Protection Against Domestic Violence Act

Section 1. Short title. Section This Act may be cited as the Protection Against Domestic Violence Act.

Section 2. Interpretation. Section a person who applies for a protection order under this Act; or

Section 3. Meaning of domestic violence. Section 3(2) "Domestic violence", in relation to any person, means violence against that person, or threat of violence or of imminent danger to that person, by any other person with whom that person is, or has been, in a domestic relationship. Section 3(3)(a) causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship; or Section 3(3)(b) puts the child or allows the child to be put at risk of seeing or hearing the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship, but the person who suffers the abuse shall not be regarded as having caused or allowed the child to see or hear the abuse or as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse. Section 3(4)(a) a single act may amount to abuse; and Section 3(4)(b) a number of acts that form part of a pattern of behaviour may amount to abuse, even when some or all of those acts, when considered in isolation, may appear to be minor or trivial. Section 3(5) Behaviour may be psychological abuse for the purposes of subsectio...

Section 4. Meaning of domestic relationship. Section 4(1)(a) is married to that other person; Section 4(1)(b) has previously been married to that other person; Section 4(1)(c) is living in the same household with that person; Section 4(1)(d) has been in a marriage with the other person which has been dissolved or declared null; Section 4(1)(e) is a family member of that other person; Section 4(1)(f) is or has been engaged to get married to that person; Section 4(1)(g) has a child with that other person; or Section 4(1)(h) has a close personal relationship with the other person. Section 4(2)(a) a landlord-tenant relationship; Section 4(2)(a)(i) a landlord-tenant relationship; Section 4(2)(a)(ii) an employer-employee relationship; or Section 4(2)(a)(iii) an employee-employer relationship, with that other person; and Section 4(2)(b) they occupy a common dwelling house (whether or not other people also occupy that dwelling house). Section 4(3)(a) an employer-employee relationship; or Section 4(3)(b) an employee-employer relationship with that other person. Section 4(4)(a) the amount of time the persons spend together; Section 4(4)(a)(i) the amount of time the persons spend together; Se...

Section 5. Meaning of family member. Section 5(1)(a) a spouse; Section 5(1)(b) a child including an adopted child, a step-child and a foster child; Section 5(1)(c) an adult son or daughter; Section 5(1)(d) a parent; Section 5(1)(e) a sibling; or Section 5(1)(f) any other relative of that person who, in the circumstances of the case, should be regarded as a member of the family. Section 5(2)(a) a father, mother, grandfather, grandmother, stepmother, stepfather, father-in-law or mother-in-law; Section 5(2)(b) an uncle, aunt, uncle-in-law or aunt-in-law of that person; Section 5(2)(c) a nephew or niece of that person; or Section 5(2)(d) a cousin of that person.

Section 6. Duties of police officers in relation to domestic violence. Section 6(1)(a) advise the complainant of all relief measures available to the complainant, including access to shelter, medical assistance or they shall assist the complainant in any other suitable way; and Section 6(1)(b) advise the complainant of the complainant’s right to apply for relief under this Act and how the complainant may lodge a criminal complaint. Section 6(2) Where the complainant so desires, the person to whom the complainant makes a statement may be a person of the same sex as the complainant. Section 6(3) The provisions of this section shall not limit the power of a police officer to enter any premises under this Act or any other law. Section 6(4)(a) training police officers to deal with family related matters or domestic violence; Section 6(4)(b) facilitating the reporting process so that complainants may report to the police without fear or otherwise; and Section 6(4)(c) ensuring that complaints are processed expediently and efficiently.

