Kenya Defence Forces Act

A sentence of imprisonment or active service punishment for an offence under Part VI runs from the beginning of the day on which the sentence was originally pronounced or awarded, subject to the rule on consecutive or concurrent sentences when a person is later convicted of another offence.

When calculating the period of imprisonment, do not count the time from the day the person became at large until the day the person is taken into custody or returns to the place of imprisonment.

When a person is sentenced to imprisonment for an offence under Part VI, the person's commanding officer must send them to prison and the prison superintendent or person in charge must receive and imprison them until the sentence is served or they are lawfully delivered from the prison.

A person sentenced to death or imprisonment who is committed or transferred to a civil prison must be imprisoned and dealt with in the same manner as someone in that prison under a similar civil court sentence.

If a person is sentenced by a court-martial held outside Kenya to imprisonment for a term exceeding forty-two days, the person shall be returned to Kenya as soon as practicable after the sentence has been passed.

Persons acting under a sentence of imprisonment for an offence under Part VI are exempt from civil action for acts that would have been lawful but for a defect in the warrant or instrument for that sentence.

Specifies which documentary materials are admissible as evidence of specified facts in proceedings under this Act, and identifies particular documents and certificates that are to be treated as evidence of the facts they state.

Lists evidentiary matters about the outcome of a civil trial (that a person was tried, the result, the judgment or order, and offences taken into consideration) and states that a document purporting to be a certificate under this section signed by a judge or magistrate shall, unless the contrary is shown, be taken to be such a certificate.

Original proceedings of a court-martial signed by the presiding officer, when produced from proper custody, are admissible in evidence before a court-martial or a civil court; a certified copy of the record by the custodian is evidence of the record or that part.

Persons who were subject to this Act and have committed or are reasonably suspected of committing an offence under Part VI are to be treated as still subject to the Act for arrest, custody, investigation, charges, trial and punishment, and execution of sentences, even if they have ceased to be subject to the Act.

Section 210 sets limits and exceptions on when trials for certain offences may be started and includes deletions of subsections (1)–(3); subsection (4)(a) requires a trial to begin within three months after a person ceases to be subject to the Act; subsection (4)(b) covers civil offences committed outside Kenya that may be tried summarily or by court martial; subsection (5) provides that a person who committed an offence under section 45(1)(a) (otherwise than on active service) and has since served continuously and exemplarily in the Defence Forces for at least three years shall not be tried for that offence.

This section says that nothing in the Act limits the offences for which a person may be tried by a civil court, and that a civil court retains jurisdiction to try a person under the Act for offences other than offences under Part VI.

Persons who have already had an offence dealt with (tried, had charge dismissed or condoned) shall not be tried under this Act for that same offence.

Creates a Director of Military Prosecutions appointed by the Defence Council with specified qualifications and powers over investigations and prosecutions, subject to limits such as requiring Judge Advocate permission to discontinue proceedings.

The Director of Military Prosecutions may exercise his powers personally or through legal officers appointed by the Defence Council (except the power to discontinue proceedings before a court-martial); delegations do not remove the Director's responsibility and may be withdrawn, and decisions of delegates may be withdrawn or amended by the Director.

An officer or service member must not have pay forfeited or deductions made unless authorised by this Act or prescribed; even after a deduction or forfeiture is ordered the person is entitled to be paid at least the prescribed minimum rate, and authorised amounts may be recovered by deduction until fully recovered.

Forfeiture of pay for absence from duty

If a fine or payment is made on behalf of an officer or service member, the amount may be deducted from that person's pay.

After a prescribed investigation, if the Service Commander or an authorised officer finds loss or damage to public property caused by wrongful act or negligence of an officer or service member, the Service Commander or authorised officer may order that person to pay a specified sum as compensation, and any such sum may be deducted from that person's pay.

When damage to Defence Forces premises (or to fixtures/effects) is found to have been caused by wrongful act or negligence of members who cannot be identified, any person belonging to those units may be required to contribute a just amount toward compensation, which may be deducted from their pay.

