Office of the Director of Public Prosecutions Act

Section 1. Short title Section This Act may be cited as the Office of the Director of Public Prosecutions Act.

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "Director" means the Director of Public Prosecutions appointed in accordance with Article 157(2) of the Constitution and section 8 of this Act; "Inspector-General" means the Inspector-General of the National Police Service appointed in accordance with Article 245(2) of the Constitution and section 9 of the National Police Service Act (Cap. 84); "Investigative Agency" in relation to public prosecutions means the National Police Service, Ethics and Anti-Corruption Commission, Kenya National Commission on Human Rights, Commission on Administration of Justice, Kenya Revenue Authority, Anti-Counterfeit Agency or any other Government entity mandated with criminal investigation role under any written law; "National Police Service" means the National Police Service established by Article 243 of the Constitution; "offence" means an act, attempt or omission punishable by law; "Office" means the office of the Director of Public Prosecutions established under Article 157(1) of the Constitution; "police officer" has the meaning assigned to it under the National Police Service Act, (Cap. 84); "prosecution"...

Section 3. Object of the Act Section The object of this Act is to give effect to the provisions of Articles 157 and 158 and other relevant Articles of the Constitution.

Section 4. Guiding principles Section the diversity of the people of Kenya;

Section 5. Powers and functions of the Director Section 5(1)(a) have power to direct the Inspector-General to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction; Section 5(1)(b) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; Section 5(1)(b)(i) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; Section 5(1)(b)(ii) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and Section 5(1)(b)(iii) subject to Article 157(7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions; Section 5(1)(c) formulate and keep under review public prosecution policy; Section 5(1)(d) perform any functio...

Section 6. Independence of the Director Section not require the consent of any person or authority for the commencement of criminal proceedings;

Section 7. Accountability and reporting of the Office Section 7(1) As soon as practicable after the end of each financial year, the Director shall submit a report to the President and Parliament on the performance and overall fulfillment of the object and purpose of the Office under the Constitution, this Act and any other written law. Section 7(2) At any time, the President, the National Assembly or the Senate may require the Director to submit a report on a particular issue. Section 7(3) Every report required from the Director under this section shall be published and publicised. Section 7(4) The Director shall prepare such other reports as may be required under any other written law. Section 7(5) The Speaker of the National Assembly shall cause the report received under this section to be laid before the National Assembly for debate not later than seven days after the National Assembly first meets, after the Speaker has received the report.

Section 8. Appointment of the Director Section 8(1)(a) the Office of the President; Section 8(1)(b) the Office of the Attorney-General; Section 8(1)(c) the Ministry responsible for public service; Section 8(1)(d) the Kenya National Commission on Human Rights; Section 8(1)(e) the Law Society of Kenya; Section 8(1)(f) the Central Organizations of Trade Unions; and Section 8(1)(g) the Ethics and Anti-corruption Commission. Section 8(2)(a) convene the first meeting of the selection panel, at which the members of the selection panel shall elect a chairperson from among their number; and Section 8(2)(b) provide the selection panel with such facilities and other support as it may require for the discharge of its functions. Section 8(3) The selection panel shall, within seven days of convening, by advertisement in at least two daily newspapers of national circulation, invite applications from persons who qualify for nomination and appointment for the position of the Director. Section 8(4)(a) consider the applications received under subsection (3) to determine compliance with the Constitution; Section 8(4)(b) shortlist the applicants; Section 8(4)(c) publish the names of the shortlisted app...

Section 9. Removal of the Director Section The Director may be removed from office in accordance with Article 158 of the Constitution.

Section 10. Resignation of the Director Section 10(1) The Director may resign from office by issuing a one month notice to the President. Section 10(2) The resignation under subsection (1) shall take effect upon receipt and acceptance, in writing, by the President.

Section 11. Vacancy Section dies;

Section 12. Deputy Directors Section 12(1) There shall be appointed such number of Deputy Directors to assist the Director in the execution of his or her powers and functions under the Constitution, this Act and any other written law. Section 12(2) The Deputy Directors shall exercise the powers and functions subject to superintendence, directions and control of the Director. Section 12(3) The Deputy Directors shall be appointed in a competitive and transparent manner.

