to or the loss of any such property, and there is no lawful excuse for his or her act; or Section 89(1)(b)(i) intends to cause damage to or the loss of any such property, and there is no lawful excuse for his or her act; or Section 89(1)(b)(ii) is reckless as to whether he or she causes damage to or the loss of the property. Section 89(2)(a) negligently, does an act that causes damage to or the loss of any public or non-public property; or Section 89(2)(b) is reckless as to whether he causes damage to or the loss of the property; or Section 89(2)(b)(i) is reckless as to whether he causes damage to or the loss of the property; or Section 89(2)(b)(ii) is negligent. Section 89(3)(a) "act" includes an omission and references to the doing of an act are to be read accordingly; Section 89(3)(b) references to "causing" include allowing; Section 89(3)(c) "loss" includes temporary loss; Section 89(3)(d) "property" means property of a tangible nature, and references to public property, non-public property, or property belonging to a person subject to this Act are to be read accordingly. Section 89(4) A person who commits an offence under this section is liable to upon conviction by a court-martial, to imprisonment for a term not exceeding fifteen years or to any lesser punishment provided for under this Act. - 90 Verify source ↗
SERVICE OFFENCES - 90. Causing fire
If a person acted willfully in causing fire, they are liable to imprisonment for life or to lesser punishment.
Section 90. Causing fire Section if the person acted willfully, is liable to imprisonment for life or to lesser punishment; or - 91 Verify source ↗
SERVICE OFFENCES - 91. Stealing
Defines stealing and conversion as offences and prescribes imprisonment: up to 14 years where the offender was entrusted with custody, control or distribution; otherwise up to 7 years.
Section 91. Stealing Section 91(1)(a) if by reason of the person's rank, appointment or employment or as a result of any lawful command the person, at the time of the commission of the offence, was entrusted with the custody, control or distribution of the thing stolen, is liable to imprisonment for a term not exceeding fourteen years or to lesser punishment; or Section 91(1)(b) is liable to imprisonment for a term not exceeding seven years or to lesser punishment. Section 91(2) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, would be deemed to have stolen that thing or property. Section 91(3)(a) an intent permanently to deprive the general or special owner of the thing of it; Section 91(3)(b) an intent to use the thing as a pledge or security; Section 91(3)(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; Section 91(3)(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; Section 91(3)(e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he or she may intend afterwards to repay the amount to the owner. Section 91(4) For the purposes of this section "special owner" includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question. Section 91(5) When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it, and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of it. Section 91(6) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered. Section 91(7) A person shall not be deemed to have taken a thing unless he or she moves the thing or causes it to move. - 92 Verify source ↗
SERVICE OFFENCES - 92. Receiving property
Any person subject to the Act who knowingly receives or retains property obtained by a service offence commits an offence and, if convicted by a court-martial, is liable to imprisonment for a term not exceeding seven years or to lesser punishment.
Section 92. Receiving property Section Any person who is subject to this Act who receives or retains in his or her possession any property obtained by the commission of any service offence, knowing the property to have been so obtained, commits an offence and on conviction by a court-martial is liable to imprisonment for a term not exceeding seven years or to lesser punishment. - 93 Verify source ↗
SERVICE OFFENCES - 93. Destruction of property etc.
Section willfully destroys, improperly sells, or wastefully expends any non-public or public property or property of any forces cooperating with the Defence Forces.
Section 93. Destruction of property etc. Section willfully destroys or improperly sells or wastefully expends any non-public or public property or property of any forces cooperating with the Defence Forces; - 94 Verify source ↗
SERVICE OFFENCES - 94. Loss or hazarding of aircraft, ship or vehicle
Offence concerning loss or hazarding of an aircraft, ship or vehicle with punishment including life or any lesser punishment where the person acted willfully or with willful neglect.
Section 94. Loss or hazarding of aircraft, ship or vehicle Section life or any lesser punishment provided for by this Act, if the person acted willfully or with willful neglect; or - 95 Verify source ↗
SERVICE OFFENCES - 95. Improper carriage of goods
Prohibits receiving or permitting to be received on board an aircraft, ship or vehicle any goods or merchandise intended for disposal or delivery by way of trade or business, other than merchandise received in the course of salvage.
Section 95. Improper carriage of goods Section receives or permits to be received on board the aircraft, ship or vehicle any goods or merchandise intended for disposal or delivery by way of trade or business (whether on own account or on account of any other person), not being merchandise received in the course of salvage; or - 96 Verify source ↗
SERVICE OFFENCES - 96. Miscellaneous Offences relating to property
A person who loses, negligently damages, misuses, neglects care of, or disposes of certain public or service property commits an offence and on conviction by a court-martial is liable to imprisonment for up to two years or a lesser punishment.
Section 96. Miscellaneous Offences relating to property Section 96(1)(a) loses, or by negligence damages any public property or non-public property of which the person has the charge or which has been entrusted to the person's care, or which forms part of property of which the person has the charge or which has been entrusted to the person's care, or any service decoration granted to the person; Section 96(1)(b) loses, or by negligence damages any clothing, arms, ammunition or other equipment issued to the person for use for the purposes of the service; or Section 96(1)(c) by negligence causes damage by fire to any public property; or Section 96(1)(d) fails to take proper care of any animal or bird of which the person has the charge and which is used in the public service; or Section 96(1)(e) pawns, sells, destroys or otherwise makes away with any service decoration granted to the person or any clothing, arms, ammunition or other equipment issued to the person for use for service purposes, Section 96(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. [Act No. 44 of 2016 , s. 17.] - 97 Verify source ↗
SERVICE OFFENCES - 97. Billeting offences
It is an offence for a person to commit any of the acts listed in subsection (1); on conviction by a court-martial the person is liable to imprisonment for up to two years or any lesser punishment provided by the Act.