The Service Commander or a prescribed authority may remit a forfeiture or deduction imposed under specified sections or regulations.

When this section is active under an order made under section 182, an officer of at least major rank commanding a Defence Forces unit may issue a billeting order requiring the local police officer in charge to provide billets for a specified number of members or vehicles of the Defence Forces.

A person deprived of property under an order made under this Part is entitled to prompt payment in full of just compensation.

Billeting orders may be issued in a state of emergency.

Billets may be required in hotels and other premises providing sleeping accommodation for reward; in buildings to which the public habitually have access or which are publicly funded; and in dwellings, outhouses, warehouses, barns or stables.

When a billeting order is produced to the police officer in charge, that officer must billet occupiers of specified premises with required persons or vehicles (not exceeding numbers in the order); the officer must act to cause least hardship; the officer may authorise other police officers to exercise these functions subject to restrictions.

Occupiers billeting persons must provide accommodation and meals as required and available; occupiers billeting vehicles must provide standing room; billeted persons or vehicles may remain billeted while section 221 operates and the allotment of billets may be varied.

If there is no occupier of premises, the person entitled to possession is to be treated as the occupier for the purposes of this Part.

The committee may reassign billeted persons, dismiss applications, or grant exemptions; the Cabinet secretary must make regulations to implement this section.

If premises are damaged by billeting under a billeting order, the occupier must recover from the Government compensation equal to the cost of repair.

The Part's provisions apply to certain civilians employed with the Defence Forces who are not entitled to be billeted, and the Part also applies to aircraft, ships and boats as it does to vehicles; for ships and boats, "land" includes water.

An officer of at least the rank of major commanding part of the Defence Forces may issue a requisitioning order for specified vehicles when the section is in operation and the officer considers it necessary for defence or public safety and such necessity justifies hardship to persons with interests in the vehicles.

Section 232 sets out directions for requisitioning vehicles, including authorized descriptions and limits, where and when a vehicle must be furnished, certain exclusions for non-mechanically propelled vehicles and normally-drawn trailers, procedures when a person refuses or cannot practicably be given a direction, and a duty on the police officer in charge to provide police to accompany requisitioning where requested.

A vehicle furnished under a requisitioning order may be retained while section 231 remains in operation for any purpose connected with the needs of the Defence Forces.

A requisitioning order may require any person to furnish a vehicle so it can be purchased by the Government.

Specifies payments and entitlements when a vehicle is requisitioned, defines 'fair wear and tear', requires notification to interested persons, and gives the Court jurisdiction over claims under this section.

When specifying which alternative vehicle to requisition or direct under section 234, the person issuing the direction must act so as to cause the least hardship.

A Judge or magistrate may issue a search warrant authorizing a named police officer to enter premises (accompanied by the person) between six in the morning and nine in the evening and inspect anything, when satisfied that a person failed to provide facilities for inspection required under regulations made under section 308.

Persons using a vehicle while it is being furnished under a direction under section 231(2) are deemed to be using the vehicle as a servant of the Government, and section 4 of the Insurance (Motor Vehicles Third Party Risks) Act (Cap. 405) does not apply to that use.

This Part (except provisions about mechanically propelled vehicles and trailers) also applies to aircraft, ships, boats, certain animals, and stores such as food, forage, fuel and other stores.

The President may, by order in the Gazette, direct that section 221 or 231 (or both) come into operation and remain in operation for the period specified.

The Defence Council must report to Parliament the property billeted and the justification for billeting.

This Part applies to members of the regular force and to members of the reserve force.

The regular force is composed of persons aged between eighteen and sixty-four; members are covered by applicable pension laws and must serve until officially discharged. A person may not be enrolled unless a citizen, and a member may not take other gainful employment without prior authority from the Cabinet Secretary.

Members of the Defence Forces are entitled to pensions and gratuity determined by the National Treasury in consultation with the Defence Council; the Defence Council may withhold, reduce or suspend those benefits if an officer or service member is dismissed under circumstances in the Act, and such decisions require concurrence of the Public Service Commission.