Section 13. Composition Section 13(1)(a) the Director appointed in accordance with Article 157 of the Constitution and section 8 of this Act; Section 13(1)(b) Deputy Directors appointed under this Act; Section 13(1)(c) Secretary of Prosecution Services; Section 13(1)(d) Prosecution Counsel; Section 13(1)(e) technical staff; and Section 13(1)(f) such other members of staff of the Office as may be appointed from time to time. Section 13(2) The Office shall have power to appoint, control and supervise its staff in a manner and for such purposes as may be necessary for the promotion of the purpose and the object for which the Office is established.

Section 14. Access to service Section 14(1) Pursuant to Article 6(3) of the Constitution, the Office shall ensure reasonable access to its services in all parts of the Republic. Section 14(2) All public prosecutors appointed under this Act shall be under the immediate superintendence and control of the Director or such other officer as the Director may designate for better management and coordination of prosecution services. Section 14(3) The Director may, by a directive under his hand designate an officer subordinate to him to be in charge of prosecution services in one or more counties as the Director may specify. Section 14(4) An officer designated under subsection (3) shall have jurisdiction throughout the counties specified by the Director. Section 14(5)(a) observe the guiding principles under section 4 of this Act; Section 14(5)(b) carry out the prosecutor’s functions impartially and avoid discrimination on any ground including race, gender, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth; Section 14(5)(c) protect the public interest, act with objectivity, take account...

Section 15. Protection from personal liability Section No matter or thing done by a member of the staff of the Office or any officer, employee or agent of the Office shall, if the matter or thing is done in good faith in the execution of the functions, powers or duties of the Office, render the member, officer, employee or agent personally liable to any action, claim or demand whatsoever.

Section 16. Advisory Board Section 16(1) There is established an advisory Board to the Office. Section 16(2)(a) the Principal Secretary for the time being responsible for matters relating to public service; Section 16(2)(b) the Director of Public Prosecutions; Section 16(2)(c) the Attorney-General; Section 16(2)(d) the Principal Secretary for the time being responsible for the National Treasury; Section 16(2)(e) the Chief Registrar of the Judiciary; Section 16(2)(f) the Chairperson, Law Society of Kenya; Section 16(2)(g) the Director, Witness Protection Agency; Section 16(2)(h) the Chairperson, Kenya National Commission on Human Rights; and Section 16(2)(i) the Inspector General of the National Police Service. Section 16(3) The Director of Public Prosecutions shall be the chairperson of the Board. Section 16(4) The Secretary of Prosecution Services shall be the secretary to the Board. Section 16(5) The members of the Board may attend the meetings or any matter of the Board in person or through their appointed representatives. Section 16(6)(a) if the member is absent, without reasonable excuse from three consecutive meetings of the Board of which the member has had notice; Section 1...

Section 17. Functions and powers of the Board Section 17(1)(a) recruitment and appointment of members of staff of the Office; Section 17(1)(b) promotions; Section 17(1)(c) discipline; and Section 17(1)(d) any other matters that may be referred to the Board by the Director. Section 17(2) Members of the Board shall be paid such allowances as the Cabinet Secretary responsible for Finance, in consultation with the Director, shall approve upon advise of the Salaries and Remuneration Commission. Section 17(3) The Board shall meet at least four times in every financial year and not more than four months shall elapse between one meeting and the next meeting. Section 17(4) Unless three quarters of the members otherwise agree, at least fourteen days’ notice of a meeting shall be given to every member. Section 17(5) The quorum at the meeting of the Board shall be six members or a greater number as determined by the Board. Section 17(6) The chairperson shall convene and preside over the meetings of the Board or in the absence of the chairperson, a member of the Board elected by the members present from among their number. Section 17(7) Matters before the Board shall be decided by a majority of...

Section 18. Tracing, forfeiture and recovery of assets Section Where the Office has conducted criminal proceedings under any law in force and as a result of the proceedings a person becomes liable to pay an amount to the Government or property is forfeited to the Government under a court order, the Office shall take any further proceedings or steps that may be required to recover the amount or enforce the recovery, forfeiture or order.

Section 19. Prosecution counsel Section There shall be appointed by the Office such number of prosecution counsel as may be necessary for the proper and efficient provision of prosecution services.

Section 20. Prosecution assistants Section 20(1) Pursuant to Article 157(9) of the Constitution the Director may, by a notice in a Gazette , delegate any powers or functions conferred upon the office to a prosecution assistant. Section 20(2)(a) appointed as such by the Director in accordance with subsection (1); Section 20(2)(b) not qualified to be appointed as prosecution counsel but with relevant experience and expertise; and Section 20(2)(c) currently serving in the National Police Service and exercising prosecutorial powers as is, was or shall be delegated by the Director. Section 20(3) A prosecution assistant shall exercise delegated authority under this section to the extent as shall be determined by the Director in the notice of appointment.