Section 97. Billeting offences Section 97(1)(a) obtains billets, or orders or procures another person to obtain them, knowing that no billeting order is in force authorising the person to demand those billets or that the person is otherwise not authorised to demand them; Section 97(1)(b) takes, agrees to take or demands from a person on whom that person or any other person or any vehicle is or is to be billeted under a billeting order any money or thing as consideration for not requiring, or for ceasing to require, accommodation for himself or herself or the said other person or standing room for the vehicle; or Section 97(1)(c) commits any wrongful act against the person or property of the occupier of premises in which the person is billeted under a billeting order or of any other person who is in those premises, or against any other property in those premises, or willfully or by willful neglect damages those premises or any such property as aforesaid. Section 97(2) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for by this Act. - 98 Verify source ↗
SERVICE OFFENCES - 98. Offences in relation to requisition of vehicles
Makes it an offence to improperly requisition, take possession of, or demand payment related to vehicles (and certain other things) without an authorising requisitioning order.
Section 98. Offences in relation to requisition of vehicles Section 98(1)(a) gives directions for the provision of a vehicle, or orders or procures another person to give them, knowing that no requisitioning order is in force authorising the person to give direction for the provision of that vehicle and that the person is not otherwise authorised to give such directions; Section 98(1)(b) in purported exercise of powers conferred by a requisitioning order, takes or orders or procures any other person to take possession of a vehicle, knowing that no requisitioning order is in force under which the taking possession of the vehicle could be authorised or that the taking possession thereof is otherwise not authorised under such an order; or Section 98(1)(c) takes or agrees to take, or demands, from a person any money or thing as consideration for directions, or any particular directions, for the provision of a vehicle not being given, or for possession of a vehicle not being taken or not being retained, under a requisitioning order. Section 98(2) Subsection (1) applies in relation to aircraft, ships, boats, trains, railway rolling stock, horses, mules, donkeys and camels, food, forage and stores within the meaning of Part XIII, as it applies in relation to vehicles. Section 98(3) A person who commits an offence under subsection (1) shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding five years or any lesser punishment provided for by this Act. - 99 Verify source ↗
SERVICE OFFENCES - 99. Dangerous flying
Dangerous flying is subject to a penalty of a term not exceeding two years where the person has not acted willfully or with willful neglect.
Section 99. Dangerous flying Section a term not exceeding two years, if the person has not acted willfully or with willful neglect; or
Part VII
ARREST OF PERSONS SUBJECT TO THE ACT
- 137 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 137. Power to arrest offenders
Subject to section 139, a member of the military police may arrest any person who is subject to this Act and suspected of committing an offence under this Act.
Section 137. Power to arrest offenders Section Subject to section 139 , a member of the military police may arrest any person who is subject to this Act, suspected to have committed an offence under this Act. - 138 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 138. Search by other persons upon arrest
A member of the Defence Forces who is exercising a power of arrest may search the arrested person on reasonable grounds.
Section 138. Search by other persons upon arrest Section A member of the Defence Forces who is exercising a power of arrest, may search the arrested person on reasonable grounds. - 139 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 139. Conditions for an arrest
Section 139 sets who may arrest whom under the Act: officers may be arrested by superior officers (or any officer if in a quarrel or disorder); service members or cadets may be arrested by officers, warrant officers or non-commissioned officers but only by a person of superior rank; military police may arrest officers or service members (and may arrest service members of any rank); and arrests under this section may be effected personally or by ordering another to arrest.
Section 139. Conditions for an arrest Section 139(1) A person subject to this Act who is found committing an offence under this Act, or is alleged to have committed or is reasonably suspected of having committed an offence under this Act, may be arrested without warrant in accordance with this section. Section 139(2) An officer may be arrested by an officer of superior rank, or, if engaged in a quarrel or disorder, by an officer of any rank. Section 139(3) A service member or cadet may be arrested by an officer, a warrant officer or a non-commissioned officer, but shall be arrested only by a person of superior rank. Section 139(4) A member of the military police may arrest any officer or service member, but an officer shall be arrested only on the order of another officer in accordance with subsection (2). Section 139(5) A member of the military police may arrest a service member of any rank. Section 139(6) The power of arrest given by this section may be exercised either personally, or by ordering the arrest of the person to be arrested or by giving orders for that person's arrest. - 140 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 140. Provisions for avoiding delay after arrest
Commanding officers must report and may hold accused persons under specified conditions; reports must be made to the Service Commander and, if proceedings have not begun after 42 days, the commanding officer must hold the accused under open arrest.
