Armed Forces Act - as Plain Text by MWakili

LAWS OF KENYA The Armed Forces AcT Chapter 199 Revised Edition 2009 (1980) Published by the National Council for Law Reporting with the Authority of the Attorney General www.kenyalaw.org CAP2.

199 Armed Forces [Rev.

2009 CHAPTER 199 THE ARMED FORCES ACT ARRANGEMENT OF SECTIONS part IprelImInary Section 1Short title.

2Interpretation.

part IIestablIshment and Command of armed forCes 3Establishment and employment of armed forces.

4Constitution of armed forces.

5Defence Council, Chief of General Staff and Commanders.

6Command of armed forces.

part IIIapplICatIon of aCt 7 Persons subject to Act.

8Application of Act to constabulary.

9Application of Act to civilians.

part IVCo-operatIon WIth forCes of other CountrIes 10Attachment to other forces and employment outside Kenya.

11Secondment or attachment to armed forces.

12Saving for members of British forces.

13Co-operation with other forces.

part VserVICe offenCes Treachery, Cowardice and Offences Arising out of Service 14Aiding enemy.

15Communication with enemy.

16Misconduct in action by person in command.

17Misconduct in action by others.

18Cowardice.

19Neglect of duty.

20Offences against morale.

21Being captured through disobedience or neglect, and failure to rejoin forces.

22Offences by or in relation to sentries, etc.

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199 3 Section 23Looting.

24Offences against civil population.

Mutiny and Insurbodination 25 Mutiny.

26Failure to suppress mutiny.

27Insubordinate behaviour.

28Disobedience to particular orders.

29Obstruction of provost ofcers, etc.

30Disobedience to standing orders.

Desertion and Absence without Leave 31Desertion.

32Absence without leave.

33Assisting desertion or absence without leave.

34Failure to perform military duties.

Malingering, Drunkenness and Quarrelling 35Malingering.

36Drunkenness.

37Quarrelling.

Offences relating to Property 38Offences concerning public property.

39Offences concerning property of persons subject to Act.

40Loss or hazarding of aircraft, ship or vehicle.

41Improper carriage of goods.

42Miscellaneous offences relating to property.

Offences relating to Billeting and Requisitioning of Vehicles 43Billeting offences.

44Offences in relation to requisitioning of vehicles.

Flying Offences 45Dangerous ying.

46Low ying.

47Annoyance by ying.

Offences relating to Custody 48Irregular arrest and connement.

49Permitting escape, and unlawful release of prisoners.

50Resistance to arrest.

51Escape from custody.

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199 Armed Forces [Rev.

2009 Section Offences concerning Court Martial and other Authorities 52Offences concerning courts martial.

53False evidence.

54Obstruction of police ofcer.

Prize Offences 55Prize offences by person in command.

56Prize offences by others.

Miscellaneous Offences 57Political activities.

58Making false statement on enlistment.

59alsely obtaining or prolonging leave.

60Inaccurate certication.

61Making false document 62Scandalous conduct of ofcer.

63Ill-treatment of subordinate.

64Disgraceful conduct.

65False accusation.

66Attempt to commit offence.

67Aiding and abetting.

68Conduct to prejudice of good order and discipline.

Civil Offences 69Civil offences.

part VIarrest 70Power to arrest offenders.

71Power to arrest deserter or absentee.

72Provisions for avoiding delay after arrest.

73Proceedings before civi1 court where suspected deserter or absentee arrested.

74Deserter or absentee surrendering to police.

75Certicate of arrest or surrender of deserter or absentee.

76Superintendent of prison to receive deserters and absentees.

77Temporary reception of person in service custody into civil custody.

part VIIprelImInary InVestIgatIon and summary trIal of Charges 78Certain charges may be dealt with summarily.

79Appropriate superior authority.

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199 5 Section 80Commanding ofcer to investigate all charges.

81Charges against ofcers.

82Charges against servicemen.

83Review of summary ndings and awards.

part VIIICourts martIal Constitution of Courts Martial 84Trial by court martial.

85Ofcers having power to convene court martial.

86Constitution of court martial.

87Disqualications for membership of court martial.

88Place for sitting of court martial.

89Appointment of judge advocate.

Provisions Relating to Trial 90Challenge.

91Oaths and afrmations.

92Court martial to sit in open court.

93Evidence.

94Privileges of witnesses and others.

95Contempt of court martial by civilian.

96Power to convict of offence other than that charged.

97Dissolution of court martial.

98Decision of court martial.

99Finding and sentence.

Finding of Insanity 100Where accused incapable of making defence.

101Where accused insane.

Punishments 102Punishment of ofcers.

103Punishment of servicemen.

104Restitution or compensation for theft, etc.

Promulgation Petitions 105Promulgation of nding or sentence.

106Petition against nding or sentence.

Conrmation, Revision and Review 107Conviction and sentence to be conrmed.

108Powers of conrming ofcer.

109Conrming ofcers.

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199 Armed Forces [Rev.

2009 Section 110Revision of conviction of court martial.

111Review of ndings and sentences of courts martial.

112Consideration of sentences of imprisonment.

113Death sentence requires Presidents approval.

114Custody of court martial records and right of accused to copy.

part IXappeals from Courts martIal 115Appeal to High Court.

116Application for leave to appeal.

117Appellant may present case in writing.

118Determination of appeal in ordinary cases.

119Powers of court in special cases.

120Court may appoint assessor.

121Repealed.

122Proceedings to be heard in absence of appellant.

123Defence on appeal.

124Person sentenced to death to have opportunity to appeal.

125Removal of prisoner.

126Composition of court.

127Furnishing of documents.

128Duties of registrar.

129Saving of prerogative of mercy.

130Procedure.

part XproVIsIons ConCernIng trIal and punIshment 131Commencement of sentence of imprisonment.

132Duration of sentence of imprisonment.

133Service of sentence of imprisonment.

134Committal to civil prison.

135Suspension of sentence or punishment.

136Sentence of imprisonment passed outside Kenya.

137Indemnity for person acting under warrant.

138Proof of certain facts by documentary evidence.

139Proof of outcome of civil trial.

140Evidence of proceedings of court martial.

141Trial of offence after offender ceases to be subject to Act.

142Limitation of time for trial of offences.

143Trials by civil courts.

144Persons not to be tried under Act for offence already dealt with.

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199 7 Section part XIforfeItures and deduCtIons 145Forfeitures and deductions: general provisions.

146Forfeiture of pay for absence from duty.

147Deductions for penalties.

148Compensation for loss occasioned by wrongful act or negligence.

149Deductions for barrack damage.

150Remission of forfeitures and deductions.

part XIIbIlletIng and requIsItIonIng of VehICles Billeting 151Billeting orders.

152Premises in which billets may be required.

153Billeting.

154Accommodation to be provided, and payment therefor.

155Where no occupier.

156Appeals against billeting.

157Compensation for damage.

158Application to civilians employed with armed forces, and to aircraft, ships and boats.

Requisitioning of Vehicles 159Requisitioning orders.

160Requisitioning of vehicles.

161Period for which vehicles to be requisitioned.

162Provision of vehicles for purchase.

163Payment for vehicles requisitioned.

164Avoidance of hardship in requisitioning vehicles.

165Issue of search warrant.

166Damage by vehicles being delivered for requisitioning.

167Application to aircraft, ships, horses, etc., food, forage and stores.

Supplemental 168Bringing into operation sections 151 and 159.

part XIIICommIssIonIng of offICers and enlIstment of serVICemen 169Grant of commissions.

170Term of commission.

171Termination of commission.

172Recruiting ofcers.

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199 Armed Forces [Rev.

2009 Section 173Enlistment.

174Term of enlistment.

175Prolongation of service.

176Discharge.

177Right to purchase discharge.

178Right to discharge on reduction to ranks.

179Postponement of discharge or transfer pending proceedings for offences, etc.

180Mode of discharge.

181Validity of attestation and enlistment.

part XIVthe reserVes 182Transfer to reserve.

183Volunteer reserve.

184Calling out reservists for annual training.

185Calling out reservists temporarily.

186Calling out reservists on permanent service.

187Punishment for non-attendance.

188Record of illegal absence.

189Release from reserve on completion of service.

190Release from reserve during service.

part XVthe armed forCes Constabulary 191Armed Forces Constabulary.

192Commandant.

193Declaration by members.

194Functions of constabulary.

195Powers and privileges of members.

196Powers of arrest.

197Use of arms.

part XVICIVIl offenCes ConCernIng the armed forCes and the Constabulary 198Obstructing constabulary, etc.

199Procuring and assisting desertion.

200Pretending to be a deserter.

201Obstructing person in execution of duty.

202Aiding malingering.

203Unlawful purchase, etc., of military stores.

204Refusal to receive persons billeted, etc.

205Enforcement of requisitioning.

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199 9 Section 206Illegal dealings in documents relating to pay, pensions, mobilization, etc.

207Unauthorized use of and dealing in decorations, etc.

part XVIIVIsItIng forCes 208Interpretation of Part.

209Power to apply Part.

210Powers of service courts of visiting forces.

211Restrictions on prosecutions for civil offences.

212Proof of certain facts.

part XVIIImIsCellaneous 213Precedence and command of members of armed forces.

214Exemptions from tolls, etc.

215Exemption from execution against public property.

216No assignment of or charge on service pay, etc.

217Certain ofcers may take statutory declarations.

218Residence and next of kin to be recorded.

219Execution of wills.

220Administration of estates.

221Uniforms and decorations not part of estate.

222Property of deserter.

223Board of inquiry.

224Report of inquiry into absence to be recorded.

225Complaints by ofcers.

226Complaints by servicemen.

227Regulations.

228Rules of procedure.

229Repealed.

230Rules of court.

231Powers exercisable in subsidiary legislation.

232Execution of orders, instruments, etc.

sChedules.

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199 Armed Forces [Rev.

2009 60 of 1968, CHAPTER 199 14 of 1971, 4 of 1973, THE ARMED FORCES ACT 12 of 1978, 13 of 1978, 17 of 1979, Commencement: 2nd December, 1968 19 of 1982, L.N.

29/1983, An Act of Parliament to provide for the establishment, government and 19 of 1984, discipline of the Kenya Army, the Kenya Air Force and the Kenya L.N.

305/1986, Navy and their reserves; to make provision in relation to seconded L.N.

552/1988, and attached personnel and visiting forces; and for purposes L.N.

258/1996, connected therewith and purposes incidental thereto 2 of 2002.

part IprelImInary Short title.

1.

This Act may be cited as the Armed Forces Act.

Interpretation.

2.

(1) In this Act, except where the context otherwise requires- 12 of 1978, Sch.

absent without leave shall be construed by reference to section 32; this Act includes regulations or rules made under this Act; acting rank means a rank from which the Commander in the case of ofcers and the commanding ofcer in the case of servicemen has power to order the holder to revert, and acting in relation to a specied rank shall be construed accordingly; air signal means a message, signal or indication given by any means whatsoever for the guidance of aircraft or a particular aircraft; aircraft material includes- (a) parts of, and components of or accessories for, aircraft, whether for the time being in an aircraft or not; (b) engines, armaments, ammunition and bombs and other missiles of any description in, or for use in, an aircraft; (c) any other gear, apparatus or instruments in, or for use in, an aircraft; (d) any apparatus used in connexion with the taking-off or landing of aircraft or for detecting the movement of aircraft; (e) any fuel used for the propulsion of aircraft and any material used as a lubricant for aircraft or aircraft material; www.kenyalaw.org Rev.

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199 11 appropriate superior authority has the meaning given in section 79; armed forces means the armed forces of the Republic, namely the Kenya Army, the Kenya Air Force and the Kenya Navy, together with the constabulary; arrest includes open arrest; before the enemy, in relation to a person, means that he is in action against the enemy or is about to go into action against the enemy or is under attack or threat of imminent attack by the enemy; billeting order means a billeting order made under section 151; civil court means a court of ordinary criminal jurisdiction; civil offence means an offence under Part XVI or an offence under some written law other than this Act, or an act or omission which if committed in Kenya would constitute such an offence; civil prison means a prison within the meaning of the Prisons Cap.

90.

Act; colour service means service in the armed forces other than service in the reserve or in a cadet force; Commander means the Commander of the relative service of the armed forces appointed under section 5 (6); commanding ofcer, in relation to a member of the armed forces, means the prescribed ofcer having powers of command over that person; competent service authority means the ofcer prescribed as such; conrming ofcer means a person who by virtue of section 109 has power to conrm the conviction and sentence of a court martial; constabulary means the Armed Forces Constabulary established by section 191; convening ofcer, in relation to a court martial, means the ofcer convening that court martial, and includes his successor or any www.kenyalaw.org CAP12.

199 Armed Forces [Rev.

2009 person for the time being exercising his or his successors functions; co-operating forces means military, air or naval forces of another country acting in co-operation with the armed forces under section 13; corresponding civil offence means the civil offence the commission of which constitutes the offence under section 69; corresponding rank, in relation to any rank in the Kenya Army, means such rank in the Kenya Air Force and such rank in the Kenya Navy as are prescribed; court martial means a court martial held under Part VIII; damage includes destruction; date of attestation, in relation to any person, means the date on which he is attested under Part XIII; decoration includes medal, medal ribbon, clasp and good conduct badge; Defence Council means the Defence Council established by section 5; desertion shall be construed by reference to section 31; enemy includes all persons engaged in armed operations against any of the armed forces, and all armed mutineers, armed rebels, armed rioters and pirates; foreign country means a country other than Kenya; Kenya Air Force, Kenya Army and Kenya Navy mean the forces established by section 3; Cap.

198 (1962).

Kenya Military Forces means the forces maintained under the Kenya Military Forces Act (now repealed); non-commissioned ofcer means a serviceman holding the rank of senior sergeant, sergeant or corporal, or corresponding rank, or the rank of lance corporal; ofcer means- (a) a person commissioned in any service of the armed forces; www.kenyalaw.org Rev.

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199 13 or (b) a person who is attached or seconded as a commissioned ofcer to any service of the armed forces; on active service, in relation to a person, means that the person is serving in or with a unit of the armed forces which is on active service; on active service, in relation to a unit of the armed forces, means that- (a) the unit is engaged in operations against an enemy; or (b) the President, considering that- (i) the armed forces or a part of the armed forces has recently been on active service or is imminently likely to be on active service; and (ii) it is necessary for the preservation of public security that the armed forces or part of the armed forces should be treated as being on active service, has, by notice in the Gazette, declared the armed forces or that part of the armed forces to be on active service for a specied period not exceeding three months (which may be extended from time to time by a further period not exceeding three months, or terminated, by a further notice in the Gazette), and (where part only of the armed forces is declared to be on active service) the unit is included in that part of the armed forces; preservation of public security has the same meaning as in the Cap.

57.

Preservation of Public Security Act; prison means a service prison or a civil prison; provost ofcer means a provost marshal or other ofcer appointed by the Commander, for a service of the armed forces, to be a provost ofcer for the purposes of this Act; public property means any property of the Government or a public body, or any property of the government of a country declared under section 11 to be a country to which that section applies, or any property belonging to a non-public fund authorized by the Commander or the commanding ofcer; www.kenyalaw.org CAP14.

199 Armed Forces [Rev.

2009 recruiting ofcer means a person authorized to recruit servicemen under section 172; registrar means the Registrar of the High Court; requisitioning order means a requisitioning order made under section 159; reserve means the Kenya Army reserve, the Kenya Air Force reserve or the Kenya Naval reserve, as the case may be; reservist means a member of the reserve; rules of procedure means rules of procedure made under section 228; sentence, in relation to imprisonment or active service punishment, includes an award made upon a case being dealt with summarily; service, used adjectivally, means belonging to or connected with the armed forces; service custody means the holding of any person under arrest or in connement by any of the armed forces, including connement in a service prison; service in the armed forces includes service in the Kenya Military Forces; service of the armed forces means the Kenya Army, the Kenya Air Force or the Kenya Navy; service prison means premises set aside by one of the Commanders as a place of imprisonment for persons serving a service sentence of imprisonment; service sentence of imprisonment means a sentence of imprisonment passed by a court martial or awarded on a charge being dealt with summarily; serviceman means any member of a service of the armed forces who is not an ofcer; steal has the same meaning as in Chapter XXVI of the Penal Cap.

63.

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199 15 stoppages means the recovery, by the deduction from the pay of an offender, of a specied sum by way of compensation for any expense, loss or damage occasioned by the offence; subject to this Act, in relation to a person, means that he is subject to this Act by virtue of Part III; superior ofcer, in relation to a person, means- (a) an ofcer, warrant ofcer or non-commissioned ofcer of superior rank; or (b) an ofcer, warrant ofcer or non-commissioned ofcer of equal rank but greater seniority while exercising authority as that persons superior; visiting force has the meaning assigned to it in section 208; warrant ofcer means a serviceman holding the rank of warrant ofcer class I or warrant ofcer class II or corresponding rank.

(2) Except where otherwise provided, references in this Act- (a) to a particular rank are to that rank in the Kenya Army; (b) to a person holding a particular rank include references to a person acting in that rank: Provided that a punishment of a person acting in a rank may nevertheless be accompanied by an order that he revert to his substantive rank.

part IIestablIshment and Command of armed forCes 3.

(1) There are hereby established and there shall be maintained in accordance with this Act an army, an air force and a navy, to be Establishment and known respectively as the Kenya Army, the Kenya Air Force and the employment of Kenya Navy, not exceeding such strength as may from time to time be armed forces.

determined by the President on the advice of the Defence Council, and 12 of 1978, Sch.

they shall rank in precedence in that order.

(2) The Kenya Army, the Kenya Air Force and the Kenya Navy are charged with the defence of the Republic and the support of the civil power in the maintenance of order, and with such other duties as may from time to time be assigned to them by the Minister after consultation with the Defence Council.

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199 Armed Forces [Rev.

2009 (3) The President shall be responsible for the organization and command of the armed forces.

(4) The President may, by notice in the Gazette, assign names to units of the armed forces and vary or replace any such names.

(5) The Minister may order that any member of the armed forces shall proceed to a place outside Kenya for the purpose of undergoing instruction or training or for other duty or employment.

Constitution of 4.

The Kenya Army, the Kenya Air Force and the Kenya Navy armed forces.

shall each consist of- (a) the regular force; (b) the reserve, consisting of- (i) the regular reserve; and (ii) the volunteer reserve, if the Defence Council decides that there shall be one; and (c) the cadet force, if the Defence Council decides that there shall be one.

Defence Council, 5.

(1) There is hereby established the Defence Council, which Chief of General shall consist of- Staff and Commanders.

(a) the Minister, who shall be chairman; 12 of 1978, s.2, 17 of 1979, Sch.

(b) the Assistant Minister, who shall be vice-chairman; (c) the Chief of General Staff; (d) the Commander of each service of the armed forces; (e) the Permanent Secretary of the Ministry, and the chairman of the Council may appoint a person to be secretary of the Council.

(2) The Defence Council may delegate to the Minister, the Assistant Minister, a public ofcer or a member of the armed forces the exercise of any power or the performance of any duty conferred or imposed on it by this Act, other than a power to make subsidiary legislation.

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199 17 (3) The chairman of the Defence Council may assign to the Permanent Secretary of the Ministry, the Chief of General Staff, the Commander of any service of the armed forces or the secretary of the Council responsibility for any business of the Council: Provided that the exercise of powers and the performance of duties specically conferred or imposed on the Defence Council by this Act may not be assigned under this subsection.

(4) The Defence Council may make rules and standing instructions providing for- (a) the organization of the work of the Council and the manner in which it may perform its functions, subject to any assignment of responsibilities by the chairman under subsection (3); (b) the procedure to be followed by the Council in conducting its business; and (c) all matters which the Council may consider it necessary or desirable to provide for, in order to secure the better performance of the functions of the Council.

(5) Acts and instructions of the Defence Council may be signied, by command of the Defence Council, under the hand of the secretary of the Defence Council.

(6) The President may appoint ofcers to be Chief of General Staff and Commanders of each service of the armed forces.

6.

(1) The Defence Council shall, subject to the powers of Command of armed command of the President as Commander-in-Chief of the armed forces forces.

and to this Act, be responsible for the overall control and direction of 12 of 1978, s.

3, the armed forces, and shall perform the other functions given to it by 17 of 1979, Sch.

this Act.

(2) Subject to subsection (1) and to the other provisions of this Act, the Chief of General Staff shall, subject to the general direction of the Defence Council, be responsible for the control, direction and general superintendence of the armed forces.

(3) Subject to the directions of the Chief of General Staff, each Commander shall have the command and administration of the service of which he is Commander.

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199 Armed Forces [Rev.

2009 to an ofcer under his command any of his powers under this Act, except a power of delegation and a power for the exercise of which specic rank seniority or qualications (which the ofcer does not hold) are stipulated by this Act.

part IIIapplICatIon of aCt Persons subject to 7.

(1) The following persons are subject to this Act- Act.

14 of 1971, Sch., (a) ofcers and servicemen who are not reservists; 2 of 2002, Sch.

(b) reservists who have been called out under section 184, section 185 or section 186; (c) any person who is serving with the armed forces under an engagement whereby he agrees to be subject to this Act, and who is not otherwise subject to this Act; and (d) any person to whom Parts IV to XI (inclusive ) for the time being apply by virtue of section 8 or section 9.

(2) In the application of this Act to female members of the services of the armed forces, so much of this Act as provides for active service punishment shall not apply.

Application of Act to 8.

(1) Parts IV to XI (inclusive) apply to members of the constabulary.

constabulary as they apply to ofcers and servicemen, but with the modications specied in subsection (2).

(2) The modications referred to in subsection (1) are- (a) the punishments which may be awarded by a court martial shall include dismissal, reduction in rank and a ne, and stoppages where the offence has occasioned loss or damage, but shall not include any other punishment less than imprisonment; (b) the only punishment which may be awarded for an offence where the charge is dealt with summarily shall be dismissal, reduction in rank and a ne not exceeding the equivalent of one months pay, and stoppages where the offence has occasioned loss or damages; (c) the following provision shall have effect in place of subsections (2) and (3) of section 70, that is to say, a member of the constabulary may be arrested by a provost ofcer or by a warrant ofcer or non-commissioned ofcer legally www.kenyalaw.org Rev.

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199 19 exercising authority under a provost ofcer or on his behalf, or by order of any ofcer, or by a member of the constabulary who is senior to him in rank; (d) the provisions of this Act relating to the investigation and summary trial of offences shall apply as they apply to servicemen, except as otherwise expressly provided; (e) for the purposes of the provisions of this Act relating to the investigation and summary trial of offences, the commanding ofcer shall be the Commandant of the Constabulary and also the ofcer commanding the unit with which the member is serving; and (f) references in sections 141 and 142 to being, continuing to be or ceasing to be subject to this Act shall be replaced by references to being, continuing to be or ceasing to be in circumstances in which Parts IV to XI (inclusive) apply, and section 141 (3) shall not apply.

(3) Any ne imposed on a person to whom this Act applies by virtue of this section, whether by a court martial or on a charge being dealt with summarily, shall be recoverable as a debt due to the Government.

Application of Act to 9.

(1) Where any unit of any of the armed forces is on active civilians.

service, Parts IV to XI (inclusive) apply to any person who- 12 of 1978, Sch., 17 of 1979, Sch.

(a) is employed in the service of that unit or of any part or member thereof, or accompanies that unit or any part thereof; and (b) is not otherwise subject to this Act, as those Parts apply to ofcers and servicemen subject to this Act, but with the modications specied in subsection (2).

(2) The modications referred to in subsection (1) are- (a) the punishments which may be awarded by a court martial shall include a ne, and stoppages where the offence has occasioned loss or damage, but shall not include any other punishment less than imprisonment; (b) the punishment which may be awarded where a charge is dealt with summarily shall, in the case of any offence, be a ne not exceeding the equivalent of one months pay and www.kenyalaw.org CAP20.

199 Armed Forces [Rev.

2009 no other punishment; (c) the following provision shall have effect in place of subsections (2) and (3) of section 70, that is to say, a person may be arrested by a provost ofcer, or by a warrant ofcer or non-commissioned ofcer legally exercising authority under a provost ofcer or on his behalf, or by order of any ofcer, or by a member of the constabulary; (d) the provisions of this Act relating to the investigation and summary trial of offences shall apply as they apply to servicemen, except as otherwise expressly provided; (e) for the purposes of the provisions of this Act relating to the investigation and summary trial of offences, the commanding ofcer shall be the ofcer commanding the unit in whose service the person is employed or which the person accompanies; or (f) references in sections 141 and 142 to being, continuing to be or ceasing to be subject to this Act shall be replaced by references to being, continuing to be or ceasing to be in circumstances in which Parts IV to XI (inclusive) apply, and section 141 (3) shall not apply.