Section 21. Practicing certificate Section The Director and a prosecution counsel appointed by the Director under this Act shall, for the purposes of exercising the powers or performing the functions of the Office, be entitled to practice as a legal practitioner as if he or she were holding an unrestricted practising certificate issued under the law for the time being regulating legal practice in Kenya.

Section 22. Delegation Section 22(1) The Director may subject to such conditions as he or she may impose in writing, delegate any power and assign any duty conferred on him or her in terms of this Act or any other written law to a subordinate officer. Section 22(2) Any power exercised or functions performed under this Act by a prosecution counsel or a member of staff of the Office shall be deemed to have been exercised or performed by the Director. Section 22(3) A delegation or assignment under subsection (1) does not prevent the Director from exercising the power in question himself or herself. Section 22(4)(a) shall be subject to any conditions the Director may impose; Section 22(4)(b) shall not divest the Director of the responsibility concerning the exercise of the powers or the performance of the duty delegated; and Section 22(4)(c) may be withdrawn, and any decision made by the person so delegated to may be withdrawn or amended by the Director.

Section 23. Control of prosecutions Section decide to prosecute or not to prosecute in relation to an offence;

Section 24. Takeover of criminal proceedings Section 24(1) Subject to the Constitution, the Director may take over a prosecution or appeal for the purposes of this Act by giving notice in writing to the Magistrate before whom the matters is being heard or the Registrar and the affected persons, indicating the Director’s intention to take over the matter. Section 24(2) Where the Director has taken over a matter pursuant to subsection (1), the Director shall become the prosecutor, appellant or respondent, as the case may be in such proceedings.

Section 25. Discontinuing of criminal proceedings Section 25(1) The Director may, with the permission of the court, discontinue a prosecution commenced by the Director, any person or authority at any stage before delivery of judgement. Section 25(2) Pending the permission by the court in accordance with subsection (1), the Director may apply orally or in writing to the court for a stay of proceedings with a view that such proceedings may be taken over by the Director to prevent and avoid abuse of the legal process and to protect the public interest. Section 25(3) Nothing in this section prevents the Director from continuing to conduct proceedings in the name of the person or authority that instituted those proceedings.

Section 26. Duty of disclosure Section 26(1) The Inspector-General or any other investigative agency shall disclose to the Director all material facts and information collected in the course of an investigation that may be reasonably expected to assist the case of prosecution or defence. Section 26(2)(a) conduct thorough investigations; Section 26(2)(b) compile all evidence; and Section 26(2)(c) submit all relevant information in relation to any investigation undertaken. Section 26(3)(a) include privileged information; and Section 26(3)(b) continue until the determination of the case. Section 26(4) In this section "privileged information" means any information or material that would be exempted from production in court or disclosure, by any written law or for any other lawful or justifiable reason.

Section 27. Duty to cooperate Section 27(1)(a) respond to any inquiry by the Director; Section 27(1)(b) comply with the lawful directions of the Director; and Section 27(1)(c) furnish the Director with such information as the Director may require to discharge his or her functions under the Constitution, this Act or any other written law. Section 27(2) Any public officer or State officer who contravenes subsection (1) shall be liable on conviction, to imprisonment for a term not exceeding one year or to a fine not exceeding three hundred thousand shillings or to both. Section 27(3) In addition to the penalty prescribed under subsection (2), the public officer or State officer may be subjected to the relevant disciplinary procedures.

Section 28. Private prosecutions Section 28(1) Notwithstanding any provision under this Act or any other written law, any person may institute private prosecution. Section 28(2) Any person who institutes private prosecution shall, within thirty days of instituting such proceeding, notify the Director in writing of such prosecution. Section 28(3) In accordance with Article 157 of the Constitution and this Act, the Director may undertake, takeover or discontinue any private prosecution.

Section 29. Power to appoint Public Prosecutors Section 29(1) The Director may appoint any qualified person to prosecute on his or her behalf. Section 29(2) A person appointed under subsection (1) shall be known as a public prosecutor. Section 29(3) A public prosecutor appointed under subsection (1) shall be responsible to the Director and shall be bound to comply with all guidelines and instructions issued by the Director in respect of prosecutions.