Section 140. Provisions for avoiding delay after arrest Section 140(1) The allegations against a person arrested under sections 137 or 141 shall be investigated without unnecessary delay, and as soon as practicable thereafter either proceedings shall be instituted to deal with the allegations or the person shall be released from arrest. Section 140(2)(a) a special report on the necessity for further delay shall be made by the person's commanding officer to the Service Commander in the prescribed manner; and Section 140(2)(b) a similar report shall be made to the Service Commander in the prescribed manner every eight days until a court-martial sits or the offence is dealt with summarily or the person is released from arrest. Section 140(3) Where an accused person is on active service, subsection (2) shall not apply except so far as is reasonably practicable, having regard to the exigencies of active service. Section 140(4) Notwithstanding the extensions granted under subsection (2), circumstances under subsection (3) or limitation of rights of an arrested person provided for under section 54 , a person shall not, at any given time, whether in active service or not, be held in custody for a period exceeding forty two days in aggregate. Section 140(5) Where the summary disciplinary proceeding have not commenced or the court-martial has not been convened after the expiry of forty two days, the commanding officer shall hold the accused person under open arrest on such conditions as the commanding officer may determine. - 141 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 141. Power to arrest deserter or an absentee
Section 141 allows a police officer or, if none is available, any person to arrest someone reasonably suspected of being an officer or service member who has deserted or is absent without leave; certain authorised persons may issue warrants; persons arrested and brought before a Magistrates' Court under this or related sections are not entitled to bail.
Section 141. Power to arrest deserter or an absentee Section 141(1) A police officer may arrest any person whom the police officer has reasonable cause to suspect of being an officer or service member who has deserted or is absent without leave. Section 141(2) If a police officer is not available, any person may arrest another person whom the first person has reasonable cause to suspect of being an officer or service member who has deserted or is absent without leave. Section 141(3) Any person who has the authority to issue a warrant for the arrest of a person suspected of committing or having committed a criminal offence, who is satisfied by evidence on oath that there is an officer or service member who has, or is reasonably suspected of having, deserted or is absent from duty without leave within the authorised person's jurisdiction, may issue a warrant authorising that person's arrest. Section 141(4) Any person who is arrested under this section shall as soon as is reasonably practicable be brought before a Magistrates' Court. Section 141(5) Despite provisions of any other written law, a person who has been arrested and brought before a Magistrates' Court under this section or under sections 142 or 143 shall not be entitled to bail. - 142 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 142. Proceedings before civil court where a suspected deserter or an absentee is arrested and arraigned in court
When a person brought before a Magistrate's Court is alleged to be a deserter or absent without leave, the Magistrate's Court may (if the person is in custody for another cause) either deliver the person into service custody, commit them to a prison or similar place for a period reasonably necessary to enable delivery into service custody (or until so delivered), or discharge the accused unless in custody for another reason; the Court may extend time fixed under subsection (2) when reasonably necessary.
Section 142. Proceedings before civil court where a suspected deserter or an absentee is arrested and arraigned in court Section 142(1) This section applies when a person, who is brought before a Magistrate's Court, is alleged to be an officer or service member or a member of the constabulary who has deserted or is absent without leave. Section 142(2) If a person brought before the Magistrate's Court as contemplated in subsection (1) is simultaneously in custody for some other cause, the Magistrate's Court may act in accordance with subsection (3) or (4), as applicable. Section 142(3)(a) cause the person to be delivered into service custody in such manner as the Magistrates' Court considers fit; or Section 142(3)(b) commit the person to a prison, police station or other place provided for the confinement of persons in custody, for a period that the Magistrates' Court may consider reasonably necessary for the purpose of enabling that person to be delivered into service custody or until delivered into service custody. Section 142(4)(a) the accused is subject to this Act; and Section 142(4)(a)(i) the accused is subject to this Act; and Section 142(4)(a)(ii) there is sufficient evidence to justify the accused being tried under this Act for the offence of desertion or absence without leave; or Section 142(4)(b) discharge the accused, unless the accused is in custody for another reason. Section 142(5) The time fixed by the Magistrates' Court under subsection (2) may be extended from time to time if it appears to the Magistrates' Court reasonably necessary to do so for any legitimate cause under this Act. Section 142(6) The provisions of the Criminal Procedure Code ( Cap. 75 ) relating to the constitution and procedure of Magistrates' Courts, powers of adjournment and remand of persons accused, and relating to evidence and the issue and enforcement of summonses or warrants to secure the attendance of witnesses, shall apply to proceedings under this section. [Act No. 44 of 2016 , s. 24.] - 143 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 143. Deserter or absentee surrendering to police
If a deserter or absentee surrenders to a police officer away from a station, the police officer must take that person to a police station.
Section 143. Deserter or absentee surrendering to police Section 143(1) If an officer, service member or a member of the constabulary who has deserted or is absent without leave, surrenders to a police officer elsewhere than at a police station, the police officer shall bring that person to a police station. Section 143(2)(a) cause the person to be delivered into service custody without being brought before a Magistrates' Court; or Section 143(2)(b) bring the person before a Magistrates' Court. - 144 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 144. Certificate of arrest or surrender of deserter or absentee
When a Magistrates' Court deals with a person under section 142 and the person is delivered into service custody, the court must hand over a prescribed certificate signed by a magistrate; if a person is delivered into service custody without being brought before a court under section 143 or other lawful power, the police officer who causes delivery must hand over a prescribed certificate signed by that officer.
