Criminal Procedure Code

Section 1. Short title Section This Act may be cited as the Criminal Procedure Code.

Section 2. Interpretation Section In this Code, unless the context otherwise requires— "cognizable offence" means an offence for which a police officer may, in accordance with the First Schedule or under any law for the time being in force, arrest without warrant; "complaint" deleted by ActNo. 7 of 2007, Sch.; "drug related offence" means any specified in Narcotic Drugs and Psychotropic Substances (Control) Act ( Cap. 245 ) and includes the possession, manufacture, distribution or receipt of any drug of any quantity whatsoever; "non-cognizable offence" means an offence for which a police officer may not arrest without warrant; "officer in charge of a police station" includes any officer superior in rank to an officer in charge of a police station and also includes, when the officer in charge of the police station is absent from the station-house, or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to that officer, and is above the rank of constable, or, when the Inspector-General of the National Police Service so directs, any other police officer so present; "plea agreement" means an agreement entered into...

Section 3. Trial of offences under Penal Code (Cap. 63) and under other laws Section 3(1) All offences under the Penal Code ( Cap. 63 ) shall be inquired into, tried and otherwise dealt with according to this Code. Section 3(2) All offences under any other law shall be inquired into, tried and otherwise dealt with according to this Code, subject to any enactment for the time being in force regulating the manner or place of inquiring into, trying, or otherwise dealing with those offences. Section 3(3) Notwithstanding anything in this Code, the High Court may, subject to the provisions of any law for the time being in force, in exercising its criminal jurisdiction in respect of any matter or thing to which the procedure prescribed by this Code is inapplicable, exercise that jurisdiction according to the course of procedure and practice observed by and before the High Court of Justice in England at the date of the coming into operation of this Code. Section 3(4) Notwithstanding anything in this Code or any other written law, in relation to a person who is a member of the armed forces or police forces of another country lawfully present in Kenya as a consequence of an agreement between...

Section 4. Offences under Penal Code (Cap. 63) Section Subject to this Code, an offence under the Penal Code ( Cap. 63 ) may be tried by the High Court, or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this Code to be triable.

Section 5. Offences under other laws Section 5(1) An offence under any law other than the Penal Code ( Cap. 63 ) shall, when a court is mentioned in that behalf in that law, be tried by that court. Section 5(2) When no court is so mentioned, it may, subject to this Code, be tried by the High Court, or by a subordinate court by which the offence is shown in the fifth column of the First Schedule to this Code to be triable.

Section 6. Sentences which High Court may pass Section The High Court may pass any sentence authorized by law.

Section 7. Sentences which subordinate courts may pass Section 7(1)(a) a chief magistrate, senior principal magistrate, principal magistrate or senior resident magistrate may pass any sentence authorized by law for any offence triable by that court; Section 7(1)(b) a resident magistrate may pass any sentence authorized by law for an offence under section 278, 308(1) or 322 of the Penal Code ( Cap. 63 ) or under the Sexual Offences Act ( Cap. 63A ). Section 7(2)(a) imprisonment for a term not exceeding seven years; Section 7(2)(b) a fine not exceeding twenty thousand shillings; Section 7(2)(c) repealed by ActNo. 5 of 2003, s. 60. Section 7(3)(a) imprisonment for a term not exceeding two years; Section 7(3)(b) a fine not exceeding ten thousand shillings; Section 7(3)(c) repealed by ActNo. 5 of 2003, s. 60 . Section 7(4) Deleted by ActNo. 5 of 2003, s. 60. Section 7(5) In determining the extent of a court’s jurisdiction under this section to pass a sentence of imprisonment, the court shall have jurisdiction to pass the full sentence of imprisonment provided for in this section in addition to any term of imprisonment which may be awarded in default of payment of a fine, costs or compen...

Section 8. Powers of Judicial Service Commission to extend jurisdiction of subordinate courts Section The Judicial Service Commission may, by notice in the Gazette , extend the jurisdiction of any particular magistrate under section 7 either generally or in relation to particular offences triable by a court of a class which may be held by that magistrate, and a magistrate whose jurisdiction has been so extended may pass sentences thus authorized in cases where they are authorized by law. [Act No. 33 of 1963 , Sch., Act No. 11 of 1983 , Sch.]