Section 7. Information on offences involving domestic violence. Section 7(1) Any person who reasonably suspects that an offence of domestic violence is being or has been committed may give such information to the police officers or any other person in authority. Section 7(2) Any person who attacks, intimidates or harms a person who reports domestic violence commits an offence. Section 7(3) No action or proceeding, including disciplinary action, may be instituted or maintained against a person in respect of the disclosure of information made by the person to a person named under subsection (1). Section 7(4) Subsection (3) does not apply to any person who provides false information maliciously intended to injure another person. Section 7(5) In any proceeding under this Act, no witness shall be required to identify, or provide information that might lead to the identification of, a person who assisted or disclosed information about domestic violence. Section 7(6) In any proceedings under this Act, the court may order that information that identifies, or might lead to the identification of a person who assisted or disclosed the information concerning any violence is removed or conceale...

Section 8. Application for protection order. Section 8(1) A person who is in a domestic relationship with another person may apply to the Court for a protection order in respect of that other person. Section 8(2) Where the person who is eligible to apply for a protection order is a child, the application may be made by a representative in accordance with section 9 (2). Section 8(3) Where the person who is eligible to apply for a protection order is a person to whom section 10 applies, the application may be made by an applicant's representative in accordance with that section. Section 8(4) An applicant's representative may, with the leave of the court, with or without the consent of the applicant, make an application for a protection order or any other order the court considers fit to award. Section 8(5) An applicant's representative who makes an application under subsection (4) shall seek the leave of the court together with such other orders as the court deems fit to award in the circumstances. Section 8(6) Where the person who is eligible to apply for a protection order is not a child but is unable, in the circumstances specified in section 10 (1) (b), to make the application pe...

Section 9. Application by children. Section 9(1) Subject to subsection (2), a child may make an application for a protection order under this Act. Section 9(2)(a) parent or guardian; Section 9(2)(b) a children officer; Section 9(2)(c) the Director of Children's Services: Section 9(2)(d) a police officer; Section 9(2)(e) a probation officer; Section 9(2)(f) a conciliator; Section 9(2)(g) any other person with the leave of the court; Section 9(2)(h) social welfare officer; Section 9(2)(i) a church or any other religious institution; or Section 9(2)(i)(i) a church or any other religious institution; or Section 9(2)(i)(ii) a non-governmental organization concerned with the welfare of victims of domestic violence; or Section 9(2)(j) a relative or neighbour. Section 9(3) Where an application has been made under subsection (2) by a person, other than a parent or guardian of a child, no orders shall be issued by the court unless the parent or guardian of the child has been served or the court is satisfied that reasonable efforts to serve such parent or guardian have failed. Section 9(4) Nothing in subsection (2) prevents a child on whose behalf an application for a protection order is made...

Section 10. Application by person lacking capacity. Section 10(1)(a) lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or Section 10(1)(b) has the capacity to understand the nature, and foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters. Section 10(2)(a) a police officer; Section 10(2)(b) an applicant's representative; or Section 10(2)(c) any other person with the leave of the court.

Section 11. Application on behalf of certain persons. Section 11(1) This section applies to a person entitled to a protection order who is incapable of applying for a protection order and for whom it is necessary to make a protection order. Section 11(2) Any person may apply to the court to be appointed as a representative of the person referred to in subsection (1) for the purposes of applying for a protection order. Section 11(3)(a) the representative has reasonably ascertained the wishes of the victim; Section 11(3)(b) the victim consents to being represented; Section 11(3)(c) the appointment of the representative is in the best interest of the victim; Section 11(3)(d) the representative accepts his appointment in writing; and Section 11(3)(e) there is no conflict of interest between the victim and the representative.

Section 12. Application without notice for protection order. Section 12(1)(a) a risk of harm; or Section 12(1)(b) undue hardship to the applicant or child of the applicant's family. Section 12(2)(a) the perception of the applicant or a child of the applicant's family, of the nature and seriousness of the respondent's behaviour; and Section 12(2)(b) the effects of that behaviour on the applicant or a child of the applicant's family. Section 12(3) An interim order may, where appropriate, contain any direction, prohibition or award which may be contained in a protection order issued under section 19 . Section 12(4) Whenever a court issues an interim protection order, the court shall issue a summons to appear in respect of the respondent which shall be attached to the order. Section 12(5) Where an application is made under this section and the court is satisfied prima facie that the respondent has committed, is committing or threatening to commit an act of domestic violence but that the circumstances do not justify or require the issue of an interim protection order, the court may issue a notice requiring the respondent to show cause why a protection order should not be made: Provided...