Section 144. Certificate of arrest or surrender of deserter or absentee Section 144(1) If a Magistrates' Court deals with a person under section 142 , when that person is delivered into service custody, there shall be handed over with the person, a certificate in the prescribed form, signed by a magistrate, containing particulars of the arrest or surrender and of the proceedings before the court. Section 144(2) If a person is delivered into service custody without being brought before a court under section 143 , or under any other lawful power, there shall be handed over with the person a certificate, in the prescribed form, signed by the police officer who causes the person to be delivered into service custody, containing the particulars of the person's surrender. Section 144(3)(a) a document, purporting to be a certificate under subsection (1) or subsection (2) of this section, or under the corresponding provisions of any service law other than this Act, and to be signed as required, shall be evidence of the matter stated in the document; and Section 144(3)(b) if the proceedings are against a person who has been taken into service custody on arrest or surrender, a certificate purporting to be signed by a military police or any corresponding officer of the forces of another country, or by any other officer in charge of the guard-room or other place where that person was confined on being taken into custody, stating the fact, date, time and place of arrest or surrender, shall be evidence of the matters stated in the certificate. - 145 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 145. Superintendent of prison to receive deserters and absentees
The superintendent or person in charge of a civil prison, police station or other place of custody must receive any officer, service member or constabulary member committed by a Magistrates' Court for desertion or absence without leave and detain them until delivered into service custody per the court's directions.
Section 145. Superintendent of prison to receive deserters and absentees Section It shall be the duty of the superintendent or other person in charge of a civil prison, or the person in charge of any police station or other place provided for the confinement of persons in custody, to receive any person duly committed to that prison, police station or place by a Magistrates' Court as being an officer, service member or member of the constabulary who has deserted or is absent without leave, and to detain that person until delivered into service custody in accordance with the directions of the court. - 146 Verify source ↗
ARREST OF PERSONS SUBJECT TO THE ACT - 146. Temporary reception of person in service custody into civil custody
Civil custody must receive and detain certain persons from service custody for up to fifteen days on a written order; magistrates may remand such persons to civil custody for up to twenty-one days and may return them to service custody or discharge them by endorsement on the warrant.
Section 146. Temporary reception of person in service custody into civil custody Section 146(1) If a person who is charged with, or with a view to being charged with, an offence under Part VI is in service custody, it shall be the duty of the superintendent or other person in charge of a civil prison, or the person having charge of any police station or other place provided for the confinement of persons in custody, to receive and detain that person for a period not exceeding fifteen days, upon receiving a written order, in the form prescribed in the Third Schedule, and signed by the person's commanding officer. Section 146(2) Despite subsection (1), if a person who is charged with an offence under Part VI or the corresponding provisions of any service law other than this Act is in service custody, a magistrate empowered to hold any Magistrate's Court, on application being made by affidavit or other sworn evidence by the commanding officer of the person in custody and being satisfied that it is in the interest of law and order to do so may, by warrant, from time to time, remand the person to a civil prison, police station or other place provided for the confinement of persons in custody for a reasonable time not exceeding twenty-one days at any one time. Section 146(3) A magistrate to whom an application is made under subsection (2) may, on the same application or on a subsequent application made by the commanding officer, by endorsement on the warrant, order that the person in custody be returned to service custody for such periods as may be necessary to enable a court-martial to be held, or may order the person's discharge from the civil prison or other place of detention.
Part VIII
SUMMARY DISCIPLINARY PROCEEDINGS
- 147 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 147. Guiding principles
Guiding principles (refers to Article 47 of the Constitution).
Section 147. Guiding principles Section by Article 47 of the Constitution; and - 148 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 148. Certain charges may be dealt with summarily
Commanding officers or appropriate superior authorities may deal summarily with certain disciplinary charges subject to prescribed limits; but a commanding officer of rank major must not deal summarily with charges against captains or above, and commanding officers below major must not deal summarily with charges against any officer.
Section 148. Certain charges may be dealt with summarily Section 148(1) Subject to the prescribed limits, the commanding officer or appropriate superior authority may summarily deal with a charge for an offence prescribed as disciplinary offence which a commanding officer or appropriate superior authority may deal with summarily. Section 148(2) Despite subsection (1), a commanding officer of the rank of major or corresponding rank shall not deal summarily with a charge against an officer of the rank of captain or corresponding rank or above, and a commanding officer below the rank of major or corresponding rank shall not deal summarily with a charge against any officer. - 149 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 149. Appropriate superior authority
Defines who is the appropriate superior authority (Chief of the Defence Forces, Service Commander, or an officer not below Lieutenant-Colonel or corresponding rank) and excludes officers of a prescribed rank from acting as that authority when the accused is above that prescribed rank.
Section 149. Appropriate superior authority Section For purposes of this Act, the appropriate superior authority is the Chief of the Defence Forces, Service Commander or such officer, not below the rank of Lieutenant-Colonel or corresponding rank, as may be prescribed but an officer of a prescribed rank shall not be the appropriate superior authority for the purposes of a case in which the accused is above the prescribed rank. - 150 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 150. Reporting and investigation of offences
The commanding officer must forward complaints about alleged Part VI offences to the military police for investigation.
Section 150. Reporting and investigation of offences Section If a person who is subject to this Act is accused of an offence under Part VI, the accusation shall be reported in the form of a complaint to the accused's commanding officer, and the commanding officer shall forward the complaint to the military police for investigation in the prescribed manner. - 151 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 151. Rights and representation of an accused person during trial
Accused persons have a right to representation; nominees for representation must meet specified conditions and must not be trained lawyers; if the offence is punishable by death the accused is entitled to state-funded legal representation.