Section 9.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 10.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 11.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 12. Combination of sentences Section Any court may pass a lawful sentence combining any of the sentences which it is authorized by law to pass. [Act No. 17 of 1967 , s. 26.]

Section 13.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 14. Sentences in cases of conviction of several offences at one trial Section 14(1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently. Section 14(2) In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court. Section 14(3)(a) of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or Section 14(3)(b) of fines which amount in the aggregate to more than twice the amount which the cou...

Section 15. Suspended Sentences Section 15(1) Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (hereinafter called the "operational period") the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine. Section 15(2) Where the offender is convicted of an offence during the operational period the sentence for the first offence in respect of which the offender was convicted under subsection (1) shall thereupon take effect. Section 15(3) Where under subsection (2) the sentence passed for the first offence under subsection (1) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the first offence. [Act No. 7 of 1990 , s. 4.]

Section 16.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 17.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 18.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 19.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 20.[Repealed by ActNo. 17 of 1967, s. 25.]

Section 21. Arrest Section 21(1) In making an arrest the police officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there be a submission to custody by word or action. Section 21(2) If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest. Section 21(3) Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.

Section 22. Search of place entered by person sought to be arrested Section 22(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place shall, on demand of the person so acting or the police officer , allow him free ingress thereto and afford all reasonable facilities for a search therein. Section 22(2) If ingress to a place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter the place and search therein, and, in order to effect an entrance into the place, to break open any outer or inner door or window of a house or place, whether that of the person to be arrested or of another person, or otherwise effect entry into the house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided...

Section 23. Power to break out of house, etc., for purposes of liberation Section A police officer or other person authorized to make an arrest may break out of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

Section 24. No unnecessary restraint Section The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Section 25. Search of arrested persons Section by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or

Section 26. Power to detain and search aircraft, vessels, vehicles and persons Section 26(1)(a) any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found; or Section 26(1)(b) any aircraft, vessel or vehicle which there is reason to suspect has been used or employed in the commission or to facilitate the commission of an offence under the provisions of Chapters XXVI, XXVIII and XXIX of the Penal Code ( Cap. 63 ); or Section 26(1)(c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained. Section 26(2) No person shall be entitled to damages or compensation for loss or damage suffered by him in respect of the detention under this section of an aircraft, vessel or vehicle. Section 26(3) For the purposes of this section, "aircraft", "vessel" and "vehicle", respectively, include everything contained in, being on or attached to an aircraft, vessel or vehicle, as the case may be, which, in the opinion of the court, forms part of the equipment of the aircraft, vessel or vehicle. [Act No. 13 of 1967 , Sch., L.N. 474/1963, Act No. 18 of 2...

Section 27. Mode of searching women Section Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

Section 28. Power to seize offensive weapons

Section 29. Arrest bypolice officerwithout warrant Section any person whom he suspects upon reasonable grounds of having committed a cognizable offence ;

Section 30. Arrest of vagabonds, habitual robbers, etc. Section any person found taking precautions to conceal his presence within the limits of the station under circumstances which afford reason to believe that he is taking those precautions with a view to committing a cognizable offence ;

Section 31. Procedure whenpolice officerdeputes subordinate to arrest without warrant Section When an officer in charge of a police station requires an officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant under section 30 , he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.

Section 32. Refusal to give name and residence Section 32(1) When a person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence refuses on the demand of the officer to give his name and residence, or gives a name or residence which the officer has reason to believe to be false, he may be arrested by the officer in order that his name or residence may be ascertained. Section 32(2) When the true name and residence of the person have been ascertained he shall be released on his executing a bond, with or without sureties, to appear before a magistrate if so required: Provided that if the person is not resident in Kenya the bond shall be secured by a surety or sureties resident in Kenya. Section 32(3) Should the true name and residence of the person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be taken before the nearest magistrate having jurisdiction.