Section 245 protects members of the Defence Forces on duty: beneficiaries can receive pay during capture/absence; members may designate beneficiaries and must notify the Chief; the Chief must keep beneficiary records; members injured or ill through no misconduct are entitled to treatment and pay during treatment; the Government must compensate members who die or are disabled in service.

Persons contracted to serve in the Defence Forces must serve and remain in service during a state of emergency or when required; members may apply for exemption or deferment under the Act.

Section 247: Termination of service of members of regular force; retirement.

Members of the Defence Forces who are sued for acts or omissions in the course of duty are entitled to legal representation funded by the State if failing to provide it would cause substantive injustice.

The Funds of the Defence Forces consist of monies allocated by Parliament, monies or assets accruing to the Defence Forces in exercising its powers or functions, and monies from other sources or donations.

The National Assembly must allocate adequate funds to enable the Defence Forces to perform its functions.

Defines the financial year for the Defence Forces as a twelve-month period from 1 July to 30 June of the following year.

The accounting officer in the Ministry designated by the National Treasury must cause the Defence Forces' revenue and expenditure estimates to be prepared.

The Defence Forces must keep all proper books and records of account of their income, expenditure, assets and liabilities.

The Defence Council must prepare an annual report each financial year, submit it to the President and Parliament within three months after year end, and publish and publicise it in a manner it determines.

Subject to subsection (5), the President may confer a commission on any member of the Defence Forces.

Section 250 sets retirement ages for officers by rank categories (62, 60, 55 years) and requires a short-service-commission officer who completes the term with pension or gratuity to be transferred to the regular reserve and remain there for three years.

The President, the Defence Council, or a Service Commander may terminate an officer's commission in specified circumstances; when they do so they must give written reasons to the affected officer.

Recruiting officers must not enlist a person unless that person shows they received the prescribed notice, understands it, and wishes to enlist; persons enlisting must make and subscribe to the oath of allegiance in the Fourth Schedule.

Sets terms and limits for enlistment and re-engagement, including prescribed periods of colour service (not exceeding twelve years), permissions to re-engage with approval, continuation year-to-year with approval, a three-month notice right to seek discharge, and transfer to the reserve until age fifty-five on completion of service.

During a state of war, insurrection, hostilities, public emergency or at a time of active service, officers due to retire (or who have completed their commission) and service members whose period of colour service expires may be retained in the Defence Forces and have their service prolonged for a further period determined by the Defence Council.

Section 255 lists grounds on which a service member may be discharged and requires the Service Commander or an authorised officer to give written reasons for any discharge to the affected member.

Allows postponement of discharge or transfer while proceedings for offences are pending.

Service members who are entitled or liable to be discharged remain subject to the Act until discharged; discharged members in Kenya are entitled to free conveyance to their attestation place or intended residence.

If a claim that an enlistment is invalid is submitted within three months it must be sent to the Defence Council, which if it finds the claim well founded must immediately discharge the member; if no timely claim is made or the Council finds it unfounded, the person is deemed validly enlisted. A person may claim discharge within three months after first pay.

Officers and service members liable for transfer to the regular reserve remain subject to the Act until transferred; those serving abroad must be returned to Kenya free of cost and transferred on arrival (or within six months if they consent to a delay); a service member transferred in Kenya is entitled to free conveyance to the attestation place or intended residence in Kenya.

The Defence Council may decide that there shall be a volunteer reserve and determines what officers and service members it will consist of.

A reservist may be called out for training for up to 28 days in any one year; during training the reservist may be posted or attached to and trained with any unit of the Defence Forces.

The President may call out reservists temporarily (for purposes such as strengthening the Defence Forces or supporting the National Police Service in emergencies) for a period not exceeding sixty days; in a notice the President may give or authorise the Cabinet Secretary to give directions; every reservist called out shall attend at the place and time appointed.