Section 151. Rights and representation of an accused person during trial Section 151(1) An accused person who is subject to this Act shall be informed of the charges against him or her and of his or her right to be represented during the summary disciplinary proceedings or trial. Section 151(2)(a) that person is an officer or a service member and remains as such while carrying out that function; Section 151(2)(b) that person consents to the nomination; Section 151(2)(c) the nominee is available and accessible at the time of the proposed trial; and Section 151(2)(d) the nominee is not of an equivalent rank or higher rank than the trial authority. Section 151(3) The nominee under subsection (2) shall not be a person trained as a lawyer. Section 151(4) Notwithstanding subsection (3), where the offence is punishable by death, the accused person shall be entitled to legal representation at the expense of the State. - 152 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 152. Conditions to be satisfied
A commanding officer (or appropriate superior) may conduct a summary trial only if five listed conditions are met; a commanding officer must not preside if they laid or caused the charge or are the complainant, except when it is not practicable for another commanding officer to conduct the trial.
Section 152. Conditions to be satisfied Section 152(1)(a) the accused person is within the prescribed ranks, that the commanding officer or appropriate superior authority is authorised to deal with; Section 152(1)(b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate; Section 152(1)(c) if the accused person has the right to elect to be tried by a court-martial, the accused person has not elected to be so tried; Section 152(1)(d) the offence is not one that, according to regulations, the commanding officer is precluded from trying; and Section 152(1)(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence. Section 152(2) Unless it is not practicable, having regard to all the circumstances, for any other commanding officer to conduct the summary trial, a commanding officer may not preside at the summary trial of a person charged with an offence if the commanding officer laid the charge or caused it to be laid or is the complainant. - 153 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 153. Limitation of time for trial of offences
A person must not have a charge handled summarily for an offence under this Act unless the trial began within three years after the offence (subject to subsections (2) and (3)).
Section 153. Limitation of time for trial of offences Section 153(1) A person shall not have a charge dealt with summarily for an offence under this Act, other than an offence under sections 72 , 73 or 74 (1)(a), unless the trial begun within three years after the commission of the offence, subject to subsections (2) and (3). Section 153(2) When calculating a period contemplated in subsection (1), any period during which a person was illegally absent or a prisoner of war shall be disregarded. Section 153(3) In applying subsection (1), in the case of an offence under section 133 , if any written law requires that proceedings for the corresponding civil offence shall be brought within a particular time, that time limit shall apply to the trial of the offence under that section instead of three years (the same periods being disregarded). - 154 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 154. Hearing procedures
If a person subject to the Act accepts a summary trial, that person or their representative may present evidence and call witnesses during the hearing; the commanding officer must consider all information, and be convinced the accused committed the offence before imposing punishment.
Section 154. Hearing procedures Section 154(1) If a person who is subject to this Act accepts summary trial, that person or his or her representative may present evidence and call witnesses during the hearing. Section 154(2) The commanding officer shall consider all information offered during the hearing, and shall be convinced that the accused person actually committed the offence he or she is accused of before imposing the punishment. - 155 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 155. Charges against officers and cadets
Section 155 allows commanding officers to deal summarily with or dismiss certain charges and lists a range of punishments (forfeiture of seniority, fines, reprimands, admonition, stoppages), and provides limits on recoveries and combination of punishments.
Section 155. Charges against officers and cadets Section 155(1)(a) may deal summarily with the charge if it is one that the commanding officer has power to deal with summarily, and the commanding officer considers that the charge should be so dealt with; Section 155(1)(b) may dismiss the charge on the grounds that it ought not to be further proceeded with; or Section 155(1)(c) shall refer the abstract of evidence and the charge in the prescribed manner to the Director of Military Prosecutions or the appropriate superior authority as the case may be, in any other case. Section 155(2)(a) forfeiture of up to six months' seniority of rank; Section 155(2)(b) a fine not exceeding half a month's pay; Section 155(2)(c) severe reprimand; Section 155(2)(d) reprimand; Section 155(2)(e) admonition; or Section 155(2)(f) if the offence has occasioned any expense, loss or damage, stoppages. Section 155(3)(a) dismissal from the Defence Forces; Section 155(3)(b) severe reprimand; Section 155(3)(c) reprimand; Section 155(3)(d) admonition; or Section 155(3)(e) such minor punishments as may be prescribed. Section 155(4)(a) deal summarily with the charge, if it is one that the authority has power to deal with summarily, and the authority considers that the charge should be so dealt with; or Section 155(4)(b) in any other case, refer the charge in the prescribed manner to the Director of Military Prosecutions. Section 155(5)(a) forfeiture of up to twelve months seniority of rank; Section 155(5)(b) a fine not exceeding one month's pay; Section 155(5)(c) severe reprimand; Section 155(5)(d) reprimand; Section 155(5)(e) admonition; or Section 155(5)(f) where the offence has occasioned any expense, loss or damage, stoppages. Section 155(6) Except where expressly provided for by this Act, not more than one punishment shall be awarded under this section for one offence. Section 155(7) Stoppages may be awarded either in addition to or without any other punishment. Section 155(8) A severe reprimand or a reprimand may be awarded in addition to forfeiture of seniority of rank or a fine not exceeding one month's basic pay. Section 155(9) Notwithstanding subsections (1) to (8), the recovery under this section, in any one instance, shall not be more than half of the basic salary. - 156 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 156. Charges against service member
Commanding officers may deal summarily with, dismiss, or refer charges; the section lists possible punishments including dismissal, reduction in rank, forfeiture of seniority up to six months, fines up to one month's pay, reprimands, minor punishments, admonition, stoppages, and imprisonment not exceeding forty-two days (aggregate). Recovery under this section is limited to not more than half of basic salary in any one instance.