(3) The Chief of General Staff may determine the rank in respect of which Parts IV to XI (inclusive) shall apply to a person who is subject to this Act by virtue of this section.

(4) Any ne imposed on a person to whom this Act applies by virtue of this section, whether by a court martial or on a charge being dealt with summarily, shall be recoverable as a debt due to the Government.

part IVCo-operatIon WIth forCes of other CountrIes Attachment to 10.

(1) The Defence Council may, subject to anything to the other forces and contrary in the conditions applicable to his service, place any ofcer employment outside or serviceman at the disposal of the service authorities of any country Kenya.

to which this subsection applies for the purpose of his undergoing 12 of 1978, s.

4.

instruction or training.

(2) Subsection (1) applies to any country in the Commonwealth, and to any other country which the President may, by notice in the Gazette and with the approval of the National Assembly, declare to be a country to which that subsection applies.

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199 21 (3) The President may, on the advice of the Defence Council, order that any unit of the armed forces shall be employed outside Kenya for any duty or employment.

(4) An ofcer or serviceman on service outside Kenya by virtue of this section- (a) shall not, solely by reason thereof, cease to be subject to this Act; (b) shall, for the purposes of gratuities and pension on discharge, retain his rights and such service shall be taken into account to the same extent as if it had been service in Kenya.

11.

(1) The Defence Council may attach to any unit of the armed Secondment or forces any member of the military, air or naval forces of any country to attachment to armed which this section applies who is placed at its disposal for that purpose forces.

by the service authorities of that country; and, subject to section 12, where a member of another force is so attached he shall, during the period of his attachment- (a) have the like powers of command and punishment over members of the armed forces as are possessed by, and shall be deemed to be, an ofcer or serviceman of equivalent rank; and (b) be subject to this Act.

(2) This section applies to any country in the Commonwealth, and to any other country which the President may, by notice in the Gazette and with the approval of the National Assembly, declare to be a country to which this section applies.

12.

(1) Notwithstanding section 11 (1), a person who is- Saving for members of British forces.

(a) a person subject to the Army Act, the Air Force Act or the 14 of 1971, Sch.

Naval Discipline Act; and (b) seconded or attached to the armed forces, shall remain subject to those Acts and shall not be a person subject to this Act, but in other respects section 11 (1) shall apply to him.

(2) In the event of a person referred to in subsection (1) committing an offence under the Army Act, the Air Force Act or the Naval Discipline Act, he may be arrested, tried and punished in Kenya by the service courts and authorities established under that Act.

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199 Armed Forces [Rev.

2009 (3) A person referred to in subsection (1) who is held in military, air force or naval custody by virtue of any nding or award by a service court or authority made in pursuance of subsection (2) is in lawful custody.

(4) Nothing in this section confers on any of the persons referred to in subsection (1) exemption from any law (other than this Act) or from the jurisdiction of any civil court or authority in Kenya.

3 & 4 Eliz.

(5) In this section, the Army Act, the Air Force Act and 2, c.18.

the Naval Discipline Act mean respectively the Army Act 1955, the 3 & 4 Eliz.

Air Force Act 1955 and the Naval Discipline Act 1957 of the United 2, c.

19.

Kingdom, as from time to time amended.

5 & 6 Eliz.

2, c.

53.

Co-operation with 13.

(1) If the whole or any part of the armed forces is required to act other forces.

in co-operation with any other military, air or naval force, the President may place the armed forces or such part thereof under the command of the ofcer commanding the other force, if that ofcer is senior in rank to all the ofcers of the armed forces or such part thereof.

(2) Where any part of the armed forces is acting in co-operation with any other military, air or naval force, the commander of that part of the armed forces may, in agreement with the commander of the other force, dene the powers of command and order of precedence of any ofcer or non-commissioned ofcer of that part of the armed forces in relation to an ofcer or non-commissioned ofcer of the other force who is of the equivalent rank.

(3) In so far as powers of command depend on rank, any member of any other military, air or naval force- (a) who is acting in co-operation with any unit of any of the armed forces; or (b) whose unit is acting in co-operation with a unit of any of the armed forces, shall have the same powers as a member of the armed forces of corresponding rank; and for the purposes of sections 27 and 70 any such member of another military, air or naval force shall be treated as if he were a member of the armed forces of corresponding rank.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 23 part VserVICe offenCes Treachery, Cowardice and Offences Arising out of Service 14.

(1) Any person subject to this Act who, with intent to assist Aiding enemy.

the enemy- (a) abandons or delivers up any place or post which it is his duty to defend, or abandons his place of duty, or induces any person to abandon or deliver up any place or post which it is that persons duty to defend, or induces any person to abandon that persons place of duty; or (b) does any act calculated to imperil the success of operations of the armed forces, or of any co-operating forces, or of any part of the armed forces or of any co-operating forces; or (c) having been captured by the enemy, serves with or aids the enemy in the prosecution of hostilities, or in the taking of measures calculated to inuence morale, or in any other way whatsoever not authorized by international usage; or (d) furnishes the enemy with arms or ammunition or with supplies of any description or with any other thing (whether similar to the foregoing or not); or (e) harbours or protects an enemy who is not a prisoner of war; or (f) gives any false air signal, or alters or interferes with any air signal or any apparatus for giving an air signal; or (g) when ordered by his superior ofcer, or otherwise under orders, to carry out any warlike operations in the air, fails to use his utmost exertions to carry such orders into effect; or (h) causes the capture or destruction by the enemy of any of the aircraft of the armed forces or of any co-operating forces, shall be guilty of an offence and liable, on conviction by court martial, to suffer death or any other punishment provided by this Act.

(2) Any person subject to this Act who, knowingly and without reasonable excuse, does any of the acts specied in paragraphs (a) to (e) (inclusive) of subsection (1), otherwise than with intent to assist the enemy, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

www.kenyalaw.org CAP24.

199 Armed Forces [Rev.

2009 (3) Any person subject to this Act who negligently causes or allows the capture or destruction by the enemy of any of the aircraft of the armed forces or of any co-operating forces shall, on conviction by court martial, be liable to imprisonment for life or any less punishment provided by this Act.

Communication with 15.

(1) Any person subject to this Act who, with intent to assist enemy.

the enemy, communicates with or gives intelligence to the enemy or 12 of 1978, Sch.

to any unauthorized person shall be guilty of an offence and liable, on conviction by court martial, to suffer death or any other punishment provided by this Act.

(2) Any person subject to this Act who, without authority, communicates with or gives intelligence to the enemy shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

(3) In this section, intelligence means information which is or purports to be information as to any matter about which information would or might be directly or indirectly useful to the enemy, and in particular (but without prejudice to the generality of the foregoing) as to any matter falling within the following paragraphs, being a matter about which information would or might be directly or indirectly useful to the enemy- (a) the number, description, armament, equipment, disposition, movement or condition of the armed forces or of any co- operating forces, or of any unit of the armed forces or of any co-operating forces, or of any of the vehicles, aircraft or ships of the armed forces or any co-operating forces; (b) any operations or projected operations of the armed forces or of any co-operating forces, or of any unit thereof, or of any of their aircraft or ships; (c) any code, cipher, call sign, password, countersign or frequency; (d) any measures for the defence or fortication of any place on behalf of the armed forces or of any co-operating forces; (e) the number, description or location of any prisoners of war; (f) weapons or munitions of war.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 25 16.

(1) Any person subject to this Act who is in command of any Misconduct in aircraft, ship, vehicle or establishment of the armed forces, and who action by person in with intent to assist the enemy- command.

(a) fails to use his utmost exertions to bring into action any aircraft, ship or vehicle which it is his duty to bring into action; or (b) surrenders any aircraft, ship or vehicle of the armed forces to the enemy when it is capable of being successfully defended or destroyed; or (c) fails to pursue any enemy whom it is his duty to pursue, or to assist to the utmost of his ability any friend whom it is his duty to assist; or (d) in the course of any action by or against the enemy, improperly withdraws from the action or from his station, or fails in his own person and according to his rank to encourage the persons under his command to ght courageously; or (e) surrenders any establishment, or any part of an establishment, of the armed forces to the enemy when it is capable of being successfully defended or when it is his duty to cause it to be destroyed, shall be guilty of an offence and liable, on conviction by court martial, to suffer death or any other punishment provided by this Act.

(2) Any person subject to this Act who is in command of any aircraft, ship, vehicle or establishment of the armed forces, and who does any of the acts specied in paragraphs (a) to (e) (inclusive) of subsection (1), otherwise than with intent to assist the enemy, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

17.

Any person subject to this Act who is not in command of any Misconduct in action aircraft, ship, vehicle or establishment of the armed forces, and who by others.

fails, when ordered to prepare for action by or against the enemy or during any such action, to use his utmost exertions to carry the lawful orders of his superior ofcers into execution, shall be guilty of an offence and liable, on conviction by court martial, if the offence is committed with intent to assist the enemy, to suffer death or any other punishment provided by this Act, and in any other case to imprisonment for life or any less punishment provided by this Act.

18.

(1) Any person subject to this Act who, when before the Cowardice.

www.kenyalaw.org CAP26.

199 Armed Forces [Rev.

2009 enemy- (a) leaves the post, position or other place where it is his duty to be; or (b) throws away his arms, ammunition or tools; or (c) does any of the acts specied in paragraph (f), (g) and (h) of section 14 (1), in such a manner as to show cowardice, or otherwise behaves in such a manner as to show cowardice, shall be guilty of an offence.

(2) Any person subject to this Act who, when before the enemy, induces other persons subject to this Act to commit an offence under subsection (1) shall be guilty of an offence.

(3) Any person guilty of an offence under this section shall be liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

Neglect of duty.

19.

Any person subject to this Act who neglects to perform or performs negligently any duty imposed on him shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Offences against 20.

Any person subject to this Act who- morale.

(a) spreads (whether orally, in writing, by signal or otherwise) reports relating to operations of the armed forces or of any co-operating forces, or of any part of any of the armed forces or of any co-operating forces, being reports calculated to create despondency or unnecessary alarm; or (b) when before the enemy, uses words calculated to create despondency or unnecessary alarm, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

Being captured 21.

(1) Any person subject to this Act who is captured by the through disobedience enemy through disobedience of orders or wilful neglect of his duty or neglect, and failure shall be guilty of an offence.

to rejoin forces.

(2) Any person subject to this Act who, having been captured by the enemy, fails to take, or prevents or discourages any other person www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 27 subject to this Act who has been captured by the enemy from taking, any reasonable steps to rejoin the armed forces available to him or, as the case may be, to that other person shall be guilty of an offence.

(3) Any person guilty of an offence under this section shall be liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

22.

(1) Any person subject to this Act on guard duty or watch Offences by or in who- relation to sentries, etc.

(a) sleeps at his post; or (b) when not on duty at a post, is asleep at a time when he is not allowed to be asleep; or (c) is drunk; or (d) leaves his post without having been regularly relieved or otherwise absents himself from any place where it is his duty to be, shall be guilty of an offence.

(2) For the purposes of subsection (1), a person is drunk if, owing to the inuence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unt to be entrusted with his duty or with any duty which he may be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit to the armed forces.

(3) Any person subject to this Act who strikes or otherwise uses force against any person on guard duty or watch, being a member of the armed forces or any co-operating forces or of any visiting force, or by the threat of force compels any such person to let him or any other person pass, shall be guilty of an offence.

(4) Any person guilty of an offence under this section shall be liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act: Provided that, if the offence was not committed on active service, he shall not be liable to imprisonment for more than ve years.

(5) References in this section to a person on guard duty or watch are references to a person who- www.kenyalaw.org CAP28.

199 Armed Forces [Rev.

2009 (a) is posted or ordered to patrol, or has adopted the position of sentry at a post or has undertaken the patrol; or (b) is a member of a guard or other party mounted or ordered to patrol, for the purpose of protecting any persons, premises or place, or of controlling access to or egress from any premises or place, or of regulating trafc by road or rail or on any inland navigation; or (c) has been ordered to keep a specic watch.

Looting.

23.

Any person subject to this Act who- (a) steals from, or with intent to steal searches, the person of anyone killed or wounded in the course of warlike operations; or (b) steals any property which has been left exposed or unprotected in consequence of warlike operations; or (c) takes otherwise than for the public service any aircraft, ship, vehicle, equipment or stores abandoned by the enemy, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding ten years or any less punishment provided by this Act.

Offences against civil 24.

Any person subject to this Act who outside Kenya commits population.

any wrongful act against the person or property of any member of the civil population shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Mutiny and Insubordination Mutiny.

25.

(1) Any person subject to this Act who- (a) takes part in a mutiny involving the use of violence or the threat of the use of violence, or having as its object or one of its objects the refusal or avoidance of any duty or service against, or in connexion with operations against, the enemy or the impeding of the performance of any such duty or service; or (b) incites any person to take part in such a mutiny, whether actual or intended, shall be guilty of an offence and liable, on conviction by court martial, www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 29 to suffer death or any other punishment provided by this Act.

(2) Any person subject to this Act who, in a case not falling within subsection (1), takes part in a mutiny, or incites any person subject to this Act to take part in a mutiny whether actual or intended, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

(3) In this Part, mutiny means a combination between two or more persons subject to this Act, or between persons two at least of whom are subject to this Act- (a) to overthrow or resist lawful authority in the armed forces or any co-operating forces, or in any part of the armed forces or any co-operating forces; or (b) to disobey such authority in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service against, or in connexion with operations against, the enemy; or (c) to impede the performance of any duty or service in the armed forces or in any co-operating forces, or in any part of the armed forces or of any co-operating forces.

26.

Any person subject to this Act who, knowing that a mutiny Failure to suppress is taking place or is intended- mutiny.

(a) fails to use his utmost endeavours to suppress or prevent it; or (b) fails to report without delay that the mutiny is taking place or is intended, shall be guilty of an offence and liable, on conviction by court martial- (i) if his offence was committed with intent to assist the enemy, to suffer death or any other punishment provided by this Act; and (ii) in any other case, to imprisonment for life or any less punishment provided by this Act.

27.

Any person subject to this Act who- Insubordinate behaviour.

(a) strikes or otherwise uses violence against, or offers violence www.kenyalaw.org CAP30.

199 Armed Forces [Rev.

2009 to, his superior ofcer; or (b) uses threatening or insubordinate language to his superior ofcer, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act: Provided that he shall not be liable to imprisonment for more than ve years if the offence was not committed on active service and did not involve striking or otherwise using violence against, or offering violence to, a superior ofcer exercising authority as such.

Disobedience to 28.

(1) Any person subject to this Act who, in such a manner as particular orders.

to show a wilful deance of authority, disobeys any lawful command given or sent to him personally shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

(2) Any person subject to this Act who, wilfully or through neglect, disobeys any lawful command shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding ve years or any less punishment provided by this Act: Provided that he shall not be liable to imprisonment for more than two years if the offence was not committed on active service.

Obstruction of 29.

Any person subject to this Act who- provost ofcers, etc.

(a) obstructs; or (b) when called on refuses to assist, any person known to him to be a provost ofcer, duty ofcer or ofcer of the patrol, or to be a person (whether subject to this Act or not) lawfully exercising authority under or on behalf of a provost ofcer, duty ofcer or ofcer of the patrol, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Disobedience to 30.

(1) Any person subject to this Act who contravenes or refuses standing orders.

or fails to comply with any provision of orders to which this section applies, being a provision which he knows of or might reasonably be expected to know of, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 31 (2) This section applies to standing orders or other routine orders of a continuing nature made for any formation or unit or body of servicemen, or for any command or other area, garrison or place, or for any ship train or aircraft.

Desertion and Absence without Leave 31.

(1) Any person subject to this Act who- Desertion.

12 of 1978, Sch.

(a) deserts; or (b) persuades or procures any person subject to this Act to desert, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act: Provided that a person shall not be liable to imprisonment for more than two years unless- (i) if the offence was committed under paragraph (a), he was on active service or under orders for active service at the time when it was committed; or (ii) if the offence was committed under paragraph (b), the per- son in relation to whom it was committed was on active service or under orders for active service at that time.

(2) For the purposes of this Part, a person deserts if he- (a) leaves the armed forces, or fails to join or rejoin the armed forces when it is his duty to join or rejoin them, with (in either case) the intention, subsisting at the time of the leaving or failure or formed thereafter, of remaining permanently absent from his duty; or (b) being an ofcer, enlists in or enters the armed forces without having resigned his commission, or being a serviceman enlists in or enters the armed forces without having been discharged from his previous enlistment; or (c) absents himself without leave with intent to avoid serving in any place outside Kenya or to avoid service or any particular service when before the enemy; or (d) absents himself without leave for a continuous period of more than ninety days.

www.kenyalaw.org CAP32.

199 Armed Forces [Rev.

2009 (3) In addition to or without any other punishment, the court martial convicting a serviceman of desertion may direct that the whole or any part of his service preceding the period of desertion shall be forfeited: Provided that this subsection does not apply to a reservist called out on permanent service.

Absence without 32.

Any person subject to this Act who- leave.

(a) absents himself without leave; or (b) persuades or procures any person subject to this Act to absent himself without leave, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Assisting desertion 33.

Any person subject to this Act who- or absence without leave.

(a) knowingly assists any person subject to this Act to desert 12 of 1978, Sch.

or absent himself without leave; or (b) knowing that any person subject to this Act has deserted or absented himself without leave, or is attempting to desert or absent himself without leave, fails to report that fact without delay, or fails to take any steps in his power to cause that person to be apprehended, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Failure to perform 34.

Any person subject to this Act who without reasonable excuse military duties.

fails to attend for any parade or other service duty of any description, or leaves any such parade or duty as aforesaid before he is permitted to do so, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Malingering, Drunkenness and Quarrelling Malingering.

35.

Any person subject to this Act who- (a) falsely pretends to be suffering from sickness or disability; www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 33 or (b) injures himself with intent thereby to render himself unt or temporarily unt for service, or causes himself to be injured by any person with that intent; or (c) injures another person subject to this Act, at the instance of that person, with intent thereby to render that person unt or temporarily unt for service; or (d) with intent to render or keep himself unt or temporarily unt for service, does or fails to do anything (whether at the time of the act or omission he is in hospital or not) whereby he produces, or prolongs or aggravates, any sickness or disability, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

36.

(1) Any person subject to this Act who is drunk, whether on Drunkenness.

duty or not, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act: Provided that, if he is neither on active service nor on duty, he shall not be liable to imprisonment for more than six months.

(2) For the purposes of this section, a person is drunk if owing to the inuence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unt to be entrusted with his duty or with any duty which he may be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit to the armed forces.

37.

Any person subject to this Act who- Quarrelling.

(a) ghts or quarrels with any other person whether subject to this Act or not; or (b) uses threatening , abusive, insulting or provocative words or behaviour likely to cause a disturbance, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

www.kenyalaw.org CAP34.

199 Armed Forces [Rev.

2009 Offences relating to Property Offences concerning 38.

Any person subject to this Act who- public property.

(a) steals or fraudulently misapplies any public property, or is concerned in or connives at the stealing or fraudulent misapplication of any public property; or (b) receives or retains any public property, knowing or having reason to believe it to have been stolen or to have been fraudulently misapplied; or (c) wilfully damages, or is concerned in the wilful damage of, any public property; or (d) by wilful neglect causes damage by re to any public property, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding seven years or any less punishment provided by this Act.

Offences concerning 39.

Any person subject to this Act who- property of persons subject to Act.

(a) steals or fraudulently misapplies any property belonging to a person subject to this Act, or is concerned in or connives at the stealing or fraudulent misapplication of any such property; or (b) receives or retains any such property, knowing or having reason to believe it to have been stolen or to have been fraudulently misapplied; or (c) wilfully damages, or is concerned in the wilful damage of, any such property, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Loss or hazarding 40.

Any person subject to this Act who, either wilfully or by of aircraft, ship or negligence, causes or allows any aircraft, ship or vehicle of the armed vehicle.

forces to be captured, lost, destroyed, damaged, stranded or hazarded shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act: Provided that, if he has not acted wilfully or with wilful neglect, www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 35 he shall not be liable to imprisonment for more than two years.

41.

Any person subject to this Act who, being in command of an Improper carriage of aircraft, ship or vehicle of the armed forces or being a member of its goods.

crew, without lawful authority- (a) receives or permits to be received on board the aircraft, ship or vehicle any goods or merchandise intended for disposal or delivery by way of trade or business (whether on his own account or on account of any other person), not being merchandise received in the course of salvage; or (b) agrees to carry any goods or merchandise on board the aircraft, ship or vehicle in consideration of the payment of freight, or demands or receives any payment in respect of such carriage, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

42.

Any person subject to this Act who- Miscellaneous offences relating to (a) loses or by negligence damages any public property of property.

which he has the charge or which has been entrusted to his care, or which forms part of property of which he has the charge or which has been entrusted to his care, or any service decoration granted to him; or (b) loses, or by negligence damages, any clothing, arms, ammunition or other equipment issued to him for his use for service purposes; or (c) by negligence causes damage by re to any public property; or (d) fails to take proper care of any animal or bird of which he has the charge and which is used in the public service; or (e) makes away with (whether by pawning, selling or destruction or in any other way) any service decoration granted to him or any clothing, arms, ammunition or other equipment issued to him for his use for service purposes, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act: www.kenyalaw.org CAP36.

199 Armed Forces [Rev.

2009 Provided that it shall be a defence for a person charged under this section with losing any property or any service decoration that he took all reasonable steps for its care and preservation.

Offences relating to Billeting and Requisitioning of Vehicles Billeting offences.

43.

Any person subject to this Act who- (a) obtains billets, or orders or procures another person to obtain them, knowing that no billeting order is in force authorizing him to demand those billets or that he is otherwise not authorized to demand them; or (b) takes, agrees to take or demands from a person on whom he or any other person or any vehicle is or is to be billeted in pursuance of a billeting order any money or thing as consideration for not requiring, or for ceasing to require, accommodation for himself or the said other person or standing room for the vehicle; or (c) commits any wrongful act against the person or property of the occupier of premises in which he is billeted in pursuance of a billeting order or of any other person who is in those premises, or against any other property in those premises, or wilfully or by wilful neglect damages those premises or any such property as aforesaid, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Offences in relation 44.

(1) Any person subject to this Act who- to requisitioning of (a) gives directions for the provision of a vehicle, or orders vehicles.

or procures another person to give them, knowing that no requisitioning order is in force authorizing him to give directions for the provision of that vehicle and that he is not otherwise authorized to give such directions; or (b) in purported exercise of powers conferred by a requisitioning order, takes, or orders or procures any other person to take, possession of a vehicle, knowing that no requisitioning order is in force under which the taking possession of the vehicle could be authorized or that the taking possession thereof is otherwise not authorized under such an order; or (c) takes or agrees to take, or demands, from a person any money www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 37 or thing as consideration for directions, or any particular directions, for the provision of a vehicle not being given, or for possession of a vehicle not being taken or not being retained, under a requisitioning order, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding three years or any less punishment provided by this Act.

(2) Subsection (1) applies in relation to aircraft, ships, boats, trains, railway rolling stock, horses, mules, donkeys and camels, food, forage and stores (within the meaning of Part XII) as it applies in relation to vehicles.

Flying Offences 45.

Any person subject to this Act who, either wilfully or by Dangerous ying.

negligence, does any act or makes any omission in ying an aircraft of the armed forces, or in the use of any such aircraft, or in relation to any such aircraft or to aircraft material, which causes or is likely to cause loss of life or bodily injury to any person shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act: Provided that, if he has not acted wilfully or with wilful neglect, he shall not be liable to imprisonment for more than two years.

46.

Any person subject to this Act who, being the pilot of an Low ying.

aircraft of the armed forces, ies it at a height less than the prescribed height, except- (a) while taking off or landing; or (b) in such other circumstances as may be prescribed, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

47.

Any person subject to this Act who, being the pilot of an Annoyance by ying.

aircraft of the armed forces, ies it so as to cause, or as to be likely to cause, unnecessary annoyance to any person shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

www.kenyalaw.org CAP38.

199 Armed Forces [Rev.

2009 Offences relating to Custody Irregular arrest and 48.

(1) Any person subject to this Act who, when another person connement.

subject to this Act is under arrest- (a) unnecessarily delays the taking of such steps as it is his duty to take for investigating the allegations against that other person, or for having the allegations against that other person investigated by his commanding ofcer or the appropriate superior authority or tried by court martial; or (b) fails to release, or effect the release of, that other person when it is his duty to do so, shall be guilty of an offence.