Section 13. Power to make protection order. Section 13(1)(a) the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant's family or both; and Section 13(1)(b) the making of an order is necessary for the protection of the applicant or a child of the applicant's family or both. Section 13(2) For the purpose of subsection (1)(a), a respondent who aids or abets another person to engage in behaviour that, if engaged in by the respondent, would amount to domestic violence against the applicant or a child of the applicant's family or both, shall be regarded as having engaged in that behaviour personally. Section 13(3) Without limiting section 3 (4)(b), the matters that the court may consider in determining, for the purpose of subsection (1) (b), whether the making of an order is necessary for the protection of the applicant or a child of the applicant's family, or both where some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, are whether the behaviour forms part of pattern of behaviour in respect of which the applicant or a child of th...

Section 14. Counselling. Section 14(1) The Court may, taking into account the circumstances of each case, direct the parties to participate in counselling and conciliation programmes or any other programme that is acceptable to the Court. Section 14(2) The counselling provided shall be aimed at ensuring respect for the law prohibiting domestic violence, the promotion of a protective environment for all within the family and the promotion of harmonious domestic relations between and among the parties.

Section 15. Existence of other proceeding not to preclude granting of protection order. Section 15(1) A court shall not decline to make a protection order merely because of the existence of other proceedings (including, but not limited to, proceedings relating to custody of, or access to, a minor) between or relating to the parties, whether or not those proceedings also relate to any other person. Section 15(2) Despite the provisions of subsection (1), an application for a protection order shall not be a bar to criminal proceedings against a respondent.

Section 16. Protection of dependants. Section 16(1) Where the court makes a protection order, the order shall apply for the benefit of any child of the applicant's family. Section 16(2) Subject to subsection (3), where the court makes a protection order, it may direct that the order also apply for the benefit of a particular person with whom the applicant has a domestic relationship. Section 16(3)(a) the respondent is engaging, or has engaged, in behaviour that, if the respondent and the person were or, as the case may be, had been in a domestic relationship, would amount to domestic violence against the person; Section 16(3)(b) the respondent's behaviour towards the person is due, in whole or in part, to the applicant's domestic relationship with the person; Section 16(3)(c) the making of a direction under this section is necessary for the protection of the person; and Section 16(3)(d) where practicable, the person consents to the direction being made. Section 16(4) Section 12 (2) and (5) shall apply, with the necessary modifications, in respect of an application for a direction pursuant to subsection (2).

Section 17. Protection from co-respondents. Section 17(1) Subject to subsection (2), where the court makes a protection order against the respondent, the court may also direct that the order apply against a person who aids and abets the respondent. Section 17(2) Section 12 (2) to (5) shall apply, with the necessary modification, in respect of an application for a direction pursuant to subsection (1).

Section 18. Mutual orders. Section Nothing in this Act shall be construed as preventing the court, in the course of determining an application, from granting a protection order, in favour of the respondent even though no application has been made by the respondent.

Section 19. Contents of protection order. Section 19(1)(a) physically or sexually abuse or threaten to abuse the protected person; Section 19(1)(b) damage, or threaten to damage, any property of the protected person; Section 19(1)(c) engage, or threaten to engage, in behaviour including intimidation or harassment, which amounts to psychological abuse of the protected person; Section 19(1)(d) encourage any person to engage in behaviour against the protected person where the behaviour, if engaged in by the respondent would be prohibited by the order; Section 19(1)(e) engage, or threaten to engage, in behaviour including intimidation, harassment or stalking which amounts to emotional, verbal or psychological abuse of the protected person; Section 19(1)(f) engage, or threaten to engage, in economic abuse of the protected person; or Section 19(1)(g) engage, or threaten to engage, in cultural or customary rites or practices that abuse the protected person. Section 19(2)(a) watch, loiter near, or prevent or hinder access to or from, the protected person's place of residence, business, employment, educational institution, or other place that the protected person visits often; Section 19(2)...