Section 156. Charges against service member Section 156(1)(a) shall deal summarily with the charge if the charge is one that the commanding officer has power to deal with summarily and the commanding officer considers that the charge should be so dealt with; Section 156(1)(b) may dismiss the charge if the commanding officer considers that it ought not to be proceeded with further; or Section 156(1)(c) shall refer the abstract of evidence and the charge in the prescribed manner to the Director of Military Prosecutions, in any other case. Section 156(2)(a) dismissal from the Defence Forces; Section 156(2)(a)(i) dismissal from the Defence Forces; Section 156(2)(a)(ii) reduction in rank by one rank; Section 156(2)(a)(iii) forfeiture of seniority of rank for up to a maximum of six months; Section 156(2)(a)(iv) a fine of a sum not exceeding one month's pay; Section 156(2)(a)(v) severe reprimand; Section 156(2)(a)(vi) reprimand; Section 156(2)(a)(vii) such minor punishments as may be prescribed; Section 156(2)(a)(viii) admonition; or Section 156(2)(a)(ix) where the offence has occasioned any expense, loss or damage, stoppages; Section 156(2)(b) imprisonment for a term not exceeding forty-two days or, if the accused is on active service, active service punishment for a period not exceeding forty-two days and where more than one term of imprisonment or active service punishment is awarded in the course of the same hearing, the terms shall not exceed forty-two days in the aggregate; Section 156(2)(b)(i) imprisonment for a term not exceeding forty-two days or, if the accused is on active service, active service punishment for a period not exceeding forty-two days and where more than one term of imprisonment or active service punishment is awarded in the course of the same hearing, the terms shall not exceed forty-two days in the aggregate; Section 156(2)(b)(ii) dismissal from the Defence Forces; Section 156(2)(b)(iii) a fine of a sum not exceeding one month's pay; Section 156(2)(b)(iv) such minor punishments as may be prescribed; Section 156(2)(b)(v) admonition; Section 156(2)(b)(vi) where the offence has occasioned any expense, loss or damage, stoppages. Section 156(3)(a) dismissal; Section 156(3)(b) reduction in rank of a warrant officer, senior sergeant or sergeant, or corresponding rank, Section 156(4) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence. Section 156(5) In the case of a warrant officer or non-commissioned officer, a severe reprimand or reprimand may be awarded in addition to forfeiture of seniority of rank or a fine. Section 156(6) If an offender is on active service on the day of the sentence, a fine may be awarded in addition to active service punishment. Section 156(7) Stoppages may be awarded either in addition to or without any other punishment. Section 156(8) Minor punishments may be awarded in addition to a fine. Section 156(9) Notwithstanding the above provisions, the recovery under this section, in any one instance, shall not be more than half of the basic salary. - 157 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 157. Option election by accused to be tried by court-martial
Before a summary charge is dealt with, the commanding officer or appropriate superior authority must offer the accused the opportunity to opt for trial by court-martial; if the accused opts, the charge is referred to the Director of Military Prosecutions who is the final authority to decide whether the matter goes to court-martial or back to summary trial; the accused may withdraw the option before the court-martial is convened.
Section 157. Option election by accused to be tried by court-martial Section 157(1) Before dealing with a charge summarily, the commanding officer or appropriate superior authority, as the case may be, shall give the accused the opportunity to opt to be tried by a court-martial. Section 157(2) If an accused opts to be tried by a court-martial, the commanding officer or appropriate superior authority, as the case may be, shall refer the charge to the Director of Military Prosecutions who shall be the final authority in deciding whether the charges should be dealt with by court martial or be referred back to summary trial. Section 157(3) If two or more charges against an accused are to be heard summarily together, an option stands for trial by a court-martial in respect of any of the charges. Section 157(4)(a) a charge is amended; Section 157(4)(b) a charge is substituted for another charge; or Section 157(4)(c) an additional charge is brought, Section 157(5) If the accused refuses to make an option, that refusal shall be treated as option to be tried by a court-martial and the accused shall be so informed. Section 157(6) The accused may withdraw an option to be tried by a court-martial at any time before the court-martial is convened. [Act No. 44 of 2016 , s. 25.] - 158 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 158. Review of summary findings and awards
A reviewing authority may at any time review a summary finding or award and may quash a finding for mistakes of law or substantial injustice; if a finding is quashed the authority shall also quash the award.