(2) Any person subject to this Act who, having committed a person (in this subsection referred to as the prisoner) to the custody of a provost ofcer or other ofcer or of a warrant ofcer or non-commissioned ofcer, fails without reasonable cause to deliver- (a) at the time of the committal; or (b) if it is not practicable so to do at the time of the committal, then within twenty-four hours thereafter, to the person to whose custody the prisoner was committed a report in writing signed by himself of the offence which the prisoner is alleged to have committed shall be guilty of an offence.

(3) Where any person (in this subsection referred to as the prisoner) is committed to the charge of a person subject to this Act who is in command of a guard, then if without reasonable cause that person does not, as soon as he is relieved from his guard and any further duty and in any case within twenty-four hours after the committal, give to the ofcer to whom it is his duty to report- (a) a written statement containing, so far as known to him, the prisoners name and alleged offence and the name and rank or other description of the person by whom the prisoner is alleged to have committed the offence; and (b) if he has received it, the report required by subsection (2), he shall be guilty of an offence.

(4) Any person who is guilty of an offence under this section shall www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 39 be liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

49.

(1) Any person subject to this Act who wilfully allows to Permitting escape, escape any person who is committed to his charge, or whom it is his and unlawful release duty to guard, shall be guilty of an offence and liable, on conviction by of prisoners.

court martial, to imprisonment for a term not exceeding seven years or any less punishment provided by this Act.

(2) Any person subject to this Act who- (a) without proper authority releases any person who is committed to his charge; or (b) without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to guard, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

50.

(1) Any person subject to this Act who, being concerned in Resistance to arrest.

any quarrel or disorder, refuses to obey any ofcer who orders him into arrest, or strikes or otherwise uses violence against, or offers violence to, any such ofcer, shall be guilty of an offence, whether or not the ofcer is his superior ofcer.

(2) Any person subject to this Act who strikes or otherwise uses violence against, or offers violence to, any person, whether subject to this Act or not, whose duty it is to apprehend him or in whose custody he is shall be guilty of an offence.

(3) Any person guilty of an offence under this section shall be liable, on conviction by court martial, to imprisonment for a term not exceeding three years or any less punishment provided by this Act.

51.

Any person subject to this Act who escapes from arrest, prison Escape from custody.

or other lawful custody (whether service custody or not) shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Offences concerning Courts Martial and other Authorities 52.

(1) Any person subject to this Act who- Offences concerning courts martial.

(a) having been duly summoned or ordered to attend as a witness www.kenyalaw.org CAP40.

199 Armed Forces [Rev.

2009 before a court martial, fails to comply with the summons or order; or (b) refuses to swear an oath when duly required by a court martial to do so; or (c) refuses to produce any document in his custody or under his control which a court martial has lawfully required him to produce; or (d) when a witness, refuses to answer any question which a court martial has lawfully required him to answer; or (e) wilfully insults any person who is a member of a court martial or a witness, or any other person whose duty it is to attend on or before the court, while that person is acting as a member thereof or is so attending, or wilfully insults any such person while that person is going to or returning from the proceedings of the court; or (f) wilfully interrupts the proceedings of a court martial or otherwise misbehaves before the court, shall be guilty of an offence and liable, on conviction by court martial, other than the court in relation to which the offence was committed, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(2) Notwithstanding subsection (1), where an offence under paragraph (e) or paragraph (f) of that subsection is committed in relation to a court martial, that court martial, if of opinion that it is expedient that the offender should be dealt with summarily by the court instead of being brought to trial before another court martial, may, by order under the hand of the president of the court, order the offender to be imprisoned for a term not exceeding twenty-one days.

False evidence.

53.

(1) Any person subject to this Act who, having been lawfully sworn as a witness or as an interpreter in proceedings before a court martial or before any board or person having power under this Act to administer oaths, makes a statement material in those proceedings which he knows to be false or does not believe to be true shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding seven years or any less punishment provided by this Act.

(2) A person shall not be liable to be convicted of an offence under this section solely upon the evidence of one witness as to the falsity of www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 41 any statement alleged to be false.

54.

Any person subject to this Act who prevents or obstructs any Obstruction of police other person- ofcer.

(a) in executing a warrant for the arrest of a person subject to this Act who has committed or is suspected of having committed an offence triable by a civil court; or (b) in lawfully arresting without a warrant a person subject to this Act, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Prize Offences 55.

Any person subject to this Act who is in command of an Prize offences by aircraft or ship and who- person in command.

(a) having taken any aircraft or ship as prize, fails to send to the High Court, or to some other prize court having jurisdiction in the case, all the aircrafts papers or ships papers, as the case may be, found on board; or (b) unlawfully makes any agreement for the ransoming of any aircraft, ship or goods taken as prize; or (c) in pursuance of any such agreement as aforesaid, or otherwise by collusion, restores or abandons any aircraft, ship or goods taken as prize, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding ve years or any less punishment provided by this Act.

56.

Any person subject to this Act who- Prize offences by others.

(a) strikes or otherwise ill-treats any person who is on board an aircraft or ship taken as prize, or who unlawfully takes from any such person any thing in his possession; or (b) removes out of any aircraft or ship taken as prize (otherwise than for safe keeping or for the necessary use of the armed forces) any goods not previously adjudged by a prize court to be lawful prize; or www.kenyalaw.org CAP42.

199 Armed Forces [Rev.

2009 (c) breaks bulk on board any aircraft or ship taken as prize, or detained in exercise of any belligerent right or under any law, with intent to embezzle or fraudulently misapply any thing therein, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding ve years or any less punishment provided by this Act.

Miscellaneous Offences Political activities.

57.

Any person subject to this Act who- (a) promotes, or is a member of, or takes part in the activities of, any political association; or (b) expresses political views in a public place; or (c) addresses any meeting, or joins in any demonstration, the purpose of which is to express support for a political association or object or for a candidate in a national or local authority election, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act: Provided that this section does not prevent any person from recording his vote at such an election.

Making false 58.

Any person who, when before a recruiting ofcer for the statement on purpose of being attested in pursuance of Part XIII, knowingly makes enlistment.

a false answer to any question contained in the attestation paper and put to him by or by the direction of the recruiting ofcer shall, if he has since become and remains subject to this Act, be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding three months or any less punishment provided by this Act.

Falsely obtaining or 59.

Any person subject to this Act who knowingly makes a false prolonging leave.

statement to any member or authority of the armed forces, or to a police ofcer, or to an administrative ofcer, for the purpose of obtaining leave or prolonging his leave shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Inaccurate 60.

Any person subject to this Act who makes or signs- www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 43 (a) a certicate relating to any aircraft of the armed forces or certication.

any aircraft material; or (b) a certicate relating to any matter affecting the sea-going or ghting efciency of any ship of the armed forces, without having ensured its accuracy shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

61.

Any person subject to this Act who- Making false document.

(a) makes, signs or makes an entry in any service report, return, pay list or certicate or other service document, being a document or entry which is to his knowledge false in a material particular; or (b) alters any service report, return, pay list or certicate or other service document, or alters any entry therein, so that the document or entry is to his knowledge false in a material particular, or suppresses, defaces or makes away with any such document or entry which it is his duty to preserve or produce; or (c) fails to make an entry in any such document so that the document is to his knowledge false in a material particular, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

62.

Every ofcer who behaves in a scandalous manner, Scandalous conduct of ofcer.

unbecoming the character of an ofcer, shall be guilty of an offence and shall, on conviction by court martial, be dismissed from the armed forces.

63.

Any ofcer, warrant ofcer or non-commissioned ofcer Ill-treatment of who strikes or otherwise ill-treats a person subject to this Act who is of subordinate.

inferior rank, or is of the same rank but of less seniority, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding ve years or any less punishment provided by this Act.

64.

Any person subject to this Act who is guilty of disgraceful Disgraceful conduct.

conduct of a cruel, indecent or unnatural kind shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding ten years or any less punishment provided www.kenyalaw.org CAP44.

199 Armed Forces [Rev.

2009 by this Act.

False accusation.

65.

Any person subject to this Act who- (a) makes an accusation against any other person subject to this Act which he knows to be false or does not believe to be true; or (b) in making a complaint where he thinks himself wronged, makes a statement affecting the character of another person subject to this Act which he knows to be false or does not believe to be true, or wilfully suppresses any material facts, shall be guilty of an offence and liable, on conviction by court martial, to imprisonment for a term not exceeding three years or any less punishment provided by this Act.

Attempt to commit 66.

Any person subject to this Act who attempts to commit an offence.

offence under any of the foregoing provisions of this Part shall be guilty of an offence and liable, on conviction by court martial, to the same punishment as is provided for the offence attempted: Provided that, if the offence is one punishable by death or by imprisonment for life, he shall not be liable to any greater punishment than imprisonment for a term not exceeding seven years.

Aiding and abetting.

67.

Any person subject to this Act who aids, abets, counsels, procures or connives at the commission by another person of an offence under any of the foregoing provisions of this Part shall be guilty of the like offence and shall be liable to be charged, tried, and on conviction by court martial, punished as a principal offender.

Conduct to prejudice 68.

Any person subject to this Act who is guilty of any act, conduct of good order and or neglect to the prejudice of good order and service discipline shall discipline.

be guilty of an offence and liable, on conviction by court martial, to 12 of 1978, Sch.

imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Civil Offences Civil offences.

69.

(1) Any person subject to this Act who commits a civil offence, whether in Kenya or elsewhere, shall be guilty of an offence and, on conviction by court martial- (a) if the civil offence is treason or murder, shall be sentenced to death; and www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 45 (b) in any other case, shall be liable to any punishment which a civil court could award for the civil offence if committed in Kenya, being one or more of the punishments provided by this Act, or such punishment, less than the maximum punishment which a civil court could so award, as is provided by this Act: Provided that, where a civil court could not so award imprisonment, a person so convicted shall be liable to suffer such punishment, less than dismissal from the armed forces, as is provided by this Act.

(2) A person shall not, except with the consent of the Attorney- General, be charged with an offence under this section committed in Kenya if the corresponding civil offence is treason, treasonable felony, treachery, murder, manslaughter or rape.

(3) Where the civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (2), to have been committed at the place where the act or omission which caused the death occurred, irrespective of the place of death.

part VIarrest 70.

(1) Any person subject to this Act who is found committing an Power to arrest offence under this Act, or is alleged to have committed or is reasonably offenders.

suspected of having committed an offence under this Act, may be arrested in accordance with this section.

(2) An ofcer may be arrested by an ofcer of superior rank, or, if engaged in a quarrel or disorder, by an ofcer of any rank.

(3) A serviceman may be arrested by an ofcer, a warrant ofcer or a non-commissioned ofcer: Provided that a serviceman shall not be arrested by virtue of this subsection except by a person of superior rank.

(4) A provost ofcer may arrest any ofcer or serviceman: Provided that an ofcer shall not be arrested by virtue of this subsection except on the order of another ofcer.

(5) The power of arrest given by this section may be exercised either personally or by ordering into arrest the person to be arrested or by giving orders for that persons arrest.

(6) In this section, provost ofcer includes an ofcer or www.kenyalaw.org CAP46.

199 Armed Forces [Rev.

2009 serviceman lawfully exercising authority under a provost ofcer or on his behalf.

Power to arrest 71.

(1) A police ofcer may arrest any person whom he has deserter or absentee.

reasonable cause to suspect of being an ofcer or serviceman who has deserted or is absent without leave.

(2) Where no police ofcer is available, any person may arrest any person whom he has reasonable cause to suspect of being an ofcer or serviceman who has deserted or is absent without leave.

(3) Any person having authority to issue a warrant for the arrest of a person suspected of a criminal offence, if satised by evidence on oath that there is, or is reasonably suspected of being, within his jurisdiction a person who is reasonably suspected of being an ofcer or serviceman who has deserted or is absent without leave, may issue a warrant authorizing his arrest.

(4) Any person who is arrested in pursuance of this section shall as soon as practicable be brought before a subordinate court.

(5) Notwithstanding any other written law, a person arrested and brought before a subordinate court under this section or under section 73 or section 74 shall not be admitted to bail.

Provisions for 72.

(1) The allegations against a person arrested under section 70 avoiding delay after or section 71 shall be investigated without unnecessary delay, and as arrest.

soon as practicable thereafter either proceedings shall be taken to deal with the allegations or he shall be released from arrest.

(2) Wherever any person subject to this Act is arrested and remains in custody for more than eight days without his being tried by court martial or dealt with summarily- (a) a special report on the necessity for further delay shall be made by his commanding ofcer to the prescribed authority in the prescribed manner; and (b) a similar report shall be made to the prescribed authority and in the prescribed manner every eight days until a court martial sits or the offence is dealt with summarily or he is released from arrest: Provided that, where the person is on active service, this subsection need be complied with only so far as is reasonably practicable, having regard to the exigencies of active service.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 47 (3) For the purposes of section 48 (1), the question whether there has been unnecessary delay in the taking of steps for investigating allegations against a person under arrest shall be determined without regard to subsection (2) of this section.

73.

(1) Where a person who is brought before a subordinate court Proceedings before civil court where is alleged to be an ofcer or serviceman who has deserted or is absent suspected deserter or without leave, the following provisions shall have effect.

absentee arrested.

(2) If he admits that he is illegally absent from the armed forces and the court is satised of the truth of the admission, then- (a) unless he is in custody for some other cause, the court shall; and (b) notwithstanding that he is in custody for some other cause, the court may, forthwith either cause him to be delivered into service custody in such manner as the court thinks t or commit him to some prison, police station or other place provided for the connement of persons in custody, to be kept there for such reasonable time as the court xes (not exceeding such time as the court considers reasonably necessary for the purpose of enabling him to be delivered into service custody) or until sooner delivered into service custody.

(3) Any time xed by the court under subsection (2) may be extended by the court from time to time if it appears to the court reasonably necessary to do so for the purpose aforesaid.

(4) If he does not admit that he is illegally absent as aforesaid, or if the court is not satised of the truth of the admission, the court shall consider the evidence and any statement of the accused, and, if satised that he is subject to this Act and if of opinion that there is sufcient evidence to justify his being tried under this Act for the offence of desertion or absence without leave, then, unless he is in custody for some other cause, the court shall cause him to be delivered into service custody or commit him as aforesaid, but otherwise shall discharge him: Provided that if he is in custody for some other cause the court shall have power, but shall not be required, to act in accordance with this subsection.

(5) The provisions of the Criminal Procedure Code relating to the Cap.

75.

constitution and procedure of subordinate courts holding preliminary inquiries and conferring powers of adjournment and remand on such courts so acting, and those relating to evidence and the issue and www.kenyalaw.org CAP48.

199 Armed Forces [Rev.

2009 enforcement of summonses or warrants to secure the attendance of witnesses, shall apply to proceedings under this section.

Deserter or absentee 74.

(1) Where a person surrenders himself, as being an ofcer surrendering to or serviceman who has deserted or is absent without leave, to a police police.

ofcer elsewhere than at a police station, the police ofcer shall bring him to a police station.

(2) Where a person surrenders himself, as being an ofcer or serviceman who has deserted or is absent without leave, to a police ofcer at a police station, or is brought to a police station under subsection (1), the police ofcer in charge of the police station shall forthwith inquire into the case, and, if it appears to him that the person is an ofcer or serviceman who has deserted or is absent without leave, he may cause him to be delivered into service custody without bringing him before a subordinate court or may bring him before a subordinate court.

Certicate of arrest 75.

(1) Where a subordinate court deals with a person under or surrender of section 73, then when that person is delivered into service custody deserter or absentee.

there shall be handed over with him a certicate in the prescribed form, signed by a magistrate, containing particulars of his arrest or surrender and of the proceedings before the court.

(2) Where a person is delivered into service custody without being brought before a court, whether under section 74 or under any other lawful power, there shall be handed over with him a certicate, in the prescribed form, signed by the police ofcer who causes him to be delivered into service custody, containing the particulars of his surrender.

(3) In any proceedings for an offence under section 31 or section 32- (a) a document purporting to be a certicate under subsection (1) or subsection (2) of this section, or under the corresponding provisions of any service law other than this Act, and to be signed as thereby required, shall be evidence of the matter stated in the document; (b) where the proceedings are against a person who has been taken into service custody on arrest or surrender, a certicate purporting to be signed by a provost ofcer or any corresponding ofcer of the forces of another country, or by any other ofcer in charge of the guard-room or other place where that person was conned on being taken into custody, stating the fact, date, time and place of arrest or surrender, www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 49 shall be evidence of the matters stated in the certicate.

76.

It shall be the duty of the superintendent or other Superintendent of person in charge of a civil prison, or the person in charge of prison to receive deserters and any police station or other place provided for the connement absentees.

of persons in custody, to receive any person duly committed to that prison, police station or place by a subordinate court as being an ofcer or serviceman who has deserted or is absent without leave, and to detain him until he is delivered in accordance with the directions of the court, into service custody.

77.

(1) Where a person is in service custody charged with, or with Temporary reception a view to his being charged with, an offence under Part V it shall be the of person in service duty of the superintendent or other person in charge of a civil prison, or custody into civil the person having charge of any police station or other place provided custody.

for the connement of persons in custody, to receive that person and to detain him for a period not exceeding fteen days, upon receiving a written order purporting to be signed by the persons commanding ofcer.

(2) Notwithstanding subsection (1), where a person is in service custody charged with an offence under Part V or the corresponding provisions of any service law other than this Act, a magistrate empowered to hold a subordinate court of the rst class may, on application being made to him by afdavit or other sworn evidence by the commanding ofcer of the person in custody and on being satised that it is in the interests of law and order to do so, by warrant from time to time remand the person in custody for a reasonable time, not exceeding twenty-one days at any one time, to a civil prison, police station or other place provided for the connement of persons in custody.

(3) A magistrate to whom an application under subsection (2) is made, may, on the same application or on a subsequent application made by the commanding ofcer, order, by endorsement on the warrant, that the person in custody be returned to service custody for such periods as may be necessary to enable a court martial to be held, or may order his discharge from the civil prison or other place where he is detained.

part VIIprelImInary InVestIgatIon and summary trIal of Charges 78.

(1) Instead of the accused being tried by court martial- Certain charges may be dealt with (a) the commanding ofcer of the accused may deal summarily summarily.

with the charge if it is for an offence prescribed as one which a commanding ofcer may deal with summarily; www.kenyalaw.org CAP50.

199 Armed Forces [Rev.

2009 (b) the appropriate superior authority may deal summarily with the charge if it is for an offence prescribed as one which the appropriate superior authority may deal with summarily, but subject in either case to any prescribed limitations.

(2) Notwithstanding subsection (1), a commanding ofcer of the rank of major or corresponding rank shall not deal summarily with a charge against an ofcer of the rank of captain or corresponding rank or above; and a commanding ofcer below the rank of major or corresponding rank shall not deal summarily with a charge against any ofcer.

(3) References in this Act to dealing summarily with a charge are references to the commanding ofcer of the accused or the appropriate superior authority determining whether the accused is guilty and either recording a nding of guilty and awarding punishment or dismissing the charge.

Appropriate superior 79.

For the purposes of this Act, the appropriate superior authority authority.

is the Commander or such ofcer, not below the rank of lieutenant- colonel or corresponding rank, as may be prescribed: Provided that an ofcer of such rank as may be prescribed shall not be the appropriate superior authority for the purposes of a case in which the accused is above such rank as may be prescribed.

Commanding ofcer 80.

Where a person subject to this Act is accused of an offence to investigate all under Part V, the accusation shall be reported in the form of a charge charges.

to the accuseds commanding ofcer, and the commanding ofcer shall investigate the charge in the prescribed manner.

Charges against 81.

(1) After investigating a charge against an ofcer, the commanding ofcer shall either- ofcer.

19 of 1982, Sch.

(a) if the charge is one which he has power to deal with summarily and he considers that the charge should be so dealt with, deal summarily with the charge; or (b) in any other case, refer the charge in the prescribed manner to the appropriate superior authority: Provided that he may dismiss the charge if he is of the opinion that it ought not to be further proceeded with.

(2) Where the commanding ofcer deals with a charge summarily and records a nding of guilty, the punishments which he may award www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 51 to an ofcer of the rank of captain or corresponding rank or below are, subject to the limitations hereinafter provided, those set out in the following scale- (a) forfeiture of up to six months seniority of rank in the prescribed manner; (b) a ne not exceeding half a months pay; (c) severe reprimand; (d) reprimand; (e) admonition; (f) where the offence has occasioned any expense, loss or damage, stoppages.

(3) Where the commanding ofcer refers the charge to the appropriate superior authority, the appropriate superior authority shall either- (a) if the charge is one which he has power to deal with summarily and he considers that the charge should be so dealt with, deal summarily with the charge; or (b) in any other case, take the prescribed steps with a view to the charge being tried by court martial: Provided that the appropriate superior authority may refer the charge back to the accuseds commanding ofcer with a direction that it shall be dismissed or dealt with summarily, but without prejudice to the bringing of another charge if the appropriate superior authority so directs or if the commanding ofcer thinks t.

(4) Where the appropriate superior authority deals with a charge summarily and records a nding of guilty, the punishments which he may award are, subject to the limitations hereinafter provided, those set out in the following scale- (a) forfeiture of up to twelve months seniority of rank and the prescribed manner; (b) a ne not exceeding one months pay; (c) severe reprimand; www.kenyalaw.org CAP52.

199 Armed Forces [Rev.

2009 (d) reprimand; (e) admonition; (f) where the offence has occasioned any expense, loss or damage, stoppages.

(5) Where the commanding ofcer or the appropriate superior authority deals with a charge summarily and considers that the accused is guilty, then, if he intends to award a punishment of forfeiture of seniority of rank, a ne or stoppages- (a) a nding shall not be recorded until the accused has been afforded the opportunity of choosing to be tried by court martial; and (b) if the accused chooses to be tried by court martial, a nding shall not be recorded but the prescribed steps shall be taken with a view to the charge being tried by court martial.

(6) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence.

(7) Stoppages may be awarded either in addition to or without any other punishment.

(8) A severe reprimand or a reprimand may be awarded in addition to forfeiture of seniority of rank or a ne.

Charges against 82.

(1) After investigating a charge against a serviceman, the servicemen.

12 of 1978, s.

5.

commanding ofcer shall either- (a) if the charge is one which he has power to deal with summarily and he considers that the charge should be so dealt with, deal summarily with the charge; or (b) in any other case, take the prescribed steps with a view to the charge being tried by court martial: Provided that he may dismiss the charge if he is of the opinion that it ought not to be further proceeded with.

(2) Where the commanding ofcer refers the charge for trial by court martial, the convening ofcer to whom the charge is referred shall either- (a) if the charge is one which he considers should be so dealt www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 53 with, take the prescribed steps with a view to the charge being tried by court martial; or (b) refer the charge back to the commanding ofcer with a direction that it shall be dismissed or dealt with summarily, and in any such case the commanding ofcer shall comply with that direction.

(3) The reference back of a charge in pursuance of subsection (2) shall be without prejudice to the bringing of another charge if the appropriate superior authority so directs or if the commanding ofcer thinks t.

(4) Where the commanding ofcer deals with a charge summarily and records a nding of guilty, the punishments which he may award are, subject to the limitations hereinafter provided, those set out in the following scale- (a) if the accused is a warrant ofcer or a non-commissioned ofcer- (i) dismissal from the armed forces; (ii) reduction in rank to private or corresponding rank, or any less reduction in rank; (iii) forfeiture of seniority of rank in the prescribed man- ner; (iv) a ne of a sum not exceeding one months pay; (v) severe reprimand; (vi) reprimand; (vii) such minor punishments as may be prescribed; (viii) admonition; (ix) where the offence has occasioned any expense, loss or damage, stoppages; (b) if the accused is a serviceman other than a warrant ofcer or non-commissioned ofcer- (i) imprisonment for a term not exceeding forty-two days or, if the accused is on active service, active service punish- www.kenyalaw.org CAP54.

199 Armed Forces [Rev.

2009 ment for a period not exceeding forty-two days: Provided that, where more than one term of imprisonment or active service punishment is awarded in the course of the same hearing, the terms shall not exceed forty-two days in the aggregate; (ii) dismissal from the armed forces; (iii) a ne of a sum not exceeding one months pay; (iv) such minor punishments as may be prescribed; (v) admonition; (vi) where the offence has occasioned any expense, loss or damage, stoppages.