Section 20. Further provisions relating to prohibitions of contact. Section 20(1) The contents of a protection order specified in section 19 (2) in this section referred to as "the non-contact condition" shall have effect except where the protected person and the respondent are with the express, voluntary consent of the protected person living in the same dwelling house, taking into account the vulnerability relating to the protected person. Section 20(2) The non-contact condition shall automatically be suspended for any period during which the protected person and the respondent, with the express, free and voluntary consent of the protected person, live in the same dwelling house. Section 20(3) Where the non-contact condition is suspended in accordance with subsection (2), and the protected person subsequently withdraws his or her consent to the respondent living in the same dwelling house then (unless the protection order has been sooner discharged) the non-contact conditions shall automatically revive. Section 20(4)(a) become suspended in accordance with subsection (2) on one or more occasions; or Section 20(4)(b) revive in accordance with subsection (3) on one or more occasions...

Section 21. Duration of protection order. Section A protection order shall remain in force for such period as may be specified by the court and may be reviewed, from time to time, depending on the circumstances.

Section 22. Breach of protection order. Section A respondent who has been served with a copy of a protection order and who contravenes the order in any respect, commits an offence and is liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a period not exceeding twelve months, or to both.

Section 23. Arrest for breach of protection order. Section 23(1) A police officer may, without warrant, if he or she believes on reasonable ground that any person has committed an offence under section 22 , arrest and detain the person. Section 23(2)(a) the risk to the safety of the protected person or property; Section 23(2)(b) the seriousness of the act that constitutes a breach; and Section 23(2)(c) the time that has lapsed since the alleged breach was committed.

Section 24. Application by victims of domestic violence. Section 24(1) Jurisdiction for any proceedings under this Act shall be vested in the Resident Magistrates' Courts. Section 24(2)(a) be supported by the affidavit of any person who can depone to matters which are relevant to the application; and Section 24(2)(b) require the police, a social worker, probation officer, medical practitioner, children officer or other appropriate person or authority to investigate the acts or omissions of the domestic violence and forward findings directly to court as may be directed by the Court. Section 24(3)(a) reliefs available under this Act; Section 24(3)(b) effect of any order which may be granted and the means provided by the law for its enforcement under this Act; Section 24(3)(c) right to lodge a criminal complaint against the respondent if a criminal offence has been committed by the respondent; and Section 24(3)(d) right to claim compensation for any loss suffered or injury caused by any act of domestic violence.

Section 25. Applications by other parties. Section Where the application for a protection order is made by a person other than the actual victim of domestic violence, the person making the application shall, as soon as reasonably practicable after the making of the application, cause a copy thereof to be served on the victim personally or, where the victim is a child or physically, mentally, intellectually or sensory challenged person, on the parent or guardian of the child or such challenged person.

Section 26. Procedure in third party applications. Section In any case where an application for a protection order is made by a person, other than the actual victim of domestic violence, the court shall not commence or continue the hearing of the application if the victim, or if the victim is a child or a physically, mentally, intellectually or sensory challenged person, the person referred to under section 10 (2), objects to the application being heard and determined.

Section 27. Explanation of order. Section 27(1)(a) the purpose, term and effect of the proposed order; Section 27(1)(b) the consequences that may follow if the respondent fails to comply with the terms of the proposed order; and Section 27(1)(c) the means by which the proposed order may be varied or revoked. Section 27(2) No order under subsection (1) shall be invalid for the reason only that the court did not explain any particular matter contained in the order to the respondent.