When Article 58 applies, the President may call reservists onto permanent service; the President may direct or authorise the Cabinet Secretary to issue directions for this; reservist officers and service members called out must serve until no longer required subject to age limits and remaining reserve service plus any further period the Cabinet Secretary determines.

Section 264 creates offences for reservists: subsection (1)(a) makes certain called-out reservists guilty of absence without leave; subsection (1)(b) makes called-out reservists guilty of desertion or absence without leave depending on circumstances; subsection (2) makes section 137 apply to reservists who commit offences under this section.

An officer must record in the service books when a reservist fails to report and the absence continues for at least twenty-one days.

The provision lists circumstances in which a reservist may be released from the reserve and states that if a reservist is charged or undergoing punishment release is deferred until trial or punishment is completed.

Release from service where the reservist is pronounced by a medical officer to be mentally or physically unfit for further service.

This Part applies to civilians and any other person not otherwise subject to this Act; offences under this Part shall be tried by civil courts.

It is an offence to assault, resist or willfully obstruct a member of the military police in the performance of duties, or any person acting in aid of such a member.

Section 270 has been repealed.

The provision describes procuring or persuading a person to desert or be absent without leave from the Defence Forces.

It is an offence for any person to falsely represent themselves to a service or civil authority as a deserter or absentee without leave from the Defence Forces; on conviction by a civil court the person may be imprisoned for a term not exceeding six months.

Any person who willfully obstructs or interferes with an officer or service member acting in the execution of a duty commits an offence and is liable to imprisonment for a term not exceeding six months.

Aiding malingering: produces in an officer or service member any sickness or disability

It is an offence for a person to acquire, procure the disposal of, or act in disposing of government "service stores"; on conviction by a civil court the person may be imprisoned for up to two years.

It is an offence to refuse to receive a person billeted under a billeting order or, without reasonable excuse, to fail to furnish the required accommodation.

Section 277 creates offences for failing to furnish vehicles or specified things when requisitioned, failing to comply with regulations under section 304(1)(u), and obstructing officers in inspection or requisitioning.

A person must not have in their possession documents (including official mobilization/demobilization documents) without lawful authority or reasonable excuse, including possessing them as security for a debt or to obtain payment of a debt.

Persons must not without authority use, wear, falsely represent entitlement to, or trade in service uniforms, decorations, badges, insignia of rank, wound stripes or emblems supplied or authorised by the President or the Defence Council; wearing brooches or ornaments representing service badges is permitted.

Provides definitions used in this Part for terms such as "appropriate authority", "civilian component", "dependant", "designated country", "forces", "member", "sentence", "service court", "service law", and "visiting force".

The Cabinet Secretary responsible for Foreign Affairs may, by order, designate a country as one to which this Part applies if the Defence Council considers it expedient.

Service courts and service authorities of a designated country may exercise, in Kenya or on government ships or aircraft, over members of their visiting force the powers they have under that country's law, subject to the Constitution of Kenya.

Kenyan civil courts have exclusive jurisdiction and primary right to try members of visiting forces for civil offences, unless a treaty provision gives that right to the visiting force; members shall not be tried twice by Kenyan courts; Kenyan courts must consider prior foreign sentences when sentencing.

Certificates and certain documents about visiting forces are treated as conclusive or presumed evidence of specified facts in Kenyan courts, unless the contrary is proved.

The Defence Council must, by notice in the Gazette, specify and designate suitable and distinct uniforms for members of the Defence Forces.

Subsection (1): specified ranks must stand in the order of precedence as named in that subsection. Subsection (2): officers, warrant officers and non-commissioned officers of the same rank must stand in order of precedence and command according to any Defence Council order, or if none, by seniority by date of appointment to current rank.

Members of the Defence Forces or cooperating forces are exempt from tolls when on duty.

Judgments, decrees or orders given or made against a member of the Defence Forces shall not be enforced by levying execution on public property used by that person for service purposes.

Persons subject to the Act may make statutory declarations outside Kenya before an authorised officer (officer of rank major or above).