(5) Where the commanding ofcer deals with a charge summarily and considers that the accused is guilty, then, if he intends to award a punishment of dismissal from the armed forces, reduction in rank or stoppages- (a) a nding shall not be recorded until the accused has been afforded the opportunity of choosing to be tried by court martial; and (b) if the accused chooses to be tried by court martial, a nding shall not be recorded but the prescribed steps shall be taken with a view to the charge being tried by court martial: Provided that where the accused has not chosen to be tried by court martial the punishment of- (i) dismissal; (ii) reduction in rank of a warrant ofcer; or (iii) reduction in rank of senior sergeant or sergeant, or cor- responding rank, to private or corresponding rank, shall be subject to conrmation by the Commander.

(6) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence.

(7) Where a serviceman is sentenced to imprisonment he may in addition be sentenced to dismissal from the armed forces.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 55 (8) In the case of a warrant ofcer or non-commissioned ofcer, a severe reprimand or reprimand may be awarded in addition to forfeiture of seniority of rank or a ne.

(9) Where an offender is on active service on the day of the sentence, a ne may be awarded in addition to active service punishment.

(10) Stoppages may be awarded either in addition to or without any other punishment.

(11) Minor punishments may be awarded in addition to a ne.

83.

(1) Where a charge has been dealt with summarily and has Review of summary not been dismissed, the reviewing authority may at any time review ndings and awards.

12 of 1978, s.

6, the nding or award.

17 of 1979, Sch.

(2) Where on a review under this section it appears to the reviewing authority expedient, by reason of any mistake of law in the proceedings on the summary dealing with the charge or of anything occurring in those proceedings which in the opinion of the authority involved substantial injustice to the accused, to do so, the authority may quash the nding; and if the nding is quashed the authority shall also quash the award.

(3) Where on a review under this section it appears to the reviewing authority that- (a) a punishment awarded was invalid; or (b) a punishment awarded was too severe; or (c) where the award included two or more punishments, those punishments or some of them could not validly have been awarded in combination or are, taken together, too severe; or (d) a punishment awarded was too lenient, the authority may vary the award by substituting such punishment or punishments as the authority thinks proper, being a punishment or punishments which could have been included in the original award: Provided that no award shall be varied to the prejudice of the accused under this subsection unless he has had an opportunity of being heard by, or of making written representation to, the reviewing www.kenyalaw.org CAP56.

199 Armed Forces [Rev.

2009 authority.

(4) In this section, the reviewing authority means- (a) any ofcer superior in command to the ofcer who dealt summarily with the charge; or (b) the Commander; or (c) the Chief of General Staff, if the Commander was involved in the summary proceedings; or (d) the Defence Council.

part VIIICourts martIal Constitution of Courts Martial Trial by court 84.

Subject to this Act, a court martial shall have power to try martial.

any person subject to this Act for any offence which under this Act is triable by court martial, and to award for such an offence any punishment provided by this Act for that offence.

Ofcers having 85.

(1) A court martial may be convened by the Chief of General power to convene Staff or by the Commander.

court martial.

12 of l978, Sch., 17 of 1979, Sch.

(2) An order convening a court martial shall be signed either by the Chief of General Staff or by the Commander or by an ofcer not below the rank of major or corresponding rank authorized in writing by the Chief of General Staff to sign such orders on behalf of the Chief of General Staff or the Commander.

(3) An order convening a court martial and purporting to be signed by the Chief of General Staff, the Commander or an ofcer authorized under subsection (2) shall, in proceedings be presumed to have been so signed, and in the last-mentioned case the ofcer shall be presumed to have been duly authorized, until the contrary is proved.

Constitution of court 86.

(1) A court martial shall consist of a presiding ofcer and not martial.

less than two other members: 4 of 1973, Sch.

Provided that a court martial shall consist of a presiding ofcer and not less than four other members if- (i) an ofcer is to be tried; or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 57 (ii) the only punishment or the maximum punishment which can be awarded in respect of the charge before the court is death.

(2) The presiding ofcer of a court martial shall be a person who- (a) is an ofcer not below the rank of major or corresponding rank: Provided that, if the convening ofcer is of opinion that such an ofcer having suitable qualities is not available having regard to the exigencies of the service, and records his opinion in a written statement (which shall be conclusive of his opinion), the presiding ofcer may be an ofcer not below the rank of captain or corresponding rank; and (b) has been an ofcer for a period of not less than ve years or for periods amounting in the aggregate to not less than ve years, appointed in writing by the convening ofcer.

(3) The other members of a court martial shall be persons who have been ofcers for a period of not less than two years or for periods amounting in the aggregate to not less than two years, appointed in writing by the convening ofcer, and at least two of them shall be of or above the rank of captain or corresponding rank.

87.

(1) The convening ofcer shall not be a member of the court Disqualications for martial which he convenes.

membership of court martial.

(2) An ofcer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the accuseds commanding ofcer, and any other ofcer who has investigated the charge against the accused, or who under service law has held or been one of the persons holding an inquiry into matters relating to the subject-matter of the charge against the accused, shall not be a member of the court martial which tries that accused, nor shall he be judge advocate at the court martial.

88.

(1) A court martial shall sit at such place, whether within or Place for sitting of court martial.

outside Kenya, as is specied in the order convening it.

(2) If the convening ofcer directs a court martial which is sitting at some place to sit at some other place, or if a court martial sitting at some place considers it requisite in the interests of justice to sit at www.kenyalaw.org CAP58.

199 Armed Forces [Rev.

2009 some other place, it may adjourn for the purpose of sitting at that other place.

Appointment of judge advocate.

89.

Except with the written consent of the Attorney-General, there 12 of 1978, Sch., shall be a judge advocate at each court martial who shall be a magistrate 2 of 2002, s.

89.

or an advocate appointed by the Chief Justice.

Provisions Relating to Trial Challenge.

90.

(1) An accused about to be tried by a court martial shall be 4 of 1973, Sch.

entitled to object, on any reasonable grounds, to any member of the court, whether appointed originally or in place of another member.

(2) To enable the accused to avail himself of the right of objection conferred by subsection (1), the names of the members of the court shall be read out in the presence of the accused before they are sworn, and he shall be asked whether he objects to any of those members.

(3) Every objection to a member made by an accused shall be considered by the other members of the court.

(4) If the objection is to the presiding ofcer and not less than one- third of the other members of the court allow it, the court shall adjourn and the convening ofcer shall appoint another presiding ofcer.

(5) If the objection is to any other member of the court and not less than one-half of the members entitled to vote allow it, the member objected to shall retire and the vacancy may be, or if the number of members would be reduced below the legal minimum shall be, lled in the prescribed manner by another ofcer.

Oaths and 91.

(1) An oath shall be administered to every member of a court afrmations.

martial, to the judge advocate and to any person attending as ofcer under instruction, shorthand writer or interpreter.

(2) Every witness before a court martial shall give evidence on oath: Provided that- (i) if a child called as a witness does not in the opinion of the court understand the nature of the oath, his evidence may be received unsworn if in the opinion of the court he is sufciently intelligent to justify his evidence being received and understands the duty of speaking the truth, but where his evidence is given unsworn on behalf of the prosecution the accused may not be convicted upon www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 59 that evidence unless it is corroborated by some other material evidence supporting it and implicating the ac- cused; and (ii) if a person objects to being sworn on the ground either that he has no religious belief or that the taking of an oath is contrary to his religious belief, or if it is not reason- ably practicable to administer an oath to a person in the manner appropriate to his religious belief, he shall make an afrmation instead.

(3) An oath or afrmation required to be made under this section shall be in the prescribed form and shall be administered at the prescribed time, by the prescribed person and in the prescribed manner.

92.

(1) Subject to this section, a court martial shall sit in open Court martial to sit in court and in the presence of the accused.

open court.

(2) A court martial may sit in closed court if it considers it necessary or expedient in the interests of the administration of justice to do so; and without prejudice to that power a court martial may order that, subject to any exceptions the court may specify, the public shall be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part, as the case may be, might otherwise lead to disclosure of any information which might directly or indirectly endanger national security.

(3) A court martial shall sit in closed court while deliberating on its nding or sentence on any charge.

(4) A court martial may sit in closed court on any other deliberation amongst its members.

(5) Where a court martial sits in closed court, no person shall be present except the members of the court and such other persons as may be prescribed.

93.

(1) The rules as to the admissibility of evidence to be observed Evidence.

in proceedings before courts martial shall be the same as those observed in civil courts, and no person shall be required in proceedings before a court martial to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings before a civil court.

(2) Notwithstanding subsection (1), a statutory declaration shall, in a trial by court martial, be admissible as evidence of the facts declared www.kenyalaw.org CAP60.

199 Armed Forces [Rev.

2009 in it in a case where, and to the extent to which, oral evidence to similar effect would be admissible in that trial: Provided that a statutory declaration shall not be admitted in evidence in a trial by court martial on behalf of either the prosecution or the defence- (i) where the declaration is put forward on behalf of the prosecution, unless a copy of the declaration has, not less than seven days before the commencement of the trial, been delivered to the accused; nor (ii) where the declaration is put forward on behalf of the defence, unless a copy of the declaration has, not less than seven days before the commencement of the trial, or within such shorter period as the court may allow, been delivered to the commanding ofcer of the ac- cused; nor (iii) in any case, if, within three days before the commence- ment of the trial or such longer period as the court may in special circumstances allow, the accused or the com- manding ofcer of the accused has delivered a notice in the prescribed form to the other of them requiring that oral evidence shall be given instead of a statutory declaration; nor (iv) in any case, if the court martial is of the opinion that it is desirable in the interests of justice that oral evidence should be given instead of a statutory declaration and records that it is of that opinion.

(3) A court martial shall take judicial notice of all matters of common knowledge, including all matters within the general service knowledge of the court, and of all other matters of which judicial notice would be taken in a civil court.

Privileges of 94.

A witness before a court martial or any other person whose witnesses and others.

duty it is to attend the court is entitled to the same immunities and privileges as a witness before the High Court.

Contempt of court 95.

Where in Kenya any person other than a person subject to martial by civilian.

this Act- 4 of 1973, Sch.

(a) having been duly summoned to attend as a witness before a court martial, fails to comply with the summons; or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 61 (b) refuses to swear an oath when duly required by a court martial to do so; or (c) refuses to produce any document in his custody or under his control which a court martial has lawfully required him to produce; or (d) refuses, when a witness, to answer any question which a court martial has lawfully required him to answer; or (e) wilfully insults any person who is a member of a court martial or a witness or any other person whose duty it is to attend the court, while that person is acting as a member of the court or is so attending, or wilfully insults any such person as aforesaid while that person is going to or returning from the proceedings of the court; or (f) wilfully interrupts the proceedings of a court martial or otherwise misbehaves before the court; or (g) does any other thing which would, if the court martial had been a court of law having power to commit for contempt, have been contempt of that court, the presiding ofcer of the court martial may in writing report the contempt to any court of law having jurisdiction in the place where the contempt is alleged to have been committed, being a court having power to commit for contempt, and that court of law may thereupon inquire into the reported contempt and, after hearing any witnesses who may be produced against or on behalf of the person charged with the contempt, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in the same way as if he had been guilty of contempt of the court to which the contempt is reported.

96.

(1) An accused charged before a court martial with an offence Power to convict of under Part V may, if it is not proved that the offence was committed offence other than in circumstances involving a greater punishment, be convicted of the that charged.

offence as having been committed in circumstances involving a less punishment.

(2) An accused charged before a court martial with an offence may be convicted of attempting to commit that offence.

(3) An accused charged before a court martial with attempting to commit an offence may be convicted on that charge notwithstanding www.kenyalaw.org CAP62.

199 Armed Forces [Rev.

2009 that it is proved that he actually committed the offence, (4) Where an accused is charged before a court martial under section 69 with attempting to commit a civil offence, he may be convicted on that charge notwithstanding that it is proved that he actually committed the civil offence.

(5) Where an accused is charged before a court martial with an offence under section 69, and- (a) the corresponding civil offence is one in proceedings for which, if he had been tried by a civil court for committing the offence in Kenya, he might have been convicted of another civil offence; and (b) the court nds that he has committed that other civil offence, he may be convicted of an offence under section 69 in respect of the commission of that other civil offence.

(6) An accused charged before a court martial with one of the offences specied in the rst column of the First Schedule, may be convicted of the offence bearing the same number in the second column of that Schedule.

Dissolution of court 97.

(1) If, whether before or after the trial has begun, it appears martial.

to the convening ofcer necessary or expedient in the interests of the 4 of 1973, Sch.

administration of justice that a court martial should be dissolved, the convening ofcer may by order dissolve the court martial.

(2) Without prejudice to the generality of subsection (1), if after the trial has begun- (a) the court is, by reason of the death of one of the members or for any other reason, reduced below the legal minimum, the convening ofcer shall dissolve the court; (b) it is represented to the convening ofcer that owing to the sickness or other incapacity of the accused it is impracticable having regard to all the circumstances to continue the trial within a reasonable time, the convening ofcer may dissolve the court.

(3) If after the trial has begun the presiding ofcer of the court dies or is otherwise unable to attend and the court is not reduced below the legal minimum, then- www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 63 (a) if the senior of the other members of the court is not below the rank of captain or corresponding rank, the convening ofcer may appoint him presiding ofcer of the court and the trial shall proceed accordingly; and (b) if he is below that rank, the convening ofcer shall dissolve the court.

(4) Where a court martial is dissolved under this section, the accused may be tried by another court martial.

98.

(1) Subject to this section, every question to be determined on Decision of court a trial by court martial shall be determined by a majority of the votes martial.

of the members of the court.

4 of 1973, Sch.

(2) In the case of an equality of votes on the nding, the court shall acquit the accused.

(3) A conviction where the only punishment which the court can award is death shall not have effect unless it is reached with the concurrence of all members of the court; and, where all the members do not concur in a conviction in such a case, the court shall be dissolved and the accused may be tried by another court.

(4) Where the accused is convicted and the court has power to sentence him either to death or to some other punishment, sentence of death shall not be passed without the concurrence of all the members of the court.

(5) In the case of an equality of votes on the sentence, or on any question arising after the trial has begun, except the nding, the presiding ofcer of the court shall have a second or casting vote.

99.

(1) Without prejudice to section 92, the nding of a court Finding and sentence.

martial on each charge shall be announced in open court.

(2) A conviction shall be, and shall be announced as being, subject to conrmation.

(3) The sentence of a court martial, together with any recommendation to mercy, shall be announced in open court, and every sentence of a court martial shall be, and shall be announced as being, subject to conrmation.

www.kenyalaw.org CAP64.

199 Armed Forces [Rev.

2009 Finding of Insanity Where accused 100.

(1) Where, on the trial of a person by court martial, the court incapable of making is of the opinion that he is of unsound mind and consequently incapable defence.

of making his defence, the court shall so nd.

(2) A nding under subsection (1) shall not have effect until it is- (a) conrmed by an ofcer who would have had power to conrm a nding of guilty made by the same court martial; and (b) promulgated.

(3) Where a nding under subsection (1) has been conrmed and promulgated, it shall forthwith be reported to the President, and the accused shall be kept in custody during the Presidents pleasure in such place and manner as the President may direct, and pending the Presidents directions the accused shall be kept in service custody.

Where accused 101.

(1) Where, on the trial of a person by court martial, the court insane.

is of the opinion that he did the act or made the omission charged but was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission was made, it shall make a special nding that the accused was guilty of the act or omission charged but was insane as aforesaid when he did the act or made the omission.

(2) Where under subsection (1) the court or the conrming ofcer comes to or substitutes a nding of guilty but insane, the conrming ofcer or the reviewing authority, as the case may be, shall not have power to substitute for that nding a nding of guilty; but otherwise the provisions of this Act as to revision, conrmation and review (and in particular the provisions which confer power to substitute for a nding any other nding which could have been come to by the same court martial) shall apply in relation to a nding under subsection (1) as they apply in relation to a nding of guilty.

(3) Where a nding under subsection (1) has been conrmed and promulgated, it shall forthwith be reported to the President, and the accused shall be kept in custody during the Presidents pleasure in such place and manner as the President may direct, and pending the Presidents directions the accused shall be kept in service custody.

Punishments Punishment of 102.

(1) The punishments which may be awarded to an ofcer www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 65 by sentence of a court martial are, subject to the limitations hereinafter ofcers.

provided, those set out in the following scale- (a) death; (b) imprisonment; (c) dismissal from the armed forces; (d) reduction in rank by one rank; (e) forfeiture of seniority of rank in the prescribed manner; (f) a ne not exceeding the equivalent of three months pay; (g) severe reprimand or reprimand; (h) admonition; (i) where the offence has occasioned any expense, loss or damage, stoppages; and in relation to an ofcer references in this Act to punishments are references to those punishments.

(2) For the purposes of this Act, a punishment specied in any paragraph of the scale contained in subsection (1) shall be treated as less than the punishments specied in the preceding paragraphs, and greater than those specied in the succeeding paragraphs, of the scale.

(3) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence.

(4) Stoppages may be awarded either in addition to or without any other punishment.

(5) A severe reprimand or a reprimand may be awarded in addition to forfeiture of seniority of rank or a ne.

(6) Where an ofcer is sentenced by a court martial to imprisonment, he shall also be sentenced to dismissal from the armed forces; and, if the court martial fails to sentence him to such dismissal, the sentence of imprisonment shall not be invalid but shall be deemed to include a sentence of such dismissal.

Punishment of servicemen.

103.

(1) The punishments which may be awarded to a serviceman by sentence of a court martial are, subject to the limitations hereinafter www.kenyalaw.org CAP66.

199 Armed Forces [Rev.

2009 provided, those set out in the following scale- (a) death; (b) imprisonment; (c) dismissal from the armed forces; (d) where the offender is on active service on the day of the sentence, active service punishment for a period not exceeding ninety days; (e) in the case of a warrant ofcer or non-commissioned ofcer, reduction in rank to private or corresponding rank, or any less reduction in rank; (f) in the case of a warrant ofcer or non-commissioned ofcer, forfeiture of seniority of rank in the prescribed manner; (g) a ne not exceeding the equivalent of three months pay; (h) in the case of a warrant ofcer or non-commissioned ofcer, severe reprimand or reprimand; (i) admonition; (j) where the offence has occasioned any expense, loss or damage, stoppages.

(2) For the purposes of this Act, a punishment specied in any paragraph of the scale contained in subsection (1) shall be treated as less than the punishments specied in the preceding paragraphs, and greater than those specied in the succeeding paragraphs, of the scale.

(3) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence.

(4) Where a serviceman is sentenced by a court martial to imprisonment, he may in addition be sentenced to dismissal from the armed forces.

(5) Where a warrant ofcer or non-commissioned ofcer is sentenced by a court martial to imprisonment or active service punishment, he shall also be sentenced to reduction in rank to private or corresponding rank; and, if the court martial fails to sentence him to such reduction in rank, the sentence shall not be invalid but shall be deemed to include a sentence of such reduction in rank.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 67 (6) In the case of a warrant ofcer or non-commissioned ofcer, a severe reprimand or a reprimand may be awarded by a court martial in addition to forfeiture of seniority of rank or a ne.

(7) Where an offender is on active service on the day of the sentence, a ne may be awarded in addition to active service punishment.

(8) Stoppages may be awarded by a court martial either with or without any other punishment.

(9) Active service punishment shall consist of such duties or drills (in addition to those which the offender might be required to perform if he were not undergoing punishment) and such loss of privileges, as may be prescribed, and may include connement in such place and manner as may be prescribed and such personal restraint which is necessary to prevent the escape of the offender as may be prescribed.

104.

(1) The following provisions shall have effect where a Restitution or person has been convicted by court martial, or having been dealt with compensation for summarily has been found guilty, of unlawfully obtaining any property, theft, etc.

whether by stealing it, by receiving or retaining it knowing or having reason to believe it to have been stolen, by fraudulently misapplying it or by any other means.

(2) If any of the property unlawfully obtained has been found in the possession of the offender, it may be ordered to be delivered or paid to the person appearing to be its owner.

(3) If there has been found in the possession of the offender any property (other than money) appearing to have been obtained by him by the conversion or exchange of any of the property unlawfully obtained, the property may be ordered to be delivered to the person appearing to be the owner of the property unlawfully obtained.

(4) Where money is found in the possession of the offender, whether or not it appears to have been obtained as aforesaid, or any pay or other money is due or is to become due to the offender, an order may be made that the person appearing to be the owner of the property unlawfully obtained shall be paid a specied sum out of that money as or towards compensation for the loss caused to him by the offence, in so far as not otherwise made good under this Act or by the recovery of the property unlawfully obtained.

(5) Where any of the property unlawfully obtained has been sold or given in pawn to some other person who did not then know that it had www.kenyalaw.org CAP68.

199 Armed Forces [Rev.

2009 been unlawfully obtained, an order may be made that that other person, upon restoring to its owner the property sold or given as aforesaid, shall be paid a specied sum out of any money found in the possession of the offender (whether or not the money appears to be proceeds of the sale or giving in pawn) or out of any pay or other money due or to become due to the offender, as or towards compensation for the loss caused to him in consequence of the sale or giving in pawn.

(6) Where any of the property unlawfully obtained has been given in exchange to some other person who did not then know that it had been unlawfully obtained, an order may be made that that other person, upon restoring to its owner the property given as aforesaid, shall have restored to him the property given by him in exchange for the property unlawfully obtained.

(7) An order under this section may be made by the court martial by whom the offender is convicted or by the commanding ofcer or appropriate superior authority making the nding of guilty, as the case may be, or by the conrming ofcer or by any reviewing authority; and in this section appearing means appearing to the court, ofcer or authority making the order.

(8) An order made under this section by a court martial shall not have effect until it is conrmed by the conrming ofcer; and the provisions of this Part as to the conrmation, revision and review of the proceedings of court martial shall apply to an order under this section as they apply to a sentence.

(9) The operation of an order under this section shall be suspended- (a) if an application for leave to appeal to the High Court against the conviction is duly lodged, until either the application is nally refused or is withdrawn or the appeal is determined or abandoned; (b) in any other case, until the expiration of the period prescribed under Part IX as the period within which such an application may be made, and where the operation of such an order is suspended by this section- (i) it shall not take effect if the conviction is quashed on appeal; (ii) the High Court may by order annul or vary the order www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 69 although the conviction is not quashed; (iii) the prescribed steps shall be taken for the safe custody, during the period during which the operation of the order is suspended, of the property ordered to be restored or the money ordered to be paid.

(10) Notwithstanding subsection (9) an order under this section shall not be suspended, so far as it relates to the restoration of property to the person appearing to be its owner, if the court, ofcer or authority making the order directs to the contrary in any case in which the title to the property appears to be undisputed.

(11) An order under this section shall not bar the right of any person, other than the offender or a person claiming through him, to recover any property delivered or money paid in pursuance of the order from the person to whom it is delivered or paid.

PromulgationPetitions 105.

Any nding, sentence, determination or other thing required Promulgation of by this Act to be promulgated shall be promulgated either by being nding or sentence.

communicated to the accused or in such other manner as may be prescribed or as the conrming ofcer or reviewing authority, as the case may be, may direct.

106.

(1) At any time after a court martial has convicted and Petition against sentenced a person, but not later than the prescribed time after nding or sentence.

conrmation is completed, the convicted person may in the prescribed manner present a petition against the conviction or the sentence or both.

(2) Where the person is sentenced to death, the sentence shall not be executed until his case has been reviewed under section 111.

Conrmation, Revision and Review 107.

Where a court martial convicts a person of an offence, the Conviction and record of the proceedings of the court martial shall be transmitted to a sentence to be conrmed.

conrming ofcer for conrmation of the conviction and the sentence of the court.

108.

(1) A conrming ofcer shall deal with the conviction and Powers of conrming sentence of a court martial either- ofcer.

(a) by withholding conrmation, if he is of opinion that the nding of the court is unreasonable, or cannot be supported, www.kenyalaw.org CAP70.

199 Armed Forces [Rev.

2009 having regard to the evidence, or involves a wrong decision on a question of law, or that on any ground there was a miscarriage of justice; or (b) by conrming the conviction or sentence; or (c) by referring the conviction or sentence or both for conrmation to a higher conrming ofcer; or (d) by directing that a court martial shall revise the conviction under section 110.

(2) Instead of withholding conrmation of the conviction, a conrming ofcer may, if- (a) some other conviction could have been validly made by the court martial on the charge before it; and (b) he is of opinion that the court martial must have been satised of the facts necessary to justify that other conviction, substitute that other conviction, and if he does so he shall consider in what manner, if at all, the powers conferred by subsection (4) should be exercised.