Section 158. Review of summary findings and awards Section 158(1) If a charge has been dealt with summarily and has not been dismissed, the reviewing authority may at any time review the finding or award. Section 158(2) If, on a review under this section, it appears expedient to the reviewing authority, by reason of any mistake of law in the proceedings or of anything occurring in those proceedings which in the opinion of the authority involved substantial injustice to the accused, the authority may quash the finding, and if the finding is quashed the authority shall also quash the award. Section 158(3)(a) a punishment awarded was invalid; Section 158(3)(b) a punishment awarded was too severe; Section 158(3)(c) if the award included two or more punishments, those punishments or some of them could not validly have been awarded in combination or taken together, are too severe; or Section 158(3)(d) a punishment awarded was too lenient, Section 158(4)(a) the officer superior in command to the officer who dealt summarily with the charge; Section 158(4)(b) the Service Commander; Section 158(4)(c) the Chief of the Kenya Defence Forces, if the Commander was involved in the summary proceedings; or Section 158(4)(d) the Defence Council. - 159 Verify source ↗
SUMMARY DISCIPLINARY PROCEEDINGS - 159. Automatic administrative review
Commanding officers must submit trial findings in writing to a superior commander within 14 days; the superior commander must review within 14 days of receipt and inform the accused in writing; the accused may seek other legal redress or apply to the Defence Council.
Section 159. Automatic administrative review Section 159(1) Upon reaching a determination in relation to any offence tried by the commanding officer, the commanding officer shall, within fourteen days, submit the findings of the trial in writing, to a superior commander for review. Section 159(2) The superior commander shall within fourteen days of receipt of the findings, review the findings and inform the accused person of the outcome of the review, in writing. Section 159(3) The administrative review under subsection (1) shall not preclude the accused person from seeking other legal redress from any other authority provided for under this Act or any other written law, or applying for a review to the Defence Council.
Part X
APPEALS FROM COURTS MARTIAL
- 186 Verify source ↗
APPEALS FROM COURTS MARTIAL - 186. Appeal to High Court
Allows specified actors to appeal court-martial decisions to the High Court and beyond.
Section 186. Appeal to High Court Section 186(1)(a) the person convicted may appeal to the High Court and make subsequent appeals to any other superior court, against the conviction, the sentence, or both; or Section 186(1)(b) the Director of Public Prosecutions may appeal to the High Court and make subsequent appeals to any other superior court against the sentence. Section 186(2) If a person has been acquitted of a charge by a court-martial, the Director of Public Prosecutions may appeal to the High Court and make subsequent appeals to any other superior court against the acquittal. [Act No. 44 of 2016 , s. 26A.] - 187 Verify source ↗
APPEALS FROM COURTS MARTIAL - 187. Notice of Appeal
The High Court may extend the period for lodging a notice of Appeal (except in death‑sentence convictions); an appellant may present the appeal in writing.
Section 187. Notice of Appeal Section 187(1) An appeal to the High Court shall not lie unless a notice of Appeal is lodged with the Registrar within twenty-one days after the acquittal, conviction or sentence, as the case may be. Section 187(2) The notice of appeal shall be in the prescribed form. Section 187(3) Except in the case of a conviction involving sentence of death, the High Court may extend the period within which a notice or Appeal shall be lodged, whether that period has expired or not. Section 187(4) An appellant may present the appeal case in writing. - 188 Verify source ↗
APPEALS FROM COURTS MARTIAL - 188. Determination of appeal in ordinary cases
On an appeal against sentence, the court may reduce or increase the sentence or alter its nature.
Section 188. Determination of appeal in ordinary cases Section 188(1)(a) is unreasonable; Section 188(1)(a)(i) is unreasonable; Section 188(1)(a)(ii) cannot be supported, having regard to the evidence; Section 188(1)(a)(iii) involves a wrong decision on a question of law; or Section 188(1)(a)(iv) there was a miscarriage of justice, unless the court finds that no substantial miscarriage of justice has actually occurred; or Section 188(1)(b) dismiss the appeal. Section 188(2)(a) the evidence was such that the person acquitted should have been convicted; or Section 188(2)(b) the acquittal involves a wrong decision on a question of law, Section 188(3) On an appeal against sentence, the court may reduce or increase the sentence or alter the nature of the sentence, as it thinks proper. - 189 Verify source ↗
APPEALS FROM COURTS MARTIAL - 189. Powers of court in special cases
The High Court, on appeal, must quash a conviction and substitute a special finding of insanity if it considers the appellant committed the act but was insane; terms of sentences passed by the High Court generally run from the time they would have run in the original proceedings unless the High Court directs otherwise.
Section 189. Powers of court in special cases Section 189(1)(a) was not properly convicted on a particular charge brought before the court-martial; and Section 189(1)(b) was properly convicted on some other charge so brought, Section 189(2)(a) the court-martial could lawfully have convicted the appellant of some other offence; and Section 189(2)(b) it appears to the High Court that the court-martial shall have been satisfied of facts which proved the appellant guilty of that other offence, Section 189(3)(a) an appellant has been convicted of an offence committed in circumstances involving the greater of two punishments, and it appears to the High Court that the court-martial ought to have found the appellant guilty of an offence as being committed in circumstances involving the less punishment; or Section 189(3)(b) an appellant has been convicted of an offence and it appears to the High Court that the court-martial ought to have convicted the appellant of the offence subject to exceptions or variations, Section 189(4) If, on an appeal, the High Court considers that the appellant did the act or made the omission charged but was insane so as not to be responsible for the acts or omissions at the time when the act was done or the omission was made, it shall quash the conviction and substitute a special finding that the appellant was guilty of the act or omission charged but was insane, and section 179 (2) shall apply accordingly. Section 189(5) The term of any sentence of imprisonment passed by the High Court under this section shall, unless the High Court otherwise directs, run from the time from which it would have run if it had been passed in the proceedings appealed against, and a sentence passed by the High Court shall be deemed for the purposes of this Act to be a sentence passed by the court-martial. - 190 Verify source ↗
APPEALS FROM COURTS MARTIAL - 190. Court may appoint expert
The High Court may appoint an expert to assist in appeals when such knowledge is required for proper determination.