Section 30. Appointment of private legal practitioners as public prosecutors Section 30(1) The Director may from time to time, and as need may arises, engage the services of a qualified private legal practitioner to assist in the discharge of his mandate. Section 30(2) In engaging the services of a private legal practitioner under subsection (1), the Director shall comply with the relevant public procurement law and regulations.

Section 31. Proceedings where the Director or the Office is a party Section any other officer subordinate to him; or

Section 32. Director may require information Section 32(1) Without prejudice to the provisions of any other law, the Director may, in accordance with subsection (2), issue a directive in writing to any officer for purposes of obtaining information relevant to an investigation or prosecution of an offence. Section 32(2)(a) any specified information, document or material or a specified kind of information, document or material, or for all relevant information, documents and material, to be furnished to the Director; or Section 32(2)(b) the provision of assistance, including the carrying out of an investigation or further investigation of a matter, in relation to the offence or suspected offence. Section 32(3) An officer to whom a directive is made under this section shall comply with it and keep the Director informed of the progress made in complying with the directive. Section 32(4)(a) the Inspector General or a member of the National Police Service, Prisons Service or any other investigative agency of the Government; Section 32(4)(b) a person employed by an authority or corporation established under any law of Kenya and authorized by or under the law to investigate or to make a com...

Section 33. Composition of the staff of the Office Section 33(1)(a) regional and ethnic diversity of the people of Kenya; Section 33(1)(b) gender equity; and Section 33(1)(c) persons with disability. Section 33(2) The Director shall comply with the values and principles under the Constitution in the appointment of members of staff of the Office.

Section 34. Qualifications for appointment as prosecution counsel Section an Advocate of the High Court of Kenya; or

Section 35. Conditions of service of the Director Section The remuneration, allowances and other terms and conditions of service of the Director shall be determined by the Salaries and Remuneration Commission established under Article 230 of the Constitution.

Section 36. Remuneration and conditions of service of staff of the Office Section 36(1) The members of staff of the Office appointed under this Act shall serve on such terms as the Director may, on the advice of the Salaries and Remuneration Commission, determine. Section 36(2) The terms and conditions determined under this section shall commence not later than a year after the commencement of this Act. Section 36(3) The publication of the terms, salaries and conditions of service shall be made as soon as possible after the commencement of this Act and thereafter such a publication shall be issued if circumstances, including any revision and adjustment of salaries and allowances of the Director, Judges, Magistrates and other judicial staff since the latest revision and adjustment of salaries of Director or Prosecution Counsel, so justify. Section 36(4) The remuneration and benefits payable to the Director, Prosecution Counsel and other Staff shall not be varied or reviewed to their disadvantage and the retirement benefits shall not be varied to their disadvantage during their lifetime.

Section 37. Staff of the Office Section There shall be such professional, technical and administrative officers and support staff as may be appointed by the Office under this Act.

Section 38. Secondment of staff Section 38(1) A public officer may be seconded to the Office as the Office may, in consultation with the Public Service Commission, determine, for specific periods of time and on such terms and conditions as may be agreed upon between the Office and the Public Service Commission. Section 38(2) The Office may, upon request, second any officer of the Office to any requesting agency, organization or institution on such terms and conditions as the Office in consultation with the agency to which the person is being seconded to agree upon. Section 38(3) A public officer seconded to the Office shall, during the period of secondment, be considered an officer of the Office and shall be subject only to the direction and control of the Director.

Section 39. Code of conduct Section 39(1) The Office shall within one year from the date of coming into effect of this Act issue and maintain a code of conduct to regulate the conduct of persons subject to this Act. Section 39(2) A breach of the code of conduct referred to under subsection (1) shall be treated as misconduct by an officer and punishable with equal measure as a breach of a provision under this Act.

Section 40. Funds of the Office Section 40(1) Parliament shall allocate adequate funds to the Office to enable the Office perform its functions under the Constitution, this Act and any other written law and the budget shall be a separate vote in accordance with Article 249(3) of the Constitution. Section 40(2)(a) monies provided for by Parliament for the purposes of the Office; Section 40(2)(b) such monies or assets as may accrue to the Office in the course of the exercise of its powers or the performance of its functions under this Act; and Section 40(2)(c) all monies from any other source provided, donated or granted to the Office towards the achievement of the objects of the Office. Section 40(3) The Office shall not accept any grant, gift, donation or bequests made on any condition that the Office performs any function or discharges any duty or obligation other than duties under the Constitution or this Act. Section 40(4) The Office shall disclose any grants, gifts, donations or bequests made to it in each financial year. Section 40(5) The Director, subject to the law, shall be charged with the responsibility of accounting for State monies received or paid out or on account of...