(3) Where it appears to a conrming ofcer that a sentence is invalid, he may instead of withholding conrmation of the sentence substitute for it a sentence of any punishment or punishments which could have been awarded by the court martial, not being greater than the punishment or the greatest of the punishments awarded by the court and not in his opinion more severe than that punishment or those punishments.

(4) In conrming a sentence, a conrming ofcer may- (a) remit in whole or in part any punishment awarded by the court martial; or (b) commute any such punishment for one or more of the punishments provided by this Act, being less than the punishment commuted.

(5) In conrming a sentence, a conrming ofcer may postpone the carrying out of the sentence for such time as he considers expedient, and a conrming ofcer may extend or terminate any postponement made under this subsection.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 71 (6) A conviction, nding or sentence substituted by the conrming ofcer, or any sentence having effect after the conrming ofcer has remitted or commuted punishment, shall be treated for all purposes as a conviction, nding or sentence of the court duly conrmed.

(7) The conrmation of a conviction or sentence shall not be deemed to be completed until the conviction or sentence has been promulgated; and in the event of any such substitution, remission or commutation as aforesaid the conviction, nding or sentence shall be promulgated as it has effect after the substitution, remission or commutation.

(8) Where the conrming ofcer withholds conrmation, the decision shall be promulgated and shall have effect as from the date of promulgation.

109.

(l) Subject to this section, the following shall have power to Conrming ofcers.

conrm the conviction and sentence of a court martial, that is to say- (a) the convening ofcer of the court martial or any ofcer superior in command to him; or (b) failing him, an ofcer appointed by the Defence Council to act as conrming ofcer, whether for a particular case or for a particular class of cases.

(2) The following persons shall not have power to conrm the conviction or sentence of a court martial- (a) a person who was a member of the court martial; (b) a person who as commanding ofcer of the accused investigated the allegations against him, or who is for the time being the commanding ofcer of the accused; (c) a person who, as appropriate superior authority, investigated the allegations against the accused.

(3) An authorization authorizing the convening of a court martial may reserve for conrmation by superior authority convictions or sentences, or both, in such circumstances as may be specied by or under the authorization, and the powers conferred by subsection (1) shall be exercisable subject to any such reservation.

(4) Where a person is convicted by a court martial held on board a ship and is disembarked before the conviction or sentence has been conrmed, it may be conrmed by any ofcer having command over www.kenyalaw.org CAP72.

199 Armed Forces [Rev.

2009 the person or over the area in which he then is, being an ofcer having power to conrm convictions and sentences of courts martial of the same kind.

Revision of 110.

(1) A conrming ofcer may direct that a court martial shall conviction of court revise any conviction made by the court in any case where it appears martial.

to him that- (a) the conviction was against the weight of evidence; or (b) some question of law determined at the trial and relevant to the conviction was wrongly determined.

(2) Any such direction shall be accompanied by the necessary directions for the reassembly of the court, and shall contain a statement of the reasons for the direction.

(3) On a revision of a conviction, the court shall reconsider the conviction, and (unless the court adheres to it) may substitute for it either a nding of not guilty or any other nding which the court could originally have made at the trial in place of the conviction.

(4) On a revision of a conviction the court shall not have power to hear further evidence.

(5) Where on a revision of a conviction the court either adheres to the conviction or substitutes for it a conviction of another offence, or of the same offence in different circumstances, the court may substitute a different sentence for the original sentence: Provided that the court shall not have power to substitute a sentence of a punishment greater than the punishment or the greatest of the punishments awarded by the original sentence, or to substitute a sentence which in the opinion of the court is more severe than the original sentence.

(6) The conrming ofcer shall not have power to direct the revision of any substituted conviction or nding come to by the court on a previous direction of the conrming ofcer, or the revision of the original conviction if adhered to by the court on such a previous direction; but otherwise this Act shall apply to the proceedings of the court on any such revision as it applies to their deliberations on the original nding or sentence, and any substituted conviction, nding or sentence shall be treated for all purposes as an original conviction, nding or sentence of the court: Provided that the decision of the court on the revision shall not www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 73 be required to be announced in open court.

111.

(1) A conviction or sentence which has been conrmed may at Review of ndings and sentences of any time be reviewed by a reviewing authority, and if after conrmation court martial.

of a conviction or sentence a petition is duly presented under section 106 against the conviction or sentence then, subject to this section, the conviction or sentence shall be so reviewed as soon as practicable after the presentation of the petition and after consideration of the matters set forth in it: Provided that if the petitioner also appeals or has appealed under Part IX the review need not be made or continued.

(2) The reviewing authorities for the purposes of this Act- (a) the Defence Council; or (b) any ofcer superior in command to the conrming ofcer.

(3) A conviction and a sentence of a court martial shall not be treated as a conviction or a sentence of the court until conrmed: Provided that- (i) this subsection does not affect the keeping of the accused in custody pending conrmation, revision or approval, or pending the disposal of a petition or appeal; and (ii) a sentence of death passed on a person on active service and the conviction in consequence of which it was passed need not be reviewed if in the opinion of the conrming ofcer it is essential in the interests of discipline and for securing the safety of the force with which the person sentenced is present that the sentence should be carried out at once, and the conrming ofcer records that opin- ion on conrming the sentence.

(4) On a review under this section, the reviewing authority may- (a) in so far as the review is of a conviction, quash the conviction and, if the sentence relates only to the conviction quashed, the sentence; or (b) in so far as the review is of a sentence, quash the sentence; or www.kenyalaw.org CAP74.

199 Armed Forces [Rev.

2009 (c) in any case, exercise the like powers of substituting convictions and ndings, substituting sentences and remitting or commuting punishment as are conferred on a conrming ofcer by subsections (2), (3) and (4) of section 108, and any substituted conviction, nding or sentence, or sentence having effect after the remission or commutation of punishment, shall be treated for all purposes as a sentence of the court duly conrmed.

(5) Where a reviewing authority exercises any of the powers conferred by subsection (4), the determination of the authority shall be promulgated and shall have effect as from the promulgation thereof.

Reconsideration 112.

(1) A sentence of imprisonment may be reconsidered by of sentences of the Commander; and if on any such reconsideration it appears that the imprisonment.

conduct of the offender since his conviction has been such as to justify remission of the sentence, whether in part or in whole, the Commander may remit it accordingly.

(2) The power to reconsider a sentence may be exercised at any time after conrmation, and where after a review a sentence remains effective it shall be reconsidered at such intervals as may be prescribed: Provided that delay in complying with this subsection does not invalidate the sentence.

Death sentence 113.

Without prejudice to section 124, a sentence of death shall requires Presidents not be carried out unless it has been approved by the President: approval.

Provided that a sentence of death passed on a person on active service may be carried out without the approval of the President under that section, where in the opinion of the conrming ofcer it is essential in the interests of discipline and for securing the safety of the force with which the person sentenced is present that the sentence should be carried out at once, and the conrming ofcer records that opinion on conrming the sentence.

Custody of court 114.

(1) The record of the proceedings of a court martial shall be martial records and kept in the custody of the Commander for the prescribed period.

right of accused to copy.

(2) Subject to this section, a person tried by a court martial shall be entitled to obtain from the Commander on demand at any time within the prescribed period a copy of the record of the proceedings of the court, on payment of the prescribed fee.

(3) Where a person tried by court martial dies within the prescribed www.kenyalaw.org Rev.

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199 75 period, his personal representative or any person who in the opinion of the Commander ought to be treated as his personal representative for the purposes of this section shall, subject to this section, be entitled to obtain from the Commander on demand at any time within the prescribed period a copy of the record of the proceedings of the court, on payment of the prescribed fee.

(4) If a person applies for a copy of the record of any proceedings under subsection (2) or subsection (3), and the Minister certies that it is requisite for reasons of security that the proceedings or a part thereof should not be disclosed, the applicant shall not be entitled to a copy of the proceedings or of that part.

(5) In this section, the prescribed period, in relation to any person tried by court martial, means the period of ve years beginning with the date of his acquittal or, where he was convicted, of the promulgation of the conviction and sentence or, where a conviction was not conrmed, of the promulgation of the withholding of conrmation: Provided that, where the proceedings relate to two or more charges and the person tried was acquitted on one or more of the charges and convicted on another or others, the prescribed period shall be the period of ve years beginning with the date of the promulgation of the conviction or convictions and the sentence thereon or of the withholding of conrmation of that conviction or those convictions.

(6) A reference in this section to the record of the proceedings of a court martial includes a reference to the record of any proceedings with respect to the conrmation, revision or review of the conviction and sentence of the court martial.

part IXappeals from Courts martIal Appeal to High 115.

(1) Subject to this Part, where a person has been convicted Court.

by a court martial- 14 of 1971, Sch., 19 of 1984.

(a) the person convicted may, with the leave of the High Court given pursuant to section 116, appeal to the High Court against the conviction, or against the sentence, or against both; (b) the Attorney-General may, in any case, within forty days of the promulgation of the conviction, appeal to the High Court against the sentence.

(2) Subject to this Part, where a person has been acquitted of a charge by a court martial, the Attorney-General may, within forty days www.kenyalaw.org CAP76.

199 Armed Forces [Rev.

2009 of the acquittal, appeal to the High Court against the acquittal.

(3)The decision of the High Court on any appeal under this Act shall be nal and shall not be subject to any further appeal.

Application for leave 116.

(1) Leave to appeal to the High Court shall not be given unless to appeal.

an application is made by or on behalf of the appellant, and lodged with the registrar, within forty days of the promulgation of the conviction.

(2) An application for leave to appeal shall be in the prescribed form and shall specify the grounds on which leave to appeal is sought, and shall give such other particulars as may be prescribed.

(3) Except in the case of a conviction involving sentence of death, the High Court may extend the period within which an application for leave to appeal must be lodged, whether that period has expired or not.

(4) In considering whether or not to give leave to appeal, the High Court shall have regard to any expression of opinion made by a judge advocate that the case is at one for appeal, and, if any such expression is made, may without further proceedings give leave to appeal.

(5) Where the High Court dismisses an application for leave to appeal, it may, if it considers the application frivolous or vexatious, order that any sentence passed by the court martial shall run from the day on which the Court dismisses the application.

Appellant may 117.

An appellant may, if he so desires, present his case in present case in writing.

writing.

14 of 1971, Sch.

Determination of 118.

(1) Subject to section 119, the High Court shall allow an appeal in ordinary appeal against conviction and quash the conviction if it considers that cases.

the conviction- (a) is unreasonable; or (b) cannot be supported, having regard to the evidence; or (c) involves a wrong decision on a question of law, or that on any ground there was a miscarriage of justice, and otherwise it shall dismiss the appeal: Provided that the High Court may, notwithstanding that it www.kenyalaw.org Rev.

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199 77 considers that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) The court shall allow an appeal against acquittal and convict the accused if it considers that- (a) the evidence was such that the person acquitted should have been convicted; or (b) the acquittal involves a wrong decision on a question of law, and shall pass such sentence as it thinks proper, and otherwise it shall dismiss the appeal; and section 96 shall apply as it applies to a trial by court martial.

(3) On an appeal against sentence, the court may reduce or increase the sentence or alter the nature of the sentence, as it thinks proper.

119.(1) If the High Court considers that an appellant- Powers of court in special cases.

(a) was not properly convicted on a particular charge brought against him before the court martial which tried him; but (b) was properly convicted on some other charge so brought, then, if the sentence passed by the court martial on the appellant was not one which could lawfully be passed for the offence of which he was convicted on that other charge, the High Court shall pass on the appellant such sentence as it thinks proper, in substitution for the sentence passed on him by the court martial.

(2) Where an appellant has been convicted of an offence, and - (a) the court martial by which he was tried could lawfully have convicted him of some other offence; and (b) it appears to the High Court that the court martial must have been satised of facts which proved him guilty of that other offence, the High Court may, instead of allowing or dismissing the appeal, substitute for the nding of the court martial a nding of guilty of the other offence and pass on the appellant such sentence as it thinks proper (being a sentence which could lawfully have been passed for that other offence and not one of greater severity), in substitution for the sentence www.kenyalaw.org CAP78.

199 Armed Forces [Rev.

2009 passed on him by the court martial.

(3) Where- (a) an appellant has been convicted of an offence committed in circumstances involving the greater of two punishments, and it appears to the High Court that the court martial ought to have found him guilty of an offence as being committed in circumstances involving the less punishment; or (b) an appellant has been convicted of an offence and it appears to the High Court that the court martial ought to have convicted him of the offence subject to exceptions or variations, the High Court may, instead of allowing or dismissing the appeal, substitute for the conviction a conviction of the offence as being committed in circumstances involving the less punishment or, as the case may be, a conviction of the offence subject to exceptions or variations, and pass on the appellant such sentence as it thinks proper (being a sentence which could lawfully have been passed for the offence specied or involved in the substituted nding and not one of greater severity) in substitution for the sentence passed on him by the court martial.

(4) If on an appeal the High Court considers that the appellant did the act or made the omission charged but was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission was made, it shall quash the conviction and substitute a special nding that the appellant was guilty of the act or omission charged but was insane as aforesaid when he did the act or made the omission, and section 101 (3) shall apply accordingly.

(5) The term of any sentence of imprisonment passed by the High Court under this section shall, unless the High Court otherwise directs, run from the time from which it would have run if it had been passed in the proceedings appealed against, and a sentence passed by the High Court shall be deemed for the purposes of this Act to be a sentence passed by the court martial and conrmed.

Court may appoint 120.

The High Court may appoint a person with special or expert assessor.

knowledge to act as assessor, if the court considers that such knowledge is required for the proper determination of an appeal before it.

121.

(Repealed by 12 of 1978, Sch.).

Proceedings to be 122.

An appellant shall not be entitled to be present at the hearing heard in absence of of an appeal or at any proceedings preliminary or incidental to such an www.kenyalaw.org Rev.

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199 79 appeal, except where- appellant.

(a) rules of court provide that he shall have the right to be present; or (b) the High Court gives him leave to be present; and accordingly any power of the High Court under this Part to make a determination or pass a sentence may be exercised notwithstanding the absence of the appellant.

123.

Where a person appeals against his conviction, the Attorney- Defence on appeal.

General shall make arrangements for the defence of the appeal.

124.

Where a person is convicted by court martial and sentenced Person sentenced to death- to death to have opportunity to appeal.

(a) the sentence shall not be executed until after the expiration of the period within which an application for leave to appeal to the High Court against the conviction may be lodged; and (b) if such an application is duly lodged, the sentence shall not be executed until either the application is nally refused or is withdrawn or (if it is granted) the appeal is determined or abandoned: Provided that the foregoing provisions of this section do not apply to a sentence of death passed on a person on active service, where in the opinion of the conrming ofcer it is essential in the interests of discipline and for securing the safety of the force with which the person sentenced is present that the sentence should be carried out at once, and the conrming ofcer records that opinion on conrming the sentence.

125.

An appellant, when in custody, shall be taken to, kept in Removal of prisoner.

custody at and brought back from any place at which he is entitled to be present for the purposes of this Part in the prescribed manner, and the High Court may order him to be taken to any prescribed place for the purpose of any proceedings of the High Court.

126.

Upon the hearing of an appeal under this Part, the High Court Composition of shall consist of one or more judges.

court.

127.

In the case of an appeal, or an application for leave to appeal, Furnishing of under this Part, it shall be the duty of the Commander to furnish to the documents.

registrar, in accordance with rules of court, a record of the proceedings of the court martial including any proceedings with respect to the www.kenyalaw.org CAP80.

199 Armed Forces [Rev.

2009 conrmation, revision or review of the conviction and sentence of the court martial, and any petition presented by the person convicted.

Duties of registrar.

128.

(1) The registrar shall take all necessary steps for obtaining the determination of an application or appeal under this Part, and shall obtain and lay before the High Court in proper form all documents, exhibits and other things relating to the proceedings before the court martial which appear necessary for the proper determination of the application or appeal.

(2) The registrar shall furnish the necessary forms and instructions relating to applications for leave to appeal under this Part to any person who asks for them, to persons in charge of prisons and to such other persons as he thinks t; and every person in charge of a prison shall cause the forms and instructions so furnished to be placed at the disposal of persons imprisoned who desire to make application for leave to appeal under this Part.

Saving of prerogative 129.

Nothing in this Part affects the exercise of the Presidents of mercy.

prerogative of mercy.

Procedure.

130.

Subject to this Part and to any rules of court, the provisions Cap.

75.

of the Criminal Procedure Code relating to the hearing of appeals from subordinate courts shall apply to the hearing and determination of appeals under this Part.

part XproVIsIons ConCernIng trIal and punIshment Commencement 131.

Subject to sections 108 (5), 116 (5) and 135, a sentence of of sentence of imprisonment or of active service punishment in respect of an offence imprisonment.

under Part V shall run from the beginning of the day on which sentence was originally pronounced by the court martial or was originally awarded by the commanding ofcer, as the case may be: Provided that, where a person after being convicted or found guilty of an offence is convicted or found guilty of another offence either before sentence is passed upon him under the rst conviction or before the expiration of that sentence, any sentence of imprisonment or active service punishment which is passed upon him in respect of the subsequent conviction shall be executed after the expiration of the former sentence, unless the court martial or other authority imposing the sentence directs that it shall be executed concurrently with the former sentence or any part thereof.

Duration of sentence of imprisonment.

132.

(1) Where a person serving a sentence of imprisonment in www.kenyalaw.org Rev.

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199 81 respect of an offence under Part V becomes unlawfully at large during the currency of the sentence, no account shall be taken, in calculating the period for which he is liable to be imprisoned in pursuance of the sentence, of the time beginning with the day on which he became at large and ending with the day on which he is taken into service custody or the custody of a civil authority or (not having been taken into such custody) returns to the place in which he was imprisoned before he become unlawfully at large: Provided that, if he satises the prescribed authority that during any part of such time he was in the custody of a civil authority otherwise than on account of an offence committed by him while unlawfully at large, such part shall not be disregarded in calculating the period for which he is liable to be imprisoned in pursuance of the sentence.

(2) In subsection (1), civil authority means an authority, other than a service authority, of Kenya or of a foreign country (including a police ofcer), authorized by law to detain persons.

(3) A person who- (a) is serving a sentence of imprisonment in a civil prison in respect of an offence under Part V; and (b) after being temporarily released under some law, is at large at any time during the period for which he is liable to be imprisoned in a civil prison in pursuance of his sentence, shall be deemed to be unlawfully at large if the period for which he was temporarily released has expired or if an order recalling him has been made in pursuance of that law.

(4) Without prejudice to subsection (1), where any person serving a sentence of imprisonment for an offence under Part V has in the prescribed circumstances been temporarily released on compassionate grounds, no account shall be taken, in calculating the period for which he is liable to be imprisoned in pursuance of the sentence, of the time beginning with the day after that on which he is released and ending with the day on which he is required to return to custody.

(5) A person who is- (a) released as mentioned in subsection (4) for any period; or (b) otherwise allowed out of service custody, in pursuance of regulations made under this Act, for any period or subject to any condition, www.kenyalaw.org CAP82.

199 Armed Forces [Rev.

2009 shall, on failure to return at the expiration of the period or to comply with the condition, be treated for the purposes of subsection (1) as being unlawfully at large.

Service of sentence 133.

Where a sentence of imprisonment is passed on or awarded of imprisonment to a person for an offence under Part V, the persons commanding ofcer shall cause him to be sent to a prison and the superintendent or other person in charge of the prison shall receive him and imprison him until he has served his sentence or the person is otherwise lawfully required to be delivered from the prison.

Committed to civil 134.

A person who is sentenced to death or imprisonment, and who prison.

is committed or transferred to a civil prison shall while in that prison be imprisoned and otherwise dealt with in the same manner as a person imprisoned therein under a similar sentence of civil court.

Suspension 135.

(1) Without prejudice to section 108 (5), a conrming ofcer, of sentence or in conrming a sentence passed by a court martial on a serviceman, may punishment.

order that the sentence shall be suspended wholly or in part.

(2) A commanding ofcer may recommend to the Commander that a punishment awarded on a case being dealt with summarily shall be suspended wholly or in part, and the Commander may order that the sentence be suspended wholly or in part accordingly.

(3) A sentence passed on or punishment awarded to a serviceman which is not for the time being suspended may, on the review or reconsideration of the sentence or punishment be suspended wholly or in part by order of the authority reviewing or reconsidering the sentence or punishment.

(4) The suspension under this section of a sentence or punishment may (without prejudice to its again being re-effected) be terminated on review or reconsideration of a sentence or punishment by an order of the authority reviewing or reconsidering the sentence or punishment.

(5) A sentence or punishment which is suspended shall be reviewed, under section 83 or section 111, at intervals of not more than three months, and if the suspension is not previously terminated it shall be remitted by the reviewing authority after not more than one year from the date of award.

(6) Where, while a persons sentence or punishment is suspended under this section, the person receives a sentence or punishment for a fresh offence, the suspended sentence or punishment shall be reviewed; and, if the reviewing authority terminates the suspension it shall direct www.kenyalaw.org Rev.

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199 83 whether the two sentences are to run concurrently or consecutively.

(7) Without prejudice to the further suspension of the earlier sentence or punishment, termination under subsection (6) of this section of the suspension of that sentence or punishment shall not be affected by the latter sentence or punishment not being conrmed or by its being quashed.

(8) Where the sentence or punishment of a person in custody is suspended, he shall thereupon be released, and no suspended sentence or punishment shall be executed until the suspension is terminated.

136.

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

conrmed.

137.

No action shall lie in respect of anything done by any person Indemnity for person in pursuance of a sentence of imprisonment for an offence under Part acting under warrant.

V, if the doing thereof would have been lawful but for a defect in any warrant or other instrument made for the purposes of that sentence.

Proof of certain facts 138.

(1) The following provisions shall have effect with respect by documentary to evidence in proceedings under this Act, whether before a court evidence.

martial, a commanding ofcer, the appropriate superior authority, a 12 of 1978, Sch., court or otherwise.

17 of 1979.

Sch.

(2) A document purporting to be a copy of the attestation paper signed by any person and to be certied to be a true copy by a person stated in the certicate properly to have the custody of the attestation paper shall be evidence of the enlistment of the person attested.

(3) The attestation paper purporting to be signed by a person on his enlistment shall be evidence of his having given the answers to questions which he is therein recorded as having given.

(4) A letter, return or other document stating that a person (a) was or was not serving at any particular time or during any particular period in the armed forces or in any particular service of the armed forces or part thereof, or was discharged therefrom at or before any particular time; or (b) held or did not hold at any particular time any particular rank or appointment in any particular service of the armed forces, or had at or before any particular time been attached, posted or transferred to the armed forces or any particular service of www.kenyalaw.org CAP84.

199 Armed Forces [Rev.

2009 the armed forces or part thereof, or at any particular time or during any particular period was or was not serving or held or did not hold any rank or appointment in any particular country or place; or (c) was or was not at any particular time authorized to use or wear any particular decoration, badge, wound stripe or emblem, shall, if purporting to be issued by the President, the Chief of General Staff or the Commander, or by a person authorized in writing by any of them, be evidence of the matters stated in the document; and, in this subsection, the armed forces includes the Kenya Military Forces.

(5) A record made in any service book or other prescribed document, being a record made in pursuance of this Act or otherwise in pursuance of service duty, and purporting to be signed by the commanding ofcer or by any person whose duty it was to make the record, shall be evidence of the facts stated therein; and a document purporting to be a copy of any such record (including the signature thereto) and to be certied to be a true copy by a person stated in the certicate properly to have the custody of the service book or other prescribed document shall be evidence of the record.

(6) A document purporting to be issued by order of the President, the Chief of General Staff or the Commander and to contain instructions or orders given or made by the President, the Chief of General Staff or the Commander shall be evidence of the giving of the instructions or making of the orders and of their contents.

(7) A certicate purporting to be signed by the President or the Chief of General Staff, or by a person authorized in writing by either of them, and stating- (a) that a decoration of a description specied in or annexed to the certicate is a service decoration; or (b) that a badge, wound stripe or emblem of a description specied in or annexed to the certicate is one supplied or authorized by the President or the Chief of General Staff, shall be evidence of the matters stated in the certicate.

(8) A certicate purporting to be signed by a persons commanding ofcer or by an ofcer purporting to be authorized by him to give the certicate, and stating the contents of, or of any part of, standing orders or other routine orders of a continuing nature made for- www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 85 (a) any formation or unit or body of men of the armed forces; or (b) any command or other area, garrison or place; or (c) any aircraft, ship or train, shall in proceedings against that person be evidence of the matters stated in the certicate.

