Penal Code

Section 1. Short title Section This Act may be cited as the Penal Code and is hereinafter referred to as "this Code".

Section 2. Saving Section the liability, trial or punishment of a person for an offence against the common law or against any other law in force in Kenya other than this Code; or

Section 3.[Deleted by ActNo. 5 of 2003, s. 2.]

Section 4. Interpretation Section any office the holder of which is appointed or removed by the President or by any public commission;

Section 5. Jurisdiction of local courts Section The jurisdiction of the courts of Kenya for the purposes of this Code extends to every place within Kenya, including territorial waters.[ActNo. 24 of 1967, Sch.]

Section 6. Offences committed partly within and partly beyond the jurisdiction Section When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.

Section 7. Ignorance of law Section Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.

Section 8.Bona fideclaim of right Section A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.

Section 9. Intention and motive Section 9(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Section 9(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Section 9(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

Section 10. Mistake of fact Section 10(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. Section 10(2) The operation of this section may be excluded by the express or implied provisions of the law relating to the subject.

Section 11. Presumption of sanity Section Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

Section 12. Insanity Section A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.

Section 13. Intoxication Section 13(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge. Section 13(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and— Section 13(2)(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or Section 13(2)(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. Section 13(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply. Section 13(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. Section 13(5) For t...

Section 14. Immature age Section 14(1) A person under the age of eight years is not criminally responsible for any act or omission. Section 14(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. Section 14(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.[ActNo. 8 of 1963, s. 81.]

Section 15. Judicial officers Section Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.

Section 16. Compulsion Section A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence, nor do any threats excuse the causing of, or the attempt to cause, death.[ActNo. 54 of 1960, s. 3, ActNo. 8 of 1963, s. 81, ActNo. 19 of 1964, s. 2.]

Section 17. Defence of person or property Section Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.

Section 18. Use of force in effecting arrest Section Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.

Section 19. Compulsion by husband Section A married woman is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

Section 20. Principal offenders Section 20(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say— Section 20(1)(a) every person who actually does the act or makes the omission which constitutes the offence; Section 20(1)(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; Section 20(1)(c) every person who aids or abets another person in committing the offence; Section 20(1)(d) any person who counsels or procures any other person to commit the offence, Section 20(2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. Section 20(3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made t...

Section 21. Joint offenders in prosecution of common purpose Section When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

Section 22. Counselling another to commit offence Section 22(1) When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. Section 22(2) In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

Section 23. Offences by corporations, societies, etc. Section Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.[ActNo. 54 of 1960, s. 5.]

Section 24. Different kinds of punishments Section death;

Section 25. Sentence of death Section 25(1) Where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorized by law. Section 25(2) * Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.*Power delegated to the Cabinet Secretary and to the Permanent Secretary of the Ministry for the time being responsible for Prisons (L.N. 579/1963). Section 25(3) When a person has been sentenced to be detained during the President’s pleasure under subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit...

Section 26. Imprisonment Section 26(1) A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable. Section 26(2) Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. Section 26(3) A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:Provided that— Section 26(3)(i) where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment; Section 26(3)(ii) deleted by ActNo. 5 of 2003, s. 4.

Section 27.[Deleted by ActNo. 5 of 2003, s. 5.]

Section 28. Fines Section 28(1) Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply— Section 28(1)(a) where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive; Section 28(1)(b) in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the court; Section 28(1)(c) in the case of an offence punishable with imprisonment as well as a fine in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion— Section 28(1)(c) direct by its sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and also Section 28(1)(c)(i) direct by i...

Section 29. Forfeiture Section 29(1) When any person is convicted of an offence under any of the following sections, namely, sections118and119, the court may, in addition to or in lieu of any penalty which may be imposed, order the forfeiture of any property which has passed in connexion with the commission of the offence or, if the property cannot be forfeited or cannot be found, of such sum as the court shall assess as the value of the property; and any property or sum so forfeited shall be dealt with in such manner as the Attorney-General may direct. Section 29(2) Payment of any sum so ordered to be forfeited may be enforced in the same manner and subject to the same incidents as in the case of the payment of a fine.[ActNo. 33 of 1956, s. 13, L.N. 299/1956, L.N. 172/1960, ActNo. 24 of 1967, Sch.]

Section 30. Suspension or forfeiture of right to carry on business Section 30(1) Where a person is convicted of any offence mentioned in Chapter XXXI and the offence arose out of, or was committed in the course of, any trade or business, whether carried on by such person or not, the court by which the conviction is recorded may, in addition to any other penalty which it may impose, make an order, having effect for such period as the court may think fit, prohibiting such person from carrying on, or being concerned or employed, directly or indirectly, in carrying on, any such trade or business or any branch of any such trade or business of the same or similar character. Section 30(2) Any person who fails to comply with an order made under subsection (1) is guilty of an offence and is liable to a fine not exceeding two thousand shillings or to imprisonment for a term not exceeding six months or to both.[ActNo. 40 of 1952, s. 2.]

Section 31. Compensation Section Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence, and the compensation may be either in addition to or in substitution for any other punishment.

Section 32. Costs Section Subject to the limitations imposed by section 171 of the Criminal Procedure Code (Cap. 75), a court may order any person convicted of an offence to pay the costs of and incidental to the prosecution or any part thereof.