Officers on commissioning and service members on enlistment must give their ordinary residence and next-of-kin details, and those particulars must be recorded; officers and service members must report any change to the recorded particulars.

A member must sign the section in the presence of an officer, and the officer must subscribe the officer's name as a witness in the member's presence.

Paymasters or officers in control of a deceased Defence Forces member's pay or movable property must deliver it to the executor, or if there is no will, to the personal representative or the Public Trustee; the Public Trustee must then administer and distribute it under the Public Trustee Act. The Service Commander may issue a certificate deeming a missing member to be dead.

Uniforms and decorations shall not be treated as part of the estate of a deceased member of the Defence Forces and shall be delivered to the Service Commander to be disposed of as prescribed by regulation.

Subsection (1): Movable property of a deserter that is in the charge or control of the paymaster or any other officer, including money due to the deserter, must be disposed of in a manner prescribed by regulations. Subsection (2): Regulations under subsection (1) must not arbitrarily deny a person his or her entitlements or benefits.

Provides for boards of inquiry: lists certain matters (absence, capture, death, prescribed matters), permits the Defence Council/Service Commander/commanding officer to convene a board, requires a board to consist of prescribed persons and for the chair to be at least a Lieutenant, and makes evidence before a board inadmissible in most court-martial or related proceedings with stated exceptions.

If a board of inquiry reports an officer or service member has been absent without leave or other sufficient cause for at least twenty one days, a record of that report must be entered in the service books; that record has the same effect as a conviction for desertion unless the absentee surrenders or is arrested, or the report is annulled.

The Defence Council must establish an internal grievance mechanism under the Office of the Chief of the Kenya Defence Forces and, within ninety days of commencement of the Act, make rules of procedure for it.

Authorises regulations covering a wide range of Defence Forces matters including commissioning and appointment of officers, pensions, recruitment, discipline, pay and allowances, postings and transfers, equipment, establishments, custody and treatment of prisoners, reservist duties, boards of inquiry, fees and forms, re-employment of retired personnel, military schools, and equal opportunity measures.

Sets out the procedure to be observed in bringing charges before commanding officers and appropriate superior authorities.

The Standing Orders must not be inconsistent with this Act.

The Chief Justice may make rules governing practice and procedure in courts martial and appeals from the courts martial.

Regulations, rules, orders or other instruments made under this Act may include detailed provisions for specified cases or classes of cases and may make different provision for different cases; classes may be defined by reference to circumstances specified in the instrument, and such instruments may impose conditions, require acts to be done to a named person's satisfaction (including non-Defence Forces persons), empower that person to give directions or prohibitions (oral or written), and prescribe time periods or dates and appeals against such measures.

An authorised officer may sign directions, requirements, orders or determinations; instruments appearing to be signed by such an authorised officer are presumed to have been signed by an authorised officer unless proved otherwise.

Several transitional and savings rules treat references, existing instruments and service orders under the former Armed Forces Act as applying under this Act, require existing service orders/rules to be reviewed within twelve months, and provide that pre‑existing instruments continue to apply until amended to conform with the Constitution and this Act.

Persons who immediately before the commencement of this Act were officers or service members of the Armed Forces are, at the commencement of this Act, deemed to be officers or service members of the Defence Forces.

A person who immediately before the commencement of this Act was a Government employee seconded or attached to the Armed Forces shall, upon commencement of the Act, be deemed to have been seconded or attached under this Act.

A person serving in the reserve forces immediately before this Act commenced is to be treated as enrolled under this Act for the remainder of their predetermined service period.

Persons who immediately before the commencement of this Act were serving in the Armed Forces Constabulary are to be treated as enrolled as members of the constabulary under this Act for the remainder of their predetermined service period.

On commencement, property, assets, rights, liabilities, obligations, agreements and other arrangements vested in or held by the Armed Forces are to be treated as vested in, acquired by, or incurred by the Defence Forces to the same extent as before commencement.

The Defence Council must establish systems and policies to ensure continuous and sustainable Defence Forces reforms.