Section 190. Court may appoint expert Section The High Court may appoint a person with special or expert knowledge to assist the Court in any such manner as it deems expedient in the discharge of justice, if the court considers that such knowledge is required for the proper determination of an appeal before it. - 191 Verify source ↗
APPEALS FROM COURTS MARTIAL - 191. Proceedings to be heard in absence of appellant
Appellants have the right to be present (either by rules of court or if the High Court grants leave), and the High Court may exercise its powers under this Part even if the appellant is absent.
Section 191. Proceedings to be heard in absence of appellant Section 191(1)(a) rules of court provide that the appellant shall have the right to be present; or Section 191(1)(b) the High Court grants leave to be present. Section 191(2) Any power of the High Court under this Part to make a determination or pass a sentence may be exercised despite the absence of the appellant. - 192 Verify source ↗
APPEALS FROM COURTS MARTIAL - 192. Defence on appeal
When a person appeals a conviction or sentence, the Director of Public Prosecutions must arrange the defence of the appeal.
Section 192. Defence on appeal Section If a person appeals against a conviction, sentence or both, the Director of Public Prosecutions shall make arrangements for the defence of the appeal. - 193 Verify source ↗
APPEALS FROM COURTS MARTIAL - 193. Person sentenced to death to have opportunity to appeal
A person sentenced to death is entitled to an opportunity to appeal.
Section 193. Person sentenced to death to have opportunity to appeal Section shall not be executed until after the expiration of the period within which a notice of appeal may be lodged to the High Court against the conviction or sentence or both; and - 194 Verify source ↗
APPEALS FROM COURTS MARTIAL - 194. Removal of prisoner
If an appellant is in custody, the appellant must be taken to, kept in custody at, and brought back from any place at which the appellant is entitled to be present for the purposes of this Part; the High Court may order the appellant to be taken to any prescribed place for the purpose of its proceedings.
Section 194. Removal of prisoner Section An appellant who is in custody, shall be taken to, kept in custody at, and brought back from, any place at which the appellant is entitled to be present for the purposes of this Part in the prescribed manner, and the High Court may order the appellant to be taken to any prescribed place for the purpose of any proceedings of the High Court. - 195 Verify source ↗
APPEALS FROM COURTS MARTIAL - 195. Composition of court
When hearing an appeal under this Part, the High Court must be made up of one or more Judges.
Section 195. Composition of court Section Upon the hearing of an appeal under this Part, the High Court shall consist of one or more Judges. - 196 Verify source ↗
APPEALS FROM COURTS MARTIAL - 196. Furnishing of documents
When there is an appeal under this Part, the Defence Court Administrator must provide the Registrar with the court-martial's proceedings record following the rules of court martial.
Section 196. Furnishing of documents Section In the case of an appeal, under this Part, it shall be the duty of the Defence Court Administrator to furnish the Registrar, in accordance with rules of court martial, with a record of the proceedings of the court-martial. [Act No. 44 of 2016 , s. 27.] - 197 Verify source ↗
APPEALS FROM COURTS MARTIAL - 197. Duties of Registrar
The Registrar must take all necessary steps to obtain determination of appeals under this Part, obtain and present to the High Court documents and exhibits necessary for appeals, and must furnish forms and instructions about appeals to requesters and prison authorities; prison officers must make those forms available to prisoners who want to lodge an appeal.
Section 197. Duties of Registrar Section 197(1) The Registrar shall take all necessary steps obtaining the determination of an appeal under this Part, and shall obtain and lay before the High Court in proper form all documents, exhibits and other things relating to the proceedings before the court-martial that appear necessary for the proper determination of appeal. Section 197(2) The Registrar shall furnish the necessary forms and instructions relating to an appeal under this Part to any person who asks for them, to persons in charge of prisons and to such other persons as the registrar thinks fit, and every person in charge of a prison shall cause the forms and instructions so furnished to be placed at the disposal of persons imprisoned who desire to lodge an appeal under this Part. - 198 Verify source ↗
APPEALS FROM COURTS MARTIAL - 198. Saving of prerogative of mercy
This Part does not affect the exercise of the power of mercy under Article 133 of the Constitution.
Section 198. Saving of prerogative of mercy Section Nothing in this Part shall affect the exercise of the power of mercy under Article 133 of the Constitution. - 199 Verify source ↗
APPEALS FROM COURTS MARTIAL - 199. Procedure
Provisions of the Criminal Procedure Code about hearing appeals from subordinate courts apply to hearing and determining appeals under this Part, subject to this Part and any rules of court.
Section 199. Procedure Section Subject to this Part and to any rules of court, the provisions of the Criminal Procedure Code ( Cap. 75 ) relating to the hearing of appeals from subordinate courts shall apply to the hearing and determination of appeals under this Part. [Act No. 44 of 2016 , s. 28.]
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