(9) A certicate purporting to be signed by the Defence Council that any unit is a unit of the armed forces shall be conclusive evidence of the facts stated therein.

(10) A certicate purporting to be signed by a persons commanding ofcer stating that such person is or is not a member of any unit of the armed forces shall, in proceedings against such person, be evidence of the facts stated in such certicate.

139.

(1) Where a person subject to this Act has been tried by a Proof of outcome of civil court (whether at the time of the trial he was subject to this Act or civil trial.

not), a certicate of the court- (a) that the person has been tried by the court for a particular offence; (b) as to the result of the trial; (c) as to what judgment or order was given or made by the court; (d) that other specied offences were taken into consideration at the trial, shall for the purposes of this Act be evidence of the matters so certied.

(2) A document purporting to be a certicate under this section and to be signed by a judge or a magistrate shall, unless the contrary is shown, be taken to be such a certicate.

140.

(1) The original proceedings of a court martial purporting Evidence of to be signed by the presiding ofcer of the court shall, on production proceedings of court from proper custody, be admissible in evidence before a court martial martial.

or a civil court.

4 of 1973, Sch.

www.kenyalaw.org CAP86.

199 Armed Forces [Rev.

2009 (2) A document purporting to be a copy of the record of the proceedings of a court martial or of any part thereof and to be certied to be a true copy by a person stated in the document properly to have the custody of the record shall be evidence of the record or of that part thereof.

Trial of offence after 141.

(1) Subject to section 142, where a person subject to this offender ceases to be Act has committed, or is reasonably suspected of having committed, subject to Act.

an offence under Part V, he shall in relation to that offence or suspected offence be treated, for the purposes of the provisions of this Act relating to arrest, keeping in custody, investigation or charges, trial and punishment by court martial (including conrmation, review and reconsideration) and execution of sentences, as being still subject to this Act notwithstanding that he may have ceased to be subject to this Act.

(2) Where a person- (a) is, by virtue of subsection (1), treated as being still subject to this Act and is in service custody; and (b) while in such custody (whether before or after trial) commits, or is reasonably suspected of having committed, an offence which, if he were actually subject to this Act, would be an offence under Part V, he shall, in relation to that offence or suspected offence, be treated, for the purposes of the provisions of this Act mentioned in subsection (1) and the provisions of this Act relating to dealing summarily with charges, as having been subject to this Act when the offence was committed or is suspected of having been committed and as continuing to be subject to this Act thereafter.

(3) Where by virtue of either or both of subsections (1) and (2) a person is treated as being at any time subject to this Act, such treatment shall extend to him- (a) if he holds any rank in the armed forces, as to a person having that rank; (b) in any other case, as to a person having the rank which he held when he was last actually subject to this Act: Provided that, when he has been sentenced for the offence in question and the sentence has been conrmed, the said treatment shall extend to him (in any case) as an ofcer or serviceman, as the case may be.

www.kenyalaw.org Rev.

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199 87 (4) Where apart from this subsection any provision of this Act would under subsection (3) apply to a person, in relation to different offences, as to a person having different ranks, it shall apply to him as to a person having the lower or lowest of those ranks.

142.

(1) A person shall not be tried by court martial or have a Limitation of time for charge against him dealt with summarily for an offence under Part V, trial of offences.

other than an offence under section 25, section 26 or section 31 (1) (a), I4 of l971, Sch.

unless the trial is begun within three years after the commission of the offence, any period during which he was illegally absent or a prisoner of war being disregarded: Provided that- (i) in the case of an offence under section 69, where any writ- ten law requires that proceedings for the corresponding civil offence shall be brought within a particular time, that time limit shall apply to the trial of the offence under that section instead of three years (the same periods being disregarded); and (ii) subject to any time limit applicable by virtue of para- graph (i) of this proviso, a person may be tried by court martial for a civil offence committed outside Kenya notwithstanding that it was committed more than three years before the beginning of the trial, if the Attorney- General consents to the trial.

(2) A person shall not be tried by court martial for an offence under Part V, other than an offence under section 25, section 26 or section 31 (1) (a), unless the trial is begun within three months after he ceases to be actually subject to this Act, or the trial is for a civil offence committed outside Kenya and the Attorney-General consents to the trial.

(3) Where a person who has committed an offence under section 31 (1) (a) (otherwise than on active service) has since the offence served as a member of the armed forces continuously in an exemplary manner for not less than three years, he shall not be tried for that offence.

143.

(1) Nothing in this Act restricts the offences for which a Trials by civil courts.

person may be tried by a civil court, or the jurisdiction of a civil court to try a person subject to this Act for an offence other than an offence under Part V.

(2) Where a person- www.kenyalaw.org CAP88.

199 Armed Forces [Rev.

2009 (a) is tried by a civil court for a civil offence; and (b) has already been sentenced to or awarded punishment for an offence under Part V consisting of an act or omission that constitutes (whether wholly or in part) the civil offence, Cap.

2.

section 63 of the Interpretation and General Provisions Act shall be construed as if the words but shall not be liable to be punished twice for the same offence were omitted therefrom, but the civil court shall, in sentencing the person, have regard to the punishment imposed in respect of the offence under Part V.

Persons not to be 144.

(1) Where a person subject to this Act- tried under this Act for offences already (a) has been tried for an offence by a competent civil court or disposed of.

under Part V, or has had an offence committed by him taken into consideration by any such court or by a court martial in sentencing him; or (b) has been charged with an offence under Part V, and has had the charge dismissed, or has been found guilty on the charge, by his commanding ofcer or the appropriate superior authority; or (c) has had an offence condoned by his commanding ofcer, he shall not be liable in respect of that offence to be tried by court martial or to have the case dealt with summarily.

(2) For the purposes of this section- (a) a person shall not be deemed to have been tried for an offence under Part V if conrmation is withheld of a nding that he is guilty of the offence; (b) a person shall not be deemed to have had an offence committed by him taken into consideration by a court martial in sentencing him if conrmation of the sentence of the court martial is withheld or the sentence is quashed; (c) a case shall be deemed to have been dealt with summarily by the commanding ofcer or appropriate superior authority notwithstanding that the nding of that ofcer or authority has been quashed, or the award of that ofcer or authority quashed or varied, on the review thereof; (d) an offence shall be deemed to have been condoned by the www.kenyalaw.org Rev.

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199 89 commanding ofcer of a person alleged to have committed the offence if, and only if, that ofcer or any ofcer authorized by him in relation to the alleged offence has with knowledge of all relevant circumstances informed him that he will not be charged therewith; (e) a person ordered under section 52 (2) to be imprisoned for an offence under that section shall be deemed to have been tried by court martial for the offence.

(3) Where conrmation of a nding of guilty is withheld, the accused shall not be tried again by court martial for the offence unless the order convening the second court martial is issued not later than twenty-eight days after the promulgation of the decision to withhold conrmation.

(4) Except as provided by the foregoing provisions of this section, proceedings for an offence under Part V (whether before a court martial or before a commanding ofcer or appropriate superior authority) shall not be barred on the ground of condonation.

part XIforfeItures and deduCtIons 145.

(1) No forfeiture of the pay of an ofcer or serviceman Forfeitures and shall be imposed unless it is authorized by this Act, and no deduction deductions: general from such pay shall be made unless it is authorized by this Act or provisions.

prescribed.

(2) Notwithstanding that deduction is ordered from the pay of an ofcer or serviceman, he shall (subject to any forfeiture) be allowed to remain in receipt of pay at a rate not less than that prescribed for the purposes of this section.

(3) Notwithstanding that forfeiture of pay of an ofcer or serviceman for any period has been ordered, he shall be allowed to remain in receipt of pay at a rate not less than that prescribed for the purposes of this section, but any amount which he should have forfeited for that period may be recovered from him by deduction from pay after the end of the period.

(4) Any amount authorized to be deducted from the pay of an ofcer or serviceman may be deducted from any balance (whether or not representing pay) which may be due to him as an ofcer or serviceman, and references in this Act to the making of deductions from pay shall be construed accordingly.

146.

(1) The pay of an ofcer or serviceman shall be forfeited- Forfeiture of pay for www.kenyalaw.org CAP90.

199 Armed Forces [Rev.

2009 absence from duty 12 of l978, Sch., (a) for any day of absence in circumstances which constitute 17 of 1979, Sch.

an offence under section 31 or section 32 or, if the Chief of General Staff or an ofcer authorized by him so directs, for any day of other absence without leave (other than absence by reason of having been captured by the enemy); (b) for any day of imprisonment or active service punishment to which he is sentenced by a court martial or which is awarded by his commanding ofcer or the appropriate superior authority, or imprisonment of any description to which he is liable by virtue of a sentence or order of a civil court; (c) where he is convicted or found guilty of an offence under Part V, for any day (whether before or after he is convicted or found guilty) on which he is in hospital on account of sickness or injury certied by a medical ofcer to have been occasioned by the offence.

(2) The pay of an ofcer or serviceman shall be forfeited for any day of absence by reason of his having been captured by the enemy, if the Defence Council is satised that- (a) he was captured through disobedience of orders or wilful neglect of his duty; or (b) having been captured he failed to take any reasonable steps available to him to rejoin the armed forces; or (c) while in captivity he served with or aided the enemy in the prosecution of hostilities or in the taking of measures calculated to inuence morale, or in any other way whatsoever not authorized by international usage.

(3) Time shall be computed for the purposes of this section (and in particular, as to the counting or disregarding of parts of days) in the prescribed manner.

Deductions for 147.

(1) Where a ne is imposed on an ofcer or service man under penalties.

this Act, the amount of the ne may be deducted from his pay.

(2) Where an ofcer or serviceman is charged with a civil offence (whether within or outside Kenya) and is sentenced or ordered by the court to pay any ne, penalty, damages, compensation or costs, and the whole or part thereof is met by a payment made by or on behalf of any service authority, the amount of the payment may be deducted from his pay.

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199 91 148.

(1) Without prejudice to the provisions of this Act as to the Compensation for imposition of stoppages as a punishment, the following provisions shall loss occasioned have effect where, after the prescribed investigation, it appears to the by wrongful act or negligence.

Commander or an ofcer authorized by him in writing that any loss of, or damage to, public property has been occasioned by any wrongful act or negligence of an ofcer or serviceman (in this section referred to as the person responsible).

(2) The Commander or authorized ofcer may order the person responsible to pay a specied sum as or towards compensation for the loss or damage, and any such sum may be deducted from his pay, so far as it has not otherwise been paid by the person responsible.

(3) No order shall be made under subsection (2) if, in proceedings before a court martial, the commanding ofcer or the appropriate superior authority, the person responsible- (a) has been exonerated by a nding that he was not guilty of the wrongful act or negligence in question; or (b) has been awarded stoppages in respect of the same loss or damage, but otherwise the fact that such proceedings have been brought in respect of the wrongful act or negligence in question shall not prevent the making of an order under subsection (2).

149.

(1) Where damage occurs to any premises in which one or Deduction for more units of the armed forces, or parts of such units, are quartered barrack damage.

or billeted, or any xtures, furniture or effects in or belonging to such premises are damaged or lost, and it appears on investigation in the prescribed manner that the damage or loss was occasioned by the wrongful act or negligence of persons belonging to any of the units or parts of units but that those persons cannot be identied, any person belonging to any of the units or parts of units may be required to contribute in the prescribed manner, towards compensation for the damage or loss, such amount as may be determined to be just, and the amount may be deducted from his pay.

(2) Subsection (1) extends to vehicles, aircraft, ships and trains in which units or parts of units of the armed forces are being transported, and reference to premises, quartering and occupation shall be construed accordingly.

150.

A forfeiture or deduction imposed under any of sections Remission of 146, 147, 148 and 149 or under regulations made under this Act forfeitures and www.kenyalaw.org CAP92.

199 Armed Forces [Rev.

2009 deductions.

may be remitted by the Commander, or by such authority as may be prescribed.

part XIIbIlletIng and requIsItIonIng of VehICles Billeting Billeting orders.

151.

At any time when this section is in operation by virtue of an order under section 168, an ofcer not below the rank of major or corresponding rank commanding a unit of the armed forces may, if he considers it necessary for the purpose of securing accommodation for members of the armed forces or their vehicles, issue a billeting order requiring the police ofcer in charge of police for a specied area to provide billets at specied places in that area for a specied number of members of the armed forces, or for a specied number of vehicles of the armed forces, or for both, and this sub-Part shall apply accordingly.

Premises in which 152.

(1) Billets for persons may be required to be provided- billets may be required.

(a) in any hotel (whether licensed or not) or in any other premises occupied for the purposes of a business consisting of or including the provision of sleeping accommodation for reward; or (b) in any other building to which the public habitually have access, whether on payment or otherwise, or which is wholly or partly provided or maintained out of public funds; or (c) in any dwelling, outhouse, warehouse, barn or stables, but not in any other premises.

(2) Billets for vehicles may be required to be provided in any building or on any land.

Billeting.

153.

(1) Where a billeting order has been produced to the police ofcer in charge of police for the specied area, he shall, on the demand of the ofcer commanding a unit of the armed forces, or on the demand of an ofcer or serviceman authorized in writing by such an ofcer, billet on the occupiers of premises which fall within section 152, and are at one of the places specied in the billeting order, such number of persons, vehicles as may be required by the ofcer or serviceman, not exceeding the number specied in the billeting order.

(2) The police ofcer in charge of police shall exercise his functions under this section in such manner as in his opinion will cause least hardship to persons on whom billeting takes place.

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199 93 (3) The police ofcer in charge of police may, to such extent and subject to such restrictions as he thinks proper, authorize any police ofcer to exercise his functions under this section on his behalf, and the foregoing provisions of this section shall apply accordingly.

154.

(1) Where persons are billeted in pursuance of a billeting Accommodation to order, the occupier on whom they are billeted shall furnish such be provided, and accommodation and meals as the ofcer or serviceman demanding the payment therefor.

billets may require, not exceeding such accommodation and meals as may be prescribed.

(2) Where vehicles are billeted in pursuance of a billeting order, the occupier on whom they are billeted shall furnish standing room for the vehicles.

(3) Where persons or vehicles have been billeted in pursuance of a billeting order, they may continue to be billeted, so long as section 151 is in operation, for such period as is requisite, and the allotment of the billets among the persons or vehicles concerned may be varied from time to time.

(4) The occupier on whom any person or vehicle is billeted shall be entitled to receive the prescribed payment for the billeting: Provided that no payment shall be required in respect of vehicles billeted otherwise than in a building unless the land on which they are billeted- (i) has its surface made up for the passage or parking of vehicles; and (ii) is not land where vehicles are normally allowed to stand free of charge irrespective of the persons by whom they are owned or driven.

(5) Payment for billeting shall be made- (a) at least once in every seven days, where the billeting continues for more than seven days; and (b) before the persons billeted nally leave, or the vehicle are nally removed from, the premises where they are billeted.

155.

In relation to premises of which there is no occupier, this Where no occupier.

sub-Part shall apply as if the person entitled to possession thereof were the occupier.

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199 Armed Forces [Rev.

2009 Appeals against 156.

(1) Any person who- billeting.

(a) is aggrieved by having an undue number of persons billeted upon him in pursuance of a billeting order; or (b) claims that by reason of special circumstances he should be exempted from having persons so billeted on him, either generally or on a particular occasion, may apply to a tribunal consisting of a person or persons appointed by the Minister.

(2) On an application under subsection (1) (a), the tribunal may direct that such number of the persons billeted as may seem just shall be billeted on some other occupier, or may dismiss the application.

(3) On an application under subsection (1) (b), the tribunal may grant such exemption as may seem just, or may dismiss the application.

(4) An application under subsection (1) shall not affect billeting pending the determination of the application.

Compensation for 157.

(1) Where any damage is caused to any premises by the damage.

billeting of persons or vehicles in pursuance of a billeting order, the occupier may recover from the Government compensation of an amount equal to the depreciation of the premises caused by the damage.

(2) Where any person, other than the recipient of compensation under subsection (1), has any interest in the premises, being an interest the value of which is depreciated by the damage, he shall be entitled to recover from the recipient such part of the compensation as may be just.

(3) The Resident Magistrates Court shall have jurisdiction to deal with any claim arising under subsection (1) or subsection (2), irrespective of the amount of the claim.

Application to 158.

(1) In relation to persons employed with the armed forces civilians employed and not entitled under the foregoing provisions of this sub-Part to be with armed forces, billeted, being persons of such descriptions as may be prescribed, and to aircraft, ships those provisions shall apply as they apply in relation to members of and boats.

the armed forces.

(2) The foregoing provisions of this sub-Part apply to and in respect of aircraft, ships and boats as they apply to and in respect of vehicles, and in relation to ships and boats land includes water.

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199 95 Requisitioning of Vehicles 159.

At any time when this section is in operation by virtue of an Requisitioning orders.

order made under section 168, an ofcer not below the rank of major or corresponding rank commanding any part of the armed forces may, if it is necessary in the interests of defence or public safety and the necessity is such as to afford reasonable justication for the causing of any hardship that may result to any person having an interest in or right over the vehicles, issue a requisitioning order authorizing the requisitioning of specied vehicles, or of a specied number of vehicles of a specied description, from among the vehicles in a specied area for meeting the needs of any specied unit of the armed forces or any part thereof.

160.(1) A requisitioning order may be issued to the ofcer Requisitioning of vehicles.

commanding any part of the armed forces, and that ofcer, or any ofcer or serviceman authorized by him in writing, may give directions for the provision- (a) in so far as the requisitioning order authorizes the requisitioning of specied vehicles, of all or any of those vehicles; (b) in so far as the order authorizes the requisitioning of vehicles of a specied description, of the number of vehicles of that description specied in the order or any lesser number of such vehicles.

(2) A direction under subsection (1) given as respects a vehicle shall be a direction given to the person having possession of the vehicle either- (a) to furnish it immediately at the place where it is; or (b) to furnish it at a place within one hundred miles from the premises of that person, at a time specied by the ofcer or serviceman giving the direction: Provided that no direction shall be given under paragraph (b) as respects a vehicle which is neither mechanically propelled nor a trailer normally drawn by a mechanically-propelled vehicle.

(3) If the ofcer to whom the requisitioning order was issued, or any ofcer or serviceman authorized by him in writing- (a) is satised that a person who has been directed to furnish a www.kenyalaw.org CAP96.

199 Armed Forces [Rev.

2009 vehicle under subsections (1) and (2) has refused or failed to furnish it in accordance with that direction; or (b) has reasonable grounds for believing that it is not practicable without undue delay to give such a direction to the person having possession of the vehicle, he may take, or authorize any ofcer or serviceman to take, possession of the vehicle; and, where possession is taken of a vehicle in pursuance of this subsection, this sub-Part shall, with the necessary modications, apply as if the vehicle had been furnished by the person having possession of the vehicle in accordance with a direction to furnish it immediately at the place where it is, and, in particular, payment shall be made therefor as if it had been so furnished.

(4) The police ofcer in charge of police for any area specied in a requisitioning order shall, on being so requested by or on behalf of the ofcer to whom the requisitioning order was issued, give instructions for securing that so far as practicable police ofcers will be available, if required, for accompanying ofcers or servicemen requisitioning vehicles in pursuance of the requisitioning order.

Period for which 161.

Where a vehicle has been furnished in pursuance of a vehicles to be requisitioning order, it may be retained, so long as section 159 is in requisitioned.

operation, for any period for which it is required for any purpose connected with the needs of the armed forces.

Provision of vehicles 162.

A requisitioning order may require any person to furnish a for purchase.

vehicle for the purpose of its being purchased by the Government.

Payment for vehicles requisitioned.

163.

(1) The person by whom a vehicle is furnished in pursuance 14 of 1971, Sch.

of a requisitioning order, otherwise than for the purpose of its being purchased, shall be entitled to be paid- (a) a sum for the use of the vehicle calculated, by reference to the period for which possession of the vehicle is retained, at the rate of payment commonly recognized or generally prevailing in the area at the time at which the vehicle is furnished or, if no such rate is readily ascertainable, at such rate as may be just; and (b) a sum equal to the cost of making good any damage caused to the vehicle, not being damage resulting in its total loss or damage attributable to fair wear and tear, which may have occurred during the period for which possession of the vehicle is retained and which has not been made good during that period by the Government; and www.kenyalaw.org Rev.

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199 97 (c) if, during the said period, a total loss of the vehicle occurs, a sum equal to the value of the vehicle immediately before the occurrence of the damage which caused the loss, and in paragraph (b) fair wear and tear means such fair wear and tear as might have been expected to occur but for the fact that the vehicle was requisitioned.

(2) The person by whom a vehicle is furnished in pursuance of a requisitioning order for the purpose of its being purchased shall be entitled to be paid the value of the vehicle at the time at which it is furnished.

(3) Where a vehicle is furnished in pursuance of a direction under section 160 (2) (b)- (a) for the purposes of paragraphs (a) and (b) of subsection (1) of this section (if that subsection applies), the period for which possession of the vehicle is retained shall be deemed to begin at the time when the direction is given, and for the purposes of subsection (2) of this section (if that subsection applies) the vehicle shall be deemed to have been furnished at that time; (b) in addition to the payments provided for by subsection (1) or subsection (2) of this section, the person by whom the vehicle is furnished shall be entitled to be paid the amount of any expenditure reasonably incurred by him in complying with the direction.

(4) Where a direction to furnish a vehicle is given under section 160 (2) (b), and after the giving of the direction any damage occurs to the vehicle (whether or not resulting in its total loss), if the damage prevents the vehicle being furnished in accordance with the requisitioning order the foregoing provisions of this section shall apply as if the vehicle had been furnished and had been furnished otherwise than for the purpose of its being purchased (notwithstanding that it may have been required to be furnished for the purpose of its being purchased), subject however to the following modications, that is to say- (a) paragraphs (a), (b) and (c) of subsection (1) of this section shall have effect as if for the period therein mentioned there were substituted the period beginning with the giving of the direction and ending immediately after the occurrence of the damage; www.kenyalaw.org CAP98.

199 Armed Forces [Rev.

2009 (b) paragraph (b) of subsection (3) of this section shall have effect as if in complying with there were replaced by by reason of anything done for the purpose of complying with.

(5) Where a person is required by a direction to furnish a vehicle- (a) he shall notify the details of the requisitioning and of any payment thereof to any person whom he knows to have an interest in the vehicle; and (b) any person having such an interest shall be entitled to recover from him such part (if any) of the payment received by him for the vehicle as may be just.

(6) Where, during the period for which possession of a vehicle is retained, a total loss of the vehicle occurs, then- (a) for the purposes of paragraphs (a) and (b) of subsection (1), that period shall be deemed to have come to an end immediately after the occurrence of the loss; and (b) no claim shall be made for the return of the vehicle (if it still exists), or for any payment in respect thereof other than such as is provided for by subsection (1).

(7) The Resident Magistrates Court shall have jurisdiction to deal with any claim arising under this section irrespective of the amount of the claim.

Avoidance of 164.

In deciding which, of alternative vehicles, is to be specied in hardship in a requisitioning order or is to be the subject of a direction under section requisitioning 160, the person issuing the direction given shall act in such manner as vehicles.

will in his opinion cause least hardship.

14 of 1971, Sch.

Issue of search 165.

If a magistrate is satised that a person has failed to afford warrant.

facilities for inspection which he has been required to afford by or under regulations made under section 227 (1) (t), he may issue a search warrant authorizing a named police ofcer to enter any premises within which the facilities are required, accompanied by that person, at any time between six oclock in the morning and nine oclock in the evening, and to inspect anything which may be found therein.

Damage by vehicles 166.

The person using a vehicle for the purpose of its being being delivered for furnished in pursuance of a direction under section 160 (2) (b) shall be requisitioning.

deemed, as respects any claim in respect of injury or damage to any www.kenyalaw.org Rev.

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199 99 other person or property, to be so using the vehicle as a servant of the Cap.

405.

Government, and section 4 of the Insurance (Motor Vehicles Third Party Risks) Act shall not apply to the use of a vehicle for that purpose.

167.

(1) Subject to this section, the foregoing provisions of this Application to sub-Part, except those provisions which relate only to mechanically- aircraft, ships, horses, propelled vehicles and trailers normally drawn thereby, apply to and in etc., food, forage and respect of aircraft, ships, boats, horses, mules, donkeys, camels, food, stores.

forage, fuel and stores as they apply to and in respect of vehicles.