Section 41. Bank accounts Section The Office shall open and maintain such bank accounts as are necessary for the exercise of the functions of the Office.

Section 42. Financial year Section the period beginning on the day the Act comes into effect and ending on the following thirtieth June; or

Section 43. Financial estimates Section 43(1) At least three months before the commencement of each financial year, the Office shall cause to be prepared, reviewed and forwarded to the National Assembly estimates of the revenue and expenditure of the Office for that year for tabling and approval in the National Assembly. Section 43(2)(a) the payment of the salaries, allowances and other charges in respect of the staff of the Office; Section 43(2)(b) the payment of pensions, gratuities and other charges and in respect of benefits which are payable out of the funds of the Office; Section 43(2)(c) the maintenance of the buildings and grounds of the Office; Section 43(2)(d) the funding of training, research and development of activities of the Office; Section 43(2)(e) the creation of such funds to meet future or contingent liabilities in respect of benefits, insurance or replacement of buildings or installations, equipment and in respect of such other matters as the Office may think fit. Section 43(3) The annual estimates shall make provision for all estimated expenditure of the Office for the financial year to which they relate, including a reserve fund to provide for contingency in t...

Section 44. Accounts and audit Section 44(1) The Office shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Office. Section 44(2)(a) statement of the income and expenditure of the Office during that year; and Section 44(2)(b) statement of the assets and liabilities of the Office on the last day of that financial year. Section 44(3) The annual accounts of the Office shall be prepared, audited and reported upon in accordance with the provisions of the Constitution and the Public Audit Act. Section 44(4) For avoidance of doubt, laws and regulations relating to Public Financial Management shall apply to the operations of the Fund.

Section 45. Prosecutions Fund Section 45(1)(a) enhancement of the operational capacity of the Office; Section 45(1)(b) the welfare of the personnel of the Office; and Section 45(1)(c) any activity approved by the Office. Section 45(2)(a) allocations by National Assembly; Section 45(2)(b) grants and donations; Section 45(2)(c) any other source as may be approved from time to time by the Director. Section 45(3) The Prosecutions Fund shall be administered and managed in accordance with the law regulating matters of public finance.

Section 46. Prejudicial disclosure Section 46(1)(a) be prejudicial to an investigation; Section 46(1)(b) be prejudicial to prosecution; Section 46(1)(c) place human life or safety of a person at risk; or Section 46(1)(d) cause some other form of severe prejudice to any person, Section 46(2) The withholding of any information or material under subsection (1) shall be reasonable and justifiable in an open and democratic society. Section 46(3) The Director shall, upon request and in writing, provide reasons for withholding the information or material referred to under subsection (1).

Section 47. Judicial notice Section the official signature of a person who is or has been the Director or Deputy Director;

Section 48. The common seal of the Office Section 48(1) The common seal of the Office shall be such device as may be determined by the Director. Section 48(2) The common seal of the Office shall be kept in such custody as the Director shall direct and shall not be used except on the order of the Director. Section 48(3) The common seal of the Office when affixed to a document and duly authenticated shall be judicially and officially noticed and unless the contrary is proved, any necessary order or authorization of the Office under this section shall be presumed to have been duly given.

Section 49. Social security scheme Section The Office shall, with the approval of the Cabinet Secretary responsible for finance, establish a suitable social security scheme for the staff of the Office.

Section 50. Regulations Section 50(1) The Director may make regulations generally for the better carrying out of the provisions of this Act. Section 50(2)(a) the procedure for cooperation with the relevant investigative agencies; Section 50(2)(b) guidance and regulation in the submission of information and carrying out of investigations; Section 50(2)(c) specification of cases or classes of cases to be handled by prosecution counsel or prosecution assistants; Section 50(2)(d) classification of and prosecution of specified offences or class of offences; and Section 50(2)(e) conditions to be complied with in prosecuting. Section 50(3) The Director may by regulation upon consultation with the Inspector-General and other investigative agencies, issue guidelines on cooperation and collaboration in the investigation of crimes.