Section 33. Disposal of persons arrested bypolice officer Section A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions of this Code as to bail, take or send the person arrested before a magistrate having jurisdiction in the case or before an officer in charge of a police station .

Section 34. Arrest by private person Section 34(1) A private person may arrest any person who in his view commits a cognizable offence , or whom he reasonably suspects of having committed a felony. Section 34(2) Persons found committing an offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorized by him.

Section 35. Disposal of person arrested by private person Section 35(1) A private person arresting another person without a warrant shall without unnecessary delay make over the person so arrested to a police officer , or in the absence of a police officer shall take that person to the nearest police station . Section 35(2) If there is reason to believe that the person comes under section 29 , a police officer shall rearrest him. Section 35(3) If there is reason to believe that he has committed a non-cognizable offence , and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which the officer has reason to believe to be false, he shall be dealt with under section 32 . Section 35(4) If there is no sufficient reason to believe that he has committed an offence he shall at once be released.

Section 36. Detention of persons arrested without warrant Section When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable: Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge. [Act No. 22 of 1959 , s. 6, Act No. 13 of 1988 , Sch.]

Section 37. Police to report apprehensions Section Officers in charge of police stations shall report to the nearest magistrate the cases of all persons arrested without warrant within the limits of their respective stations, whether those persons have been admitted to bail or not.

Section 38. Offence committed in magistrate’s presence Section When an offence is committed in the presence of a magistrate within the local limits of his jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions of this Code as to bail, commit the offender to custody.

Section 39. Arrest by magistrate

Section 40. Recapture of person escaping Section If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or is rescued may immediately pursue and arrest him in any place in Kenya.

Section 41. Provisions of sections22and23to apply to arrests undersection 40 Section The provisions of sections 22 and 23 shall apply to arrests under section 40 although the person making the arrest is not acting under a warrant and is not a police officer having authority to arrest.

Section 42. Assistance to magistrate orpolice officer Section in the taking or preventing the escape of another person whom the magistrate or police officer is authorized to arrest;

Section 43. Security for keeping the peace Section 43(1) Whenever a magistrate empowered to hold a subordinate court of the first class is informed that a person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, the magistrate shall examine the informant on oath and may as hereinafter provided require the person in respect of whom the information is laid to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit. Section 43(2) Proceedings shall not be taken under this section unless either the person informed against, or the place where the breach of the peace or disturbance is apprehended, is within the local limits of the magistrate’s jurisdiction. Section 43(3) When a magistrate not empowered to proceed under subsection (1) has reason to believe that a person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the...

Section 44. Security for good behaviour from persons disseminating seditious matter Section Repealed by ActNo. 5 of 2003, s. 62;

Section 45. Security for good behaviour from suspected persons Section Whenever a magistrate empowered to hold a subordinate court of the first class is informed on oath that a person is taking precautions to conceal his presence within the local limits of the magistrate’s jurisdiction, and that there is reason to believe that the person is taking those precautions with a view to committing an offence, the magistrate may, in the manner hereinafter provided, require that person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding one year, as the magistrate thinks fit.

Section 46. Security for good behaviour from habitual offenders Section is by habit a robber, housebreaker or thief; or

Section 47. Order to be made Section the substance of the information received;

Section 48. Procedure in case of person present in court Section If the person in respect of whom an order under section 47 is made present in court, it shall be read over to him or, if he so desires, the substance thereof shall be explained to him.

Section 49. Summons or warrant in case of person not so present Section If the person in respect of whom an order is made under section 47 is not present in court, the magistrate shall issue a summons requiring him to appear, or, when the person is in custody, a warrant directing the officer in whose custody he is to bring him before the court: Provided that, whenever it appears to the magistrate upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the magistrate) that there is reason to fear the commission of a breach of the peace, and that a breach of the peace cannot be prevented otherwise than by the immediate arrest of the person, the magistrate may at any time issue a warrant for his arrest.

Section 50. Copy of order undersection 47to accompany summons or warrant Section Every summons or warrant issued under section 49 shall be accompanied by a copy of the order made under section 47 , and the copy shall be delivered by the officer serving or executing the summons or warrant to the person served with or arrested under it.