(2) Where stores are required for, and can be conveyed with, a vehicle with respect to which a direction is given under section 160 (2) (b), such a direction may be given as well in relation to the stores as in relation to the vehicle, and the foregoing provisions of this sub-Part shall apply accordingly: Provided that section 163 (4) shall not apply, but, if after the direction is given the furnishing of the stores is prevented by damage to them or to the vehicle, such payment (if any) shall be made in respect of the stores as may be just in all the circumstances.

(3) In this section, stores means any chattel (other than a vehicle, aircraft, ship, boat, horse, mule, donkey or camel, or food, forage or fuel) which is required for, or for use in connexion with- (a) persons, vehicles, aircraft, ships or boats billeted or to be billeted in pursuance of a billeting order or otherwise temporarily accommodated or to be temporarily accommodated; or (b) vehicles, aircraft, ships, boats, horses, mules, donkeys or camels furnished or to be furnished in pursuance of a requisitioning order.

Supplemental 168.

Whenever it appears to the President that the public interest Bringing into so requires, he may, by order in the Gazette, direct that either or both of operation sections 151 and 159.

sections 151 and 159 shall come into operation for a specied period, 12 of 1978, Sch.

either generally or in respect of a specied area, and that section or those sections, as the case may be, shall thereupon come into operation and remain in operation for the specied period.

part XIIICommIssIonIng of offICers and enlIstment of serVICemen 169.

(1) The Defence Council may, in the name of the President, Grant of www.kenyalaw.org CAP100.

199 Armed Forces [Rev.

2009 commissions.

grant a commission in the armed forces to a citizen of Kenya who has been recommended for a commission in that service by a commissions board established by regulations made under this Act.

(2) Every person who is granted a commission shall, on being granted the commission, take an oath of allegiance in the form in the Second Schedule.

Term of commission.

170.

(1) A commission may be either- 19 of 1982, Sch.

(a) a regular commission; or (b) a short service commission, that is to say a commission for a term of years not exceeding ve in the rst instance.

(2) An ofcer holding a regular commission who retires from the armed forces with a pension or gratuity shall thereupon be transferred to the reserve, and shall serve in it until the age of- (a) sixty-ve years in the case of an ofcer retiring with the rank of major-general or corresponding rank or above; or (b) fty-ve years in the case of an ofcer retiring with the rank of colonel or corresponding rank or above; or (c) the age of fty years in the case of a person retiring with the rank of lieutenant-colonel or corresponding rank or below.

(3) An ofcer holding a short service commission who completes the term of his commission with a pension or gratuity shall on such completion be transferred to the regular reserve and shall remain in it for a period of three years.

Termination of 171.

(1) The Commander may terminate the commission of commission.

any ofcer during the rst eighteen months of the ofcers actual commissioned service.

(2) The Defence Council may terminate the commission of any ofcer of the rank of major or corresponding rank or below.

(3) The President may terminate the commission of any ofcer above the rank of major or corresponding rank or above.

172.

Any person authorized in that behalf by the Defence Recruiting ofcers.

Council may recruit servicemen into the armed forces in the prescribed manner.

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199 101 173.

(1) A person offering to enlist in the armed forces shall Enlistment.

be given a notice in the prescribed form setting out the questions to be answered on attestation and stating the general conditions of the enlistment, and a recruiting ofcer shall not recruit any person unless that person satises him that he has been given such a notice, understands it and wishes to enlist.

(2) A recruiting ofcer shall not recruit a person under the apparent age of eighteen years unless written consent to the enlistment has been given by his parents or guardian or, where his parents or guardian are dead or unknown, by the District Commissioner of the district in which the person resides.

(3) A recruiting ofcer shall not recruit a person who is not a citizen of Kenya.

(4) A person on attestation shall take an oath of allegiance in the form in the Second Schedule.

174.

(1) The term for which a person who has apparently attained Term of enlistment.

the age of eighteen years may enlist shall be one of the prescribed periods of colour service (not exceeding twelve years) beginning on the date of his attestation.

(2) The period for which a person who has not apparently attained the age of eighteen years may enlist shall be a period of colour service ending the prescribed number of years after he attains the age of eighteen years (the prescribed number not being greater than twelve).

(3) In reckoning the service of a serviceman, there shall be excluded therefrom- (a) all periods during which he has been absent from his duty by reason of- (i) imprisonment; or (ii) desertion; or (iii) absence without leave exceeding seven days; and (b) any period ordered by a court martial to be forfeited.

(4) A serviceman who is of good character, may, within two years before completing his period of colour service, with the approval of the competent service authority, re-engage for such further period of colour service as may be prescribed: www.kenyalaw.org CAP102.

199 Armed Forces [Rev.

2009 Provided that, except as provided by subsection (5), the further period of colour service, together with the previous period of colour service, shall not exceed a total continuous period of twenty-one years colour service from the date of his original attestation or the date upon which he apparently attained the age of eighteen years, whichever is the later.

(5) A serviceman who has completed a period of twenty-one years colour service may, with the approval of the competent service authority, continue to serve from year to year in all respects as if his period of colour service were still unexpired: Provided that he may at any time give to his commanding ofcer three months notice that he wishes to be discharged, and on the expiration of that notice he may claim to be discharged.

(6) A serviceman who completes his period of colour service (and any period by which his service is prolonged under subsection (5) of this section or under section 175) or is otherwise discharged (other than under section 176, section 177 or section 178) shall thereupon be transferred to the reserve, and shall serve in it for a period of three years (or for any longer period which may be provided for in his terms of enlistment or re-engagement), but not in any case after he has completed twenty-one years colour service or has reached the age of forty-ve years.

Prolongation of 175.

Any ofcer who is due to retire or who completes the service.

term of his commission, and any serviceman whose period of colour 12 of 1978, Sch.

service expires, during a state of war, insurrection, hostilities or public emergency or at a time when he is on active service may be retained in the armed forces and his service prolonged for such further period as the Defence Council may determine.

Discharge.

176.

A serviceman may be discharged by the competent service authority at any time during his period of colour service - (a) if, within two years after the date of his attestation, his commanding ofcer considers that he is unlikely to be an efcient member of the armed forces; or (b) for activities or behaviour likely to be prejudicial to the preservation of public security; or (c) if he is convicted of a civil offence; or (d) if he is pronounced by a medical ofcer to be mentally or physically unt for further service; or www.kenyalaw.org Rev.

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199 103 (e) on reduction of establishment; or (f) at his own request on compassionate grounds; or (g) if for any reason his services are no longer required; or (h) if he is granted a commission; or (i) if he is sentenced by court martial to be dismissed from the armed forces.

177.

A serviceman may claim to be discharged at anytime within Right to purchase three months after the date of his attestation on payment of the sum of discharge.

two hundred shillings: Provided that- (i) subsections (2) and (5) of section 180 shall not apply to a serviceman discharged under this section; (ii) no serviceman may claim to be discharged during a state of war, insurrection, hostilities or public emergency or at a time when he is on active service.

178.

A warrant ofcer who is reduced to the rank of private or Right to discharge on corresponding rank may thereupon claim to be discharged, except during reduction to ranks.

a state of war, insurrection, hostilities or public emergency or at a time when he is on active service.

179.

(1) Notwithstanding anything in this Part, a serviceman is Postponement of not entitled to be discharged or transferred to the reserve at a time when discharge or transfer he has become liable, as a person subject to this Act, to be proceeded pending proceedings against for an offence under Part V.

for offences, etc.

(2) Notwithstanding anything in this Part, a serviceman who is serving a sentence of imprisonment in respect of an offence under Part V is not entitled to be discharged or transferred to the reserve during the currency of the sentence.

180.

(1) Subject to this Part, every serviceman becoming entitled Mode of discharge.

or liable to be discharged shall be discharged with all convenient speed, but until discharged he shall remain subject to this Act.

(2) When a serviceman who is entitled or liable to be discharged is serving outside Kenya, he shall be returned to Kenya free of cost with all convenient speed and shall be discharged on his arrival there www.kenyalaw.org CAP104.

199 Armed Forces [Rev.

2009 or, if he consents to his discharge being delayed, within six months after his arrival.

(3) A serviceman shall not be discharged unless his discharge has been authorized by order of the competent service authority.

(4) Every serviceman shall be given on his discharge a certicate of discharge containing the prescribed particulars.

(5) A serviceman who is discharged in Kenya shall be entitled to be conveyed free of cost from the place where he is discharged to the place stated in his attestation paper to be the place where he was attested, or to any place in Kenya at which he intends to reside and to which he can be conveyed at no greater cost.

Validity of attestation 181.

(1) Where a person has made the prescribed declaration upon and enlistment.

his attestation and has thereafter received pay as a serviceman- 12 of 1978, s.7.

(a) the validity of his enlistment shall not be called in question on the grounds of any error or omission in his attestation paper; (b) if, within a period of three months from the date on which he made the declaration, he claims that his enlistment is invalid by reason of non-compliance with the requirements of this Act or any other matter whatsoever (not being an error or omission in his attestation paper), the claim shall be submitted to the Defence Council as soon as may be, and if the claim is well founded the Defence Council shall cause him to be discharged with all convenient speed; but if no such claim is made within that period, or if the Defence Council is of opinion that the claim is unfounded, the person concerned shall be deemed to have been validly enlisted notwithstanding any such non-compliance or other matter and he shall be a serviceman until his discharge.

(2) Where a person has received pay as a serviceman without having previously made the prescribed declaration upon his attestation- (a) he shall be a serviceman until discharged; (b) he may claim to be discharged at any time within three months after the rst day in respect of which he has received pay.

(3) Nothing in this section shall prejudice the determination of any question as to the term for which a person enlisted or prevent the www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 105 discharge of a person who has not claimed his discharge.

part XIVthe reserVes 182.

(1) Every ofcer and every serviceman who is liable to be Transfer to reserve.

transferred to the regular reserve shall until transferred remain subject to this Act.

(2) When an ofcer or a serviceman who falls to be transferred to the regular reserve is serving outside Kenya, he shall be returned to Kenya free of cost with all convenient speed and shall be transferred to the regular reserve on his arrival there or, if he consents to his transfer being delayed, within six months after his arrival.

(3) A serviceman who is transferred to the regular reserve in Kenya shall be entitled to be conveyed free of cost from the place where he is transferred to the place stated in his attestation paper to be the place where he was attested, or to any place in Kenya at which he intends to reside and to which he can be conveyed at no greater cost.

183.

(1) The volunteer reserve, if the Defence Council decides Volunteer reserve.

in pursuance of section 4 that there shall be one, shall consist of such ofcers and servicemen as the Defence Council determines.

(2) Commissions in the volunteer reserve shall be granted and may be terminated in the same manner as is provided in relation to the regular force by sections 169 and 171.

(3) Servicemen may be enlisted into the volunteer reserve, and when enlisted shall serve in the volunteer reserve, in the same manner as is provided in relation to the regular forces by sections 172, 173, 175, 176, 177, 178,179, 180 and 181, and those sections shall apply mutatis mutandis in relation to enlistment and servicemen enlisted into the volunteer reserve as they apply to enlistment and servicemen enlisted into the regular forces.

184.

(1) Every reservist is liable to be called out for training for Calling out reservists a period not exceeding, or for periods not exceeding in the aggregate, for annual training.

twenty-eight days in any one year.

(2) A reservist, during any training for which he is called out, may be posted or attached to and trained with any unit of the armed forces.

185.

(1) The President may, by notice in the Gazette, at any time Calling out reservists when he considers it necessary, call out reservists (whether by class or temporarily.

by name) temporarily- www.kenyalaw.org CAP106.

199 Armed Forces [Rev.

2009 (a) to strengthen the regular force in time of war; or (b) to support the civil power in the maintenance of order in the event of disturbances, for a period not exceeding twenty- eight days.

(2) The President in such notice may give or authorize the Minister to give such directions as may seem necessary or proper for facilitating the calling out of the reservists.

(3) Every such notice and all such directions shall be obeyed, and every reservist called out by the notice shall attend at the place and time appointed by the notice or the directions, and after that time shall be deemed to be called out on temporary service.

Calling out reservists 186.

(1) At any time when Part III of the Preservation of Public on permanent Security Act is in operation (whether generally or in a part of Kenya), service.

the President may, by proclamation, call out reservists (whether by class Cap.

57.

or by name) on permanent service, either generally or (as the case may be) in that part of Kenya.

(2) The President in such proclamation may give or authorize the Minister to give such directions as may seem necessary or proper for facilitating the calling out of the reservists.

(3) Every reservist who is an ofcer called out on permanent service is liable to serve until his services are no longer required, but in any case not beyond the age limits specied in section 170 (2), irrespective of whether he held a regular commission or a short service commission, together with such further period as the Minister may determine.

(4) Every reservist who is a serviceman called out on permanent service is liable to serve as a serviceman until his services are no longer required, but in any case not longer than the remainder of his period of service in the reserve together with such further period as the Minister may determine.

Punishment for non- 187.

(1) Any reservist who, without leave lawfully granted or attendance.

other reasonable excuse, fails to report when called out under this Part shall- (a) if called out under section 184 or section 185, be guilty of absence without leave within the meaning of section 32; www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 107 (b) if called out under section 186, be guilty, according to the circumstances, of desertion within the meaning of section 31, or of absence without leave within the meaning of section 32.

(2) Section 70 applies to reservists who commit an offence under this section as it applies to persons otherwise subject to this Act.

188.

Where a reservist fails to report when called out and his Record of illegal absence continues for not less than twenty-one days, an entry of such absence.

absence shall be made by an ofcer in the service books, and such entry shall be prima facie evidence of the fact of such absence.

189.

A reservist who has completed his period of service in the Release from reserve reserve shall be released from the reserve, unless- on completion of service.

(a) he is on active service; or (b) the reserve has been called out on permanent service; or (c) at the expiration of the period he stands charged as a person subject to this Act with the commission of, or is a serviceman undergoing punishment for, an offence under this Act; and, if he stands so charged or is such a serviceman, his service shall be prolonged and his release deferred until he has been tried and undergone any punishment awarded in respect of the offence with which he is charged, or until his punishment is completed, as the case may be.

190.

A reservist may be released from the reserve by the competent Release from reserve service authority at any time if- during service.

(a) he is pronounced by a medical ofcer to be mentally or physically unt for further service; or (b) his services for any reason are no longer required.

part XVthe armed forCes Constabulary 190A.

In this Part, public establishment means- Interpretation of Part.

12 of 1978, s.8.

(a) any establishment of the armed forces; and (b) any building or other premises belonging to, or in the occupation of, the Government which the Minister, after consultation with the Minister for the time being responsible for matters relating to internal security, may, by notice in www.kenyalaw.org CAP108.

199 Armed Forces [Rev.

2009 the Gazette, declare to be a public establishment for the purposes of this Part.

Armed Forces 191.

There is hereby established a force, to be known as the Constabulary.

Armed Forces Constabulary, which shall be part of the armed forces, and which shall consist of a Commandant and such other ranks as the Minister determines.

Commandant.

192.

The Commandant shall, subject to the directions of the Minister, be responsible for the general control, discipline and administration of the constabulary.

Declaration by 193.

Every member of the constabulary shall on joining the members.

constabulary make before an ofcer of the armed forces or before the Commandant an oath of allegiance in the form in the Second Schedule.

Functions of 194.

The functions of the constabulary shall be to maintain the constabulary.

security, protection (including protection against re and other damage) 12 of 1978, Sch.

and orderly regulation of all public establishments and of public property in the charge of the armed forces.

Powers and 195.

In the exercise of their functions under this Act, all members privileges of of the constabulary have the like powers and privileges as are by law members.

12 of 1978, Sch.

accorded to police ofcers, including the power to carry arms: Provided that such powers and privileges do not apply in relation to a member of the constabulary when he is beyond the limits of a public establishment, except when that member- (i) is performing his functions in respect of public property under the control of the armed forces; or (ii) is in control or fresh pursuit of a person who is reasonably suspected of having committed an offence- (a) in or on such establishment; or (b) in relation to public property under the control of the armed forces; or (c) in relation to a member of the constabulary, or to an ofcer or serviceman, or to a person employed in the service of a unit of the armed forces.

Powers of arrest.

196.

(1) Where any person is found committing, or is reasonably suspected of committing or having committed, an offence of the kind www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 109 described in paragraph (ii) of the proviso to section 195, a member of the constabulary may demand his name and address, and if he refuses or fails to give his name and address to the satisfaction of such member, or if such member has reasonable grounds for believing that unless arrested the person will escape or cause an unreasonable amount of delay, trouble or expense in being brought before a court, such member may without warrant arrest him forthwith.

(2) A person making an arrest under subsection (1) shall- (a) without unnecessary delay make over the arrested person to a police ofcer, who shall take him to the nearest police station without unnecessary delay; or (b) in the absence of a police ofcer, take the arrested person to the nearest police station.

(3) Where any person has been arrested under subsection (1) of this section, the ofcer in charge of the police station to which he has been brought shall deal with the case in accordance with section 36 of Cap.

75.

the Criminal Procedure Code.

197.

A member of the constabulary may use arms against any Use of arms.

person who by force prevents or attempts to prevent the lawful arrest 12 of 1978, Sch.

of himself or of any other person in any public establishment: Provided that- (i) resort shall not be had to the use of arms under this sec- tion unless the member has reasonable ground to believe that he or any other person is in danger of grievous bodily harm, and that he cannot otherwise effect such arrest; and (ii) the use of arms under this section shall be, as far as pos- sible, to disable and not to kill.

part XVICIVIl offenCes ConCernIng the armed forCes and the Constabulary 198.

Any person who- Obstructing constabulary, etc.

(a) assaults, resists or wilfully obstructs a member of the constabulary in the performance of his duties under this Act, or any person acting in the aid of such a member; or (b) induces or does any act calculated to induce a member of www.kenyalaw.org CAP110.

199 Armed Forces [Rev.

2009 the constabulary to neglect or to act contrary to his duty as such member; or (c) induces or does any act calculated to induce a member of the constabulary to commit any breach of discipline or any act whereby any lawful order given to a member of the constabulary or any written law with which it is the duty of a member of the constabulary to comply may be evaded or infringed, shall be guilty of an offence and liable to imprisonment for a term not exceeding three years, and may be arrested without a warrant by any member of the constabulary or any police ofcer.

Procuring and 199.

Any person who- assisting desertion.

(a) procures or persuades a person to desert or to absent himself without leave from the armed forces or the constabulary; or (b) knowing that a person is about to desert or absent himself without leave from the armed forces or the constabulary, assists him in so doing; or (c) knowing a person to be a deserter or absentee without leave from the armed forces or from the constabulary, conceals him or assists him in concealing himself or assists in his rescue from custody, shall be guilty of an offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding one year.

Pretending to be a 200.

Any person who falsely represents himself to any service deserter.

authority or civil authority to be a deserter or absentee without leave from the armed forces or from the constabulary shall be guilty of an offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding three months.

Obstructing person in 201.

Any person who wilfully obstructs or otherwise interferes execution of duty.

with an ofcer or serviceman acting in the execution of his duty shall be guilty of an offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding three months.

Aiding malingering.

202.

Any person who- (a) produces in an ofcer or serviceman any sickness or disability; or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 111 (b) supplies to or for him any drug or preparation calculated or likely to render him, or lead to the belief that he is, permanently or temporarily unt for service, with a view to enabling him to avoid service in the armed forces, whether permanently or temporarily, shall be guilty of an offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding one year.

203.

(1) Any person who acquires any service stores, or solicits Unlawful purchase, or procures any person to dispose of any service stores, or acts for etc., of military any person in the disposing of any service stores, shall be guilty of an stores.

offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding two years, unless he proves either- (a) that he did not know, and could not reasonably be expected to know, that the chattels in question were service stores; or (b) that the chattels in question had (by the transaction with which he is charged or by some earlier transaction) been disposed of by order or with the consent of the Government or of some other person or authority who had, or whom he had reasonable cause to believe to have, power to give the order or consent; or (c) that the chattels in question had become the property of an ofcer who had retired or ceased to be an ofcer, or of a serviceman who had been discharged, or of the personal representatives of an ofcer or serviceman who had died.

(2) A police ofcer may arrest without warrant any person who is reasonably suspected of having committed an offence under this section, and may seize any property which is reasonably suspected of having been the subject of the offence.

(3) Any person having authority to issue a warrant for the arrest of a person charged with a crime may, if satised by evidence on oath that a person within his jurisdiction has, or is reasonably suspected of having, in his possession any property which has been the subject of an offence under this section, issue a warrant to search for such property as in the case of stolen goods; and any property reasonably suspected of having been the subject of such an offence which is found on such a search shall be seized by the ofcer charged with the execution of the warrant, and that ofcer shall bring the person in whose possession or keeping the property is found before a court.

www.kenyalaw.org CAP112.

199 Armed Forces [Rev.

2009 (4) In this section- acquire means buy, take in exchange, take in pawn or otherwise receive (whether apart from this section the receiving is lawful or not); dispose of means sell, offer or expose for sale, give in exchange, pledge or otherwise hand over (whether apart from this section the handing over is lawful or not); service stores means any chattels or goods of any description belonging to the Government, which have been issued for use for the purpose of the armed forces, or are held in store for the purpose of being so issued when required, and any chattels or goods which had belonged, and had been issued or held, as aforesaid at some past time.

(5) For the purposes of subsection (3), property shall be deemed to be in the possession of a person if he has it under his control, and whether he has it for his own use or benet or for the use or benet of another.

Refusal to receive 204.

(1) Any person who- persons billeted, etc.

(a) refuses to receive any person billeted upon him in pursuance of a billeting order, or without reasonable excuse fails to furnish him with the accommodation properly required for him; or (b) gives or agrees to give to any person billeted upon him in pursuance of a billeting order any money or reward in place of receiving any person or vehicle or of furnishing accommodation properly required for him; or (c) obstructs the billeting in his building or on any land or water under his control of any vehicle, aircraft, ship or boat, shall be guilty of an offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding three months.

Enforcement of 205.

(1) Any person who- requisitioning.

(a) fails to furnish any vehicle or specied thing which he is directed to furnish in pursuance of a requisitioning order, or fails to furnish any such vehicle or specied thing at the time and place at which he is directed to furnish it; or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 113 (b) fails to comply with any regulations made under section 227 (1) (t); or (c) obstructs any ofcer or other person in the exercise of his functions under Part XII in relation to the inspection or requisitioning of vehicles or specied things, shall be guilty of an offence and liable, on conviction by a civil court, to imprisonment for a term not exceeding three months.

(2) In subsection (1), specied thing means one of the things, animals and commodities specied in section 167 (1).

206.

(1) Where any ofcial document is issued in connexion Illegal dealings in with any pay, pension, allowance, gratuity or other money payable to documents relating any person in respect of his or any other persons service in the armed to pay, pensions, forces, any person who receives, detains or has in his possession that mobilization, etc.

document- (a) as a pledge or a security for a debt; or (b) with a view to obtaining payment, from the person entitled to the pay, pension, allowance, gratuity or other money, of a debt due either to himself or to any other person, shall be guilty of an offence.

(2) Any person who has in his possession without lawful authority or reasonable excuse (the proof whereof shall lie on him) any such document as aforesaid, or any ofcial document issued in connexion with the mobilization or demobilization of the armed forces or any part or member thereof, shall be guilty of an offence.

(3) Any person who is guilty of an offence under this section shall be liable, on conviction by a civil court, to imprisonment for a term not exceeding six months.

(4) For the purposes of this section, a document shall be deemed to be in the possession of a person if he has it under his control and whether he has it for his own use or benet or for the use or benet of another.

207.

(1) Any person who- Unauthorized use of and dealing in (a) without authority, uses or wears any service decoration, or decorations, etc.

any badge, insignia of rank, wound stripe or emblem supplied or authorized by the President or the Defence Council; or www.kenyalaw.org CAP114.

199 Armed Forces [Rev.

2009 (b) uses or wears any decoration, badge, insignia of rank, wound stripe or emblem so nearly resembling any service decoration or any badge, insignia of rank, wound stripe or emblem supplied or authorized as aforesaid, as to be calculated to deceive; or (c) falsely represents himself to be a person who is or has been entitled to use or wear any service decoration or any badge, insignia of rank, wound stripe or emblem supplied or authorized as aforesaid, shall be guilty of an offence: Provided that this subsection shall not prohibit the wearing of brooches or ornaments representing service badges.

(2) Any person who purchases or takes in pawn any service decoration awarded to any member of the armed forces, or solicits or procures any person to sell or pledge any such decoration, or acts for any person in the sale or pledging thereof, shall be guilty of an offence, unless he proves that at the time of the alleged offence the person to whom the decoration was awarded was dead or had ceased to be a member of the armed forces.