Section 28. Persons who may be present during proceedings. Section 28(1)(a) an officer of the court; Section 28(1)(b) parties to the proceedings and their advocates, if any; Section 28(1)(c) a representative, if any; Section 28(1)(d) witnesses; and Section 28(1)(e) any other person whom the court permits to be present. Section 28(2) A witness shall leave the courtroom if so directed by the court. Section 28(3) Nothing in this section shall limit any other power of the court to hear proceedings in private or to exclude any person from the court.

Section 29. Evidence. Section In any proceedings under this Act, and during hearing in the first instance or during hearing of an appeal, or otherwise, the court may receive any evidence it thinks fit, for the fair determination of the case.

Section 30. Appeal by respondent. Section 30(1) The respondent may appeal to the High Court against the making of a protection order or any term thereof within thirty days of the date of the order. Section 30(2) An appeal under subsection (1) shall not stay the operation of the order unless the respondent moves the court for an order of stay. Section 30(3) The court which made the order may, on the application of the respondent and taking into account the circumstances of the case, stay the operation of the order or any term thereof pending the decision of the appeal.

Section 31. Restriction on reports of proceedings. Section 31(1)(a) in any newspaper or broadcast proceedings containing the locality or any particulars calculated to lead to identification of the particular venue of the court or the name, address or any particulars calculated to lead to the identification on the victim or any other person in the proceedings either as a party to the proceedings or as a witness in the proceedings; or Section 31(1)(b) in a newspaper or by television or by any other means, any picture of the victim or other person concerned in the proceedings. Section 31(2)(a) in any newspaper or broadcast proceedings containing the locality or any particulars calculated to lead to identification of the particular venue of the court or the name, address or any particulars calculated to lead to the identification on the victim or any other person in the proceedings either as a party to the proceedings or as a witness in the proceedings; or Section 31(2)(b) in a newspaper or by television or by any other means, any picture of the victim or other person concerned in the proceedings. Section 31(3)(a) is of a bonafide professional or technical nature; and Section 31(3)(b)...

Section 32. Compensation. Section 32(1) Where a victim of domestic violence suffers personal injuries or damage to property or financial loss as a result of the domestic violence, the court hearing a claim for compensation may award such compensation in respect of the injury or damage or loss as it deems just and reasonable. Section 32(2)(a) the pain and suffering of the victim, and the nature and extent of the physical or mental injury suffered; Section 32(2)(b) the cost of medical treatment for such injuries; Section 32(2)(c) any loss of earnings arising therefrom; Section 32(2)(d) the amount or value of the property taken or destroyed or damaged; Section 32(2)(e) lodging expenses to be contributed to a safe place or shelter; Section 32(2)(e)(i) lodging expenses to be contributed to a safe place or shelter; Section 32(2)(e)(ii) transport and moving expenses; Section 32(2)(e)(iii) the expenses required in setting up a separate household which, subject to subsection (3), may include amounts representing such housing loan payments or rental payments or part thereof, in respect of the shared residence, or alternative residence, as the case may be, for such period as the court conside...

Section 33. General provisions as to offences. Section 33(1) Where any offence, other than one referred to in this Act, is committed by a respondent upon an applicant during or in furtherance of the commission of any act of domestic violence, the court convicting the respondent thereof shall have regard to such circumstances as aggravating the offence committed, when assessing the sentence to be imposed. Section 33(2) For the avoidance of doubt, a prosecution under this Act or any other law shall not prevent the applicant from seeking protection or redress under this Act.

Section 34. Provision on delegated powers. Section 34(1) The Rules Committee established under section 81 of the Civil Procedure Act (Cap. 21) shall make rules to regulate any matter of practice or procedure under this Act. Section 34(2)(a) the procedure to be followed and the forms to be used under this Act; Section 34(2)(b) the time within which documents are to be filed and served under this Act; and Section 34(2)(c) the contents of orders to be issued under this Act.