Section 33. Security for keeping the peace Section A person convicted of an offence not punishable with death may, instead of, or in addition to, any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, and may be ordered to be imprisoned until such recognizance, with sureties, if so directed, is entered into; but so that the imprisonment for not entering into the recognizance shall not extend for a term longer than one year, and shall not, together with the fixed term of imprisonment, if any, extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

Section 34. Recognizances Section 34(1) If at any time the court which convicted an offender is satisfied that he has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. Section 34(2) An offender when apprehended on any such warrant shall be brought forthwith before the court by which the warrant was issued, and the court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned for his appearing for hearing or sentence; and the court may, after hearing the case, pass sentence. Section 34(3) The provisions of sections 128, 129 and 131 of the Criminal Procedure Code (Cap. 75) shall apply mutatis mutandis to recognizances taken undersection 33of this Code.[ActNo. 22 of 1959, s. 30(2).]

Section 35. Absolute and conditional discharge Section 35(1) Where a court by or before which a person is convicted of an offence is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act (Cap. 64) is not appropriate, the court may make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein. Section 35(2) Before making an order discharging a person subject to the condition referred to in subsection (1), the court shall explain to the offender in ordinary language that if he commits another offence during the period of conditional discharge he shall be liable to be sentenced for the original offence. Section 35(3) Where an order discharging an offender under this section is made, the court may order him to pay the whole, or any part, of the costs of and incidental to the prosecution, and of any compensation adjudged undersection 31.[A...

Section 36. General punishment for misdemeanours Section When in this Code no punishment is specially provided for any misdemeanour, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.

Section 37. Sentences when cumulative Section Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, other than a sentence of death, which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof:Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) ofsection 28or of any part thereof.[ActNo. 5 of 2003, s. 7.]

Section 38. Sentence on escaped convict Section if of death, or fine, shall, subject to the provisions of this Code, take effect immediately;

Section 39. Cancellation or suspension of certificate of competency Section 39(1) Where any person has been convicted under this Code of an offence connected with the driving of any vehicle in respect of which a certificate of competency is required, the court before which the person is convicted may in addition to or in substitution for any other punishment— Section 39(1)(a) if the person convicted holds a certificate of competency, suspend the certificate for such time as the court thinks fit, or cancel the certificate and declare the person convicted disqualified for obtaining another certificate either permanently or for a stated period, and shall cause particulars of the conviction and of any order of the court made under this section to be endorsed upon the certificate, and shall also cause a copy of these particulars and of the order to be sent to the Inspector-General of Police, who shall endorse them on the duplicate certificate in his custody; or Section 39(1)(b) if the person convicted does not hold a certificate of competency, declare him disqualified for obtaining such a certificate for such time as the court thinks fit. Section 39(2) Any person so convicted as aforesa...

Section 40. Treason Section 40(1) Any person who, owing allegiance to the Republic, in Kenya or elsewhere— Section 40(1)(a) compasses, imagines, invents, devises or intends— Section 40(1)(a) the death, maiming or wounding, or the imprisonment or restraint, of the President; or Section 40(1)(a)(i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or Section 40(1)(a)(ii) the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or Section 40(1)(a)(iii) the overthrow by unlawful means of the Government; and Section 40(1)(b) expresses, utters or declares any such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed, is guilty of the offence of treason. Section 40(2) Any person who, owing allegiance to the Republic— Section 40(2)(a) levies war in Kenya against the Republic; or Section 40(2)(b) is adherent to the enemies of the Republic, or gives them aid or comfort, in Kenya or elsewhere; or Section 40(2)(c) instigates whether in Kenya or el...

Section 41.[Deleted by ActNo. 24 of 1967, s. 3.]

Section 42. Concealment of treason Section becomes an accessory after the fact to treason; or

Section 43. Treasonable felony Section Any person who, not owing allegiance to the Republic, in Kenya or elsewhere, commits any act or combination of acts which, if it were committed by a person who owed such allegiance, would amount to the offence of treason undersection 40, is guilty of a felony and is liable to imprisonment for life.[ActNo. 24 of 1967, s. 4.]

Section 44. Promoting warlike undertaking Section Any person who, without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by or against any person or body or group of persons in Kenya, is guilty of a felony and is liable to imprisonment for life.[ActNo. 24 of 1967, s. 4.]

Section 45. Provisions as to trial for treason, etc. Section 45(1) A person cannot be tried for treason, or for any of the felonies defined in sections42,43,43Aand44, unless the prosecution is commenced within two years after the offence is committed. Section 45(2) No person charged with treason, or with any of such felonies, may be convicted, except on his own plea of guilty, or on the evidence in open court of two witnesses at the least to one overt act of the kind of treason or felony alleged, or the evidence of one witness to one overt act and one other witness to another overt act of the same kind of treason or felony. Section 45(2A) If the facts or matters alleged in a charge for any of such felonies amount in law to treason, and if the facts or matters proved at the trial of the person charged amount in law to treason, such person shall not, by reason thereof, be entitled to be acquitted of the felony; but the person tried for the felony shall not afterwards be prosecuted for treason upon the same facts. Section 45(2B) A person charged with treason or with any of such felonies who is in Kenya may, whether or not the offence was committed in Kenya, be taken in custody to any...

Section 46. Dissuasion from enlistment Section comments or criticisms of the policy of the Government in relation to such forces as aforesaid made in good faith; or

Section 47. Inciting to mutiny Section to seduce any member of the disciplined forces or any police officer from his duty or allegiance; or

Section 48. Aiding, etc., to mutiny, or inciting sedition or disobedience Section aids or abets, or is accessory to, any act of mutiny by, or

Section 49. Inducing desertion Section procures or persuades or attempts to procure or persuade to desert; or

Section 50. Aiding prisoners of war to escape Section knowingly and advisedly aids an alien enemy, being a prisoner of war in Kenya, whether the prisoner is confined in a prison or elsewhere or is suffered to be at large on his parole, to escape from his prison or place of confinement, or, if he is at large on his parole, to escape from Kenya, is guilty of a felony and is liable to imprisonment for life;