(3) Any person who is guilty of an offence under this section shall be liable, on conviction by a civil court, to imprisonment for a term not exceeding three months.

part XVIIVIsItIng forCes Interpretation of Part.

208.

In this Part- appropriate authority, in relation to a country, means such authority as is appointed by the government of that country for the purposes of this Part; civilian component means the civilian personnel accompanying a visiting force, who are employed in the service of the visiting force or are employed by an authorized service organization accompanying a visiting force, and who are not stateless persons or citizens of Kenya or persons ordinarily resident in Kenya; dependant means a person who is not ordinarily resident in Kenya and who- (a) is the wife or husband of a member of a visiting force; or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 115 (b) is wholly or mainly maintained or employed by such a member; or (c) is in the custody, charge or care, or is part of the family, of such a member; designated country means a country designated under section 209; forces, in relation to a country, means the naval, military or air forces of that country; member, in relation to a visiting force, includes a member of the civilian component of that visiting force, and a dependant; sentence includes any punishment awarded or imposed by a service court; service court, in relation to a country, means a court established under the service law of that country, or any authority empowered by that service law to investigate or try charges, or any authority empowered by that service law to review the proceedings of such a court or authority; service law, in relation to a country, means the laws governing the forces of that country; visiting force means any body of the forces of a designated country which for the time being is lawfully present in Kenya in time of peace under a treaty, agreement or arrangement to which the Government is a party.

209.

(1) Where it appears to the President that it is expedient Power to apply Part.

that this Part should have effect in relation to any particular country, he may, by order, designate that country as a country to which this Part applies.

(2) An order under subsection (1) may provide that it shall have effect subject to limitations or conditions, or that this Part shall apply with modications or adaptations.

210.

(1) Subject to sections 71 and 72 of the Constitution, the Powers of service service courts and service authorities of a designated country may, within courts of visiting Kenya or on board any ship or aircraft belonging to the Government, forces.

exercise over members of a visiting force which belongs to that country all such powers as are exercisable by them according to the law of the country.

www.kenyalaw.org CAP116.

199 Armed Forces [Rev.

2009 (2) Where a sentence has been passed, whether within or outside Kenya, by a service court of a designated country upon a member of a visiting force then, for the purposes of proceedings in a court of Kenya- (a) the service court shall be deemed to have been properly constituted; and (b) the sentence shall be deemed to have been within the jurisdiction of the service court and to have been in accordance with the law of the designated country; and (c) the sentence, if executed according to the tenor of the sentence, shall be deemed to be lawfully executed.

(3) Any person who is detained in custody in pursuance of a sentence as respects which subsection (2) has effect is in lawful custody.

(4) Notwithstanding the foregoing provisions of this section, a sentence of death passed by a service court of a designated country shall not be carried out in Kenya unless under the law of Kenya a sentence of death could have been passed in a similar case.

Restrictions on 211.

(1) A member of a visiting force shall not be prosecuted for prosecutions for civil a civil offence unless- offences.

(a) the Attorney-General certies that- (i) the offence is one in relation to which the courts of Kenya have the exclusive or the primary right to exercise jurisdiction under a treaty, agreement or arrangement to which the Government is a party; and (ii) the Minister has not waived that right in respect of that offence; or (b) the Attorney-General certies that, although the offence is one in respect of which a service court of the country to which the visiting force belongs has the primary right to exercise jurisdiction under a treaty, agreement or arrangement to which the Government is a party, that right has been waived in respect of the offence by the service authorities of the visiting force or by the government of that country: Provided that a person may be arrested, and a warrant for his www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 117 arrest may be issued and executed, and he may be remanded in custody or on bail, notwithstanding that a certicate has not been given under this subsection.

(2) Where a member of a visiting force has been tried by a service court of the country to which the force belongs under the powers conferred by section 210 (1)- (a) he shall not be tried for the same offence by a court of Kenya; and (b) if he is subsequently convicted by a court of Kenya and it appears to that court that the conviction is wholly or partly in respect of acts or omissions in respect of which he was convicted by the service court, the court of Kenya in sentencing him shall have regard to any sentence passed by the service court.

212.

(1) For the purposes of this Part, a certicate issued by or on Proof of certain facts.

behalf of the appropriate authority of a designated country- (a) that a body of the forces of that country is or was at a particular time present in Kenya shall, in proceedings in a court of Kenya, be conclusive evidence of the fact certied; (b) that a named person at a particular time either was or was not a member (whether as a member or as a member of the civilian component or as a dependant) of a visiting force of that country shall, in proceedings in a court of Kenya, be sufcient evidence of the fact, unless the contrary is proved; (c) that a named person- (i) on a particular date was sentenced by a service court of that country to a particular punishment; or (ii) is, or was at a particular time, detained in custody in pursuance of a sentence passed upon him by a service court of that country; or (iii) at a particular time and place was tried by a service court of that country for a particular offence, shall, in proceedings in a court of Kenya, be conclusive evidence of the fact certied.

www.kenyalaw.org CAP118.

199 Armed Forces [Rev.

2009 (2) Where- (a) in a certicate issued for the purposes of this section reference is made to a person by name; and (b) in proceedings in a court of Kenya reference is made to a person by that name (whether as a party to the proceedings or otherwise), the reference in the certicate and the reference in the proceedings shall be presumed to be references to the same person, unless the contrary is proved.

(3) A document purporting to be a certicate issued for the purposes of this section, and to be signed by or on behalf of a particular authority, shall be presumed to be a certicate issued by or on behalf of that authority, unless the contrary is proved.

(4) Where a document purporting to be a certicate issued for the purpose of this section- (a) is one which under this section may be issued by or on behalf of the appropriate authority of a designated country; and (b) purports to be signed by or on behalf of an authority of that country, that authority shall, in any proceeding in a court of Kenya, be presumed to be the appropriate authority of that country for the purposes of this section, unless the contrary is proved.

(5) Where in proceedings in a court of Kenya it is admitted or proved (whether by means of a certicate or otherwise) that a body of the forces of a designated country is or was at a particular time present in Kenya, it shall be presumed in those proceedings that the body is or was at that time lawfully present in Kenya, unless the contrary is proved.

part XVIIImIsCellaneous Precedence and 213.

(1) Ofcers, warrant ofcers, non-commissioned ofcers command of and servicemen below the rank of non-commissioned ofcer shall stand members of armed in relation to each other in the order of precedence in which they are forces.

named in this subsection.

(2) Ofcers, warrant ofcers and non-commissioned ofcers of the same rank shall, as between themselves, stand in order of www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 119 precedence and command according to any order which may be made by the President, and where no such order is in force then according to their seniority reckoned by the date of their respective appointments to their current rank.

214.

Duties or tolls for embarking from or disembarking on any Exemptions from pier, wharf, quay or landing place, or for passing over any road, ferry tolls, etc.

or bridge, shall not be payable in respect of- (a) members of the armed forces or of any co-operating forces or of the constabulary, when on duty; (b) vehicles of the armed forces or of any co-operating forces; (c) horses or other animals of the armed forces.

215.

No judgment, decree or order given or made against a Exemption from member of the armed forces by any court shall be enforced by the execution against levying of execution on any property in the possession of the person public property.

against whom it is given or made which is public property used by him for service purposes.

216.

(1) Save as expressly provided by this Act, no pay, service No assignment of award, grant, pension or allowance payable to any person in respect of or charge on service his or any other persons service in the armed forces shall be capable of pay, etc.

being assigned or charged, and a purported assignment or charge of the same, or an agreement to assign or charge the same, shall be void.

(2) Save as expressly provided by this Act, no order shall be made by any court if its effect would be to prevent any person from receiving money which he is precluded by this section from assigning and to direct payment thereof to another person.

(3) This section does not prevent- (a) a court from ordering that a sum of money due from a member of the armed forces be recovered from money which he is precluded by this section from assigning; or (b) a sum being paid, out of money which a person is precluded by this section from assigning, to that persons trustee in bankruptcy for distribution among creditors under the law relating to bankruptcy.

217.

(1) A person subject to this Act may make a statutory Certain ofcers declaration under the Oaths and Statutory Declarations Act outside may take statutory www.kenyalaw.org CAP120.

199 Armed Forces [Rev.

2009 declarations.

Kenya before any ofcer of the rank of major or corresponding rank or Cap.

15.

above (in this section referred to as an authorized ofcer).

(2) A statutory declaration purporting to have been made before an authorized ofcer, and containing in the attestation a statement of the date on which and the place at which the declaration was made and of the full name and rank of that ofcer, shall be admitted in evidence without proof that the signature is the signature of that ofcer.

Residence and next 218.

(1) Every ofcer on being commissioned and every of kin to be recorded.

serviceman on enlistment shall give particulars of the place and district in which he ordinarily resides and the name and address of his next of kin, and those particulars shall be recorded at the headquarters of his unit.

(2) The record shall be veried periodically, and it shall be the duty of the ofcer or serviceman to report any alteration which may occur in the recorded particulars.

Execution of wills.

219.

A will made by a member of the armed forces who has at law the capacity to make a will shall be validly executed if it is in writing and is signed by him in the presence of an ofcer, who subscribes his name as witness in the members presence, or if it is executed with the formalities prescribed by any other written law for the execution of a will.

Administration of 220.

(1) Where a member of the armed forces dies leaving a valid estates.

will, the paymaster or any ofcer having in his charge or control any pay, accumulation of pay, gratuity or other money or any other movable property belonging to the member shall pay or deliver it to the executor of the member.

(2) Where a member of the armed forces dies without leaving a valid will, the paymaster or any ofcer having in his charge or control any pay, accumulation of pay, gratuity or other money or any movable property belonging to the member shall pay or deliver it to the Public Trustee together with a copy of the record specied in section 218 of this Cap.

168.

Act, and the Public Trustee shall administer and distribute the money or property in accordance with the Public Trustee Act, or may grant a certicate as provided in section 4 of that Act.

Uniforms and 221.

Uniforms and decorations shall not be treated as part of the decorations not part estate of a deceased member of the armed forces in relation to claims or of estate.

creditors or for any of the purposes of administration under this Act or otherwise, and they shall be delivered to the Commander and thereafter disposed of in the prescribed manner.

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2009] Armed Forces CAP.

199 121 222.

In every case of desertion, the movable property of the Property of deserter.

deserter in the charge or control of the paymaster or any other ofcer (including any money belonging or due to the deserter) shall be disposed of in the prescribed manner.

223.

(1) The Commander, or any ofcer authorized by regulations Board of inquiry.

made under this Act, may convene a board of inquiry to investigate and 4 of 1973, Sch.

report on the facts relating to- (a) the absence of any person subject to this Act; or (b) the capture of any such person by the enemy; or (c) the death of any person where an inquiry into the death is not required to be held by a civil authority; or (d) any other matter of a prescribed class, and a board of inquiry shall, if directed so to do, express their opinion on any question arising out of any matters referred to the board.

(2) The Defence Council, the Commander or the commanding ofcer may convene a board of inquiry to investigate and report on any other matter.

(3) A board of inquiry shall consist of the prescribed number of persons, being persons subject to this Act, and the chairman of the board shall be an ofcer not below the rank of lieutenant or corresponding rank.

(4) Evidence given before a board of inquiry shall not be admissible against any person in proceedings before a court martial, appropriate superior authority or commanding ofcer other than proceedings for an offence under section 53, or for an offence under section 69 where the corresponding civil offence is perjury.

224.

(1) Where a board of inquiry inquiring into the absence of Report of inquiry into absence to be an ofcer or serviceman reports that he has been absent without leave recorded.

or other sufcient cause for a period specied in the report, not being less than twenty-one days, a record of the report shall be entered in the service books.

(2) A record entered in pursuance of subsection (1) shall, unless the absentee subsequently surrenders or is arrested, or the report of the board of inquiry is annulled by the Defence Council or a subsequent board of inquiry, have the like effect as a conviction by court martial for desertion.

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199 Armed Forces [Rev.

2009 Complaints by 225.

(1) If an ofcer thinks himself wronged in any matter by ofcers.

a superior ofcer or authority and on application to his commanding ofcer does not obtain the redress to which he thinks he is entitled, he may make a complaint in writing to the Defence Council through his commanding ofcer and the Commander.

(2) On receiving such a complaint, the Defence Council shall investigate the complaint and grant any redress which appears to it to be necessary.

Complaints by 226.

(1) If a serviceman thinks himself wronged in any matter by serviceman.

12 of 1978, Sch., an ofcer (other than his commanding ofcer) or by a serviceman, he 17 of 1979, Sch.

may make a complaint to his commanding ofcer.

(2) If a serviceman thinks himself wronged in any matter by his commanding ofcer, either by reason of redress not being given to his satisfaction on a complaint under subsection (1) or for any other reason, he may make a complaint in writing to the Commander through his commanding ofcer.

(3) If a serviceman is dissatised with the decision of the Commander under subsection (2), he may make a complaint in writing to the Chief of General Staff through his commanding ofcer and the Commander.

(4) On receiving a complaint under this section, the commanding ofcer, the Commander or the Chief of General Staff, as the case may be, shall investigate it and grant any redress which appears to be necessary.

Regulations.

227.

(1) Subject to the powers of the President under this Act 12 of 1978, Sch., the Defence Council may make regulations for better carrying out 13 of 1978, Sch., the provisions and purposes of this Act and generally for the good 17 of 1979, Sch.

government of the armed forces and the constabulary, and, without prejudice to the generality of the foregoing, such regulations may make provision with respect to- (a) the commissioning and appointment of ofcers, and their terms of service, retirement, resignation and precedence, and similar matters; (b) the enlistment of recruits, including the administration of oaths and afrmations; (c) the promotion of ofcers and servicemen; www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 123 (d) the persons, being members of the armed forces, in whom command over any service of the armed forces or any part or member thereof is vested, and as to the circumstances in which such command is vested; (e) the attachment and secondment of ofcers and servicemen under Part IV; (f) with the consent of the Treasury, the pay, allowances, pensions and gratuities of members of the armed forces, including the manner of reckoning service before the commencement of this Act for pensions and gratuities; (g) the seniority in rank, and the pension and other benets, of a person who resigns his commission or is discharged from the armed forces to facilitate his being granted a commission or his enlisting in another service of the armed forces; (h) the periods and terms of service in the volunteer reserve, and other matters concerning service in the volunteer reserve; (i) the distribution, organization and duties of the armed forces; (j) the government, discipline, pay and conditions of service of cadet forces; (k) the distribution, posting, transfer, attachment and inspection of personnel; (l) the description, supply, use and disposal of arms, accoutrements, clothing and other stores, including investigation into losses thereof; (m) the proper administration and control of establishments of the armed forces, including prohibiting, regulating or controlling entry into, presence within, meetings in and trafc within such establishments; (n) the discipline, good order and guidance of the armed forces; (o) forfeiture of pay and deductions from pay (but not so as to permit a penal deduction, that is to say a deduction to be made by reason of the commission of an offence or other wrongful act or in consequence of negligence), and the www.kenyalaw.org CAP124.

199 Armed Forces [Rev.

2009 determination of questions concerning forfeiture of pay and deductions from pay; (p) the delegation of any or all of the functions of a commanding ofcer under this Act, in specied cases and to a specied extent, to ofcers of a specied class; (q) the execution of sentences of death under this Act, including the manner and place where such executions are to be carried out and the custody, treatment and removal of persons under sentence of death; (r) the execution of sentences of imprisonment under this Act, including the prisons in which they are to be served, and the classication, treatment, employment, discipline, control, removal and temporary release on compassionate grounds of persons serving such sentences, and the appointment, powers and duties of inspectors, visitors, governors and members of the staff of service prisons, and the removal of prisoners; (s) active service punishment; (t) billeting and requisitioning, including requiring persons to furnish particulars of the motor vehicles, and of the trailers normally drawn by motor vehicles, and of the ships, boats, horses, mules, donkeys, camels, food, forage, fuel and stores in their possession and to afford proper facilities for their inspection; (u) the government, discipline and pay of the reserve, including calling out reservists and requiring reservists to report themselves from time to time and to obtain the permission of the competent service authority before leaving Kenya; (v) the government, discipline, pay and conditions of service of the constabulary; (w) the convening, constitution and procedure of boards of inquiry, the rules of evidence to be observed and the taking of evidence by such boards, including the administration of oaths and afrmations to witnesses; (x) fees and forms; (y) prescribing anything which may be prescribed under this Act, other than a matter which may be prescribed under section 228 (2) (m); www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 125 (z) the making of inquiries regarding members of the armed forces missing in action and the giving of awards and decorations, the promotion of, and the disposal of pay and allowances of, such persons.

(2) Subject to this Act, any regulations made under subsection (1) may empower the Chief of General Staff, or the Commander in respect of his service, or the Commandant of the constabulary in respect of the constabulary, to make (subject to restrictions or exceptions) general, special, routine and standing orders with respect to all or any of the following matters- (a) discipline, control, good order and guidance; (b) organization, administration and duties; (c) promotion, pay and allowances; (d) the distribution, posting, transfer, attachment and inspection of personnel; (e) the description, supply, use and disposal of arms, accoutrements, clothing and other stores, but such orders shall not be inconsistent with this Act and shall not be published in the Gazette.

228.

(1) The Minister, on the advice of the Defence Council, Rules of procedure.

may make rules, called rules of procedure, with respect to the matters 4 of 1973, Sch.

specied in subsections (2), (3) and (4).

(2) Rules of procedure may make provision with respect to the investigation and trial of, and awarding of punishment for, offences triable by court martial, commanding ofcers and appropriate superior authorities, and with respect to the conrmation and revision of ndings and sentences of courts martial, and, without prejudice to the generality of the foregoing, rules of procedure may make provision with respect to- (a) the procedure to be observed in bringing charges before commanding ofcers and appropriate superior authorities; (b) the manner in which charges so brought are to be investigated, and the taking of evidence (whether orally or in writing, whether on oath or not and whether in full or in abstract form) for the purpose of investigating or dealing www.kenyalaw.org CAP126.

199 Armed Forces [Rev.

2009 summarily with such charges or otherwise as a preliminary to their trial by court martial, and in any case making provision for the application of section 91 in any case where the accused requires that evidence shall be taken on oath; (c) adding to a charge which has been investigated, or replacing it with, a new charge for an offence disclosed by evidence taken on the investigation, and treating the investigation as the investigation of the new charge; (d) the convening and constitution of courts martial; (e) the sittings, adjournment and dissolution of courts martial.

(f) the procedure to be observed in trials by court martial; (g) the representation of the accused at such trials; (h) procuring the attendance of witnesses before courts martial and at the taking of evidence in the circumstances described in paragraph (b); (i) applying in relation to proceedings before commanding ofcers and appropriate superior authorities, and otherwise in relation to proceedings preliminary to trial by court marital, all or any of the provisions of sections 93, 94 and 95; (j) empowering a court martial or the convening ofcer, in specied cases and to a specied extent, to amend a charge which is being tried by the court, but so that the power shall not be exercisable in circumstances substantially different from those in which indictments are amendable by a civil court, and shall not be exercisable except subject to the same conditions (as nearly as circumstances admit) as those subject to which indictments may be amended; (k) empowering a court martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufcient to support a nding of guilty of the like offence as that charged, to make a nding of guilty subject to specied exceptions or variations, if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence; (l) the forms of orders and other documents to be made for the purposes of any provision of this Act or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 127 the rules of procedure relating to the investigation or trial of, or award of punishment for, offences which may be tried by courts martial, commanding ofcers or appropriate superior authorities or to the conrmation and revision of the ndings and sentences of courts martial; (m) any matter which may be prescribed in relation to the matters mentioned in this subsection.

(3) Rules of procedure may make provision with respect to the exercise by a judge advocate of his functions at a trial by court martial, and, without prejudice to the generality of the foregoing, as to the effect of advice or rulings given to a court martial by a judge advocate on questions of law (including questions as to the joinder of charges and as to the trial of persons jointly or separately), for requiring or authorizing the presiding ofcer of a court martial in specied cases to direct that any such questions of law shall be determined by a judge advocate in the absence of the presiding ofcer and other members of the court and any ofcers under instruction, and for applying to the judge advocate and his proceedings on any such determination any specied provisions of this Act relating to the court or its members and the proceedings thereof.

(4) Rules of procedure may make provision for determining the cases in which and the extent to which courts martial may, in sentencing an accused for any offence of which he is convicted, at the request of the accused take into consideration other offences under Part V which he has committed, and in such case may also make provision for conferring on the court taking one or more offences into consideration power to direct the making of such deductions from the offenders pay as the court would have had power to direct if he had been found guilty of the offence or offences taken into consideration as well as of the offences of which he was in fact found guilty.

229.

( Repealed by 12 of 1978, Sch.).

230.

The Chief Justice may make rules prescribing the practice Rules of court.

and procedure in appeals under Part IX.

231.

(1) Any power conferred by this Act to make regulations, Powers exercisable in rules, orders or other instruments shall include power to make provision subsidiary legislation.

for specied cases or classes of cases, and to make different provision for different cases or classes of cases, and classes of cases may be dened by reference to any circumstances specied in the instrument.

(2) Any regulations, rules, orders or other instruments made under www.kenyalaw.org CAP128.

199 Armed Forces [Rev.

2009 this Act may- (a) impose conditions, or require acts or things to be performed or done to the satisfaction of any person named therein, whether or not he is a member of the armed forces or the constabulary; (b) empower such a person to issue directions, either orally or in writing, requiring acts or things to be performed or done, or prohibiting acts or things from being performed or done; or (c) prescribe periods or dates within, upon or before which such acts or things shall be performed or done or such conditions shall be fullled, and providing for appeal against any such imposition, requirement, or directions.

Execution of orders, 232.

Save as expressly provided by this Act, any direction, instruments, etc.

requirement, order or determination which under this Act may be given or made by an ofcer or a service authority may be signied under the hand of any ofcer duly authorized in that behalf; and any instrument signifying such direction, requirement, order or determination and purporting to be signed by an ofcer stated therein to be so authorized shall, unless the contrary is proved, be presumed to have been signed by an ofcer so authorized.

FIRST SCHEDULE (s.

96) alternatIVe offenCes of WhICh aCCused may be ConVICted by Court martIal Offence Charged Alternative Offence 1.

Striking his superior ofcer.

1.

Using violence to his superior ofcer otherwise than by striking him.

Offering violence to his superior ofcer.

2.

Using violence to his superior 2.

Offering violence to his superior ofcer otherwise than by ofcer.

striking him.

3.

Using threatening language to his 3.

Using insubordinate language to superior ofcer.

his superior ofcer.

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199 129 Offence Charged Alternative Offence 4.

Disobeying in such a manner as 4.

Disobeying a lawful command to show wilful deance of wilfully or through neglect.

authority, a lawful command given or sent him personally.

5.

Desertion.

5.

Absence without leave.

6.

Attempting to desert.

6.

Absence without leave.

7.

Stealing property.

7.

Fraudulently misapplying property.

8.

An offence under section 38 8.

The corresponding offence involving wilfulness.

involving negligence.

9.

An offence under section 49(1).

9.

Any offence under section 49 (2).

10.

Any offence under section 50 10.

The corresponding offence involving striking.

involving the use of violence other than striking.

The corresponding offence involving the offering of violence.

11.

Any offence under section 50 11.

The corresponding offence involving the use of violence involving the offering of other than striking.

violence.

SECOND SCHEDULE (ss.

169 (2), 173 (4) and 193) oath of allegIanCe I,.

do hereby swear by Almighty God [or do hereby solemnly and sincerely afrm] that- (i) I will be faithful and bear true allegiance to the President and to the Republic of Kenya.

(ii) I will faithfully serve the President and the Republic of Ke- nya as an Ofcer [or Serviceman] of the Armed Forces of the Republic of Kenya [or as a member of the Armed Forces Constabulary]; (iii) I will obey all laws, and all orders, regulations, directions and instructions concerning the Armed Forces of the Republic of www.kenyalaw.org CAP130.

199 Armed Forces [Rev.

2009 Kenya [or the Armed Forces Constabulary]; and (iv) I will discharge all the duties of an Ofcer [or Serviceman] of the Armed Forces of the Republic of Kenya [or as a member of the Armed Forces Constabulary] according to the law, without fear, favour, affection or ill-will.

Signature or thumb-print of person making the oath Sworn [or afrmed] by the said after the oath had been read over and explained to him in the language, which he acknowledged to understand, at.this day of , 19.

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199 131 [Subsidiary] SUBSIDIARY LEGISLATION L.N.

250/1969, L.N.

552/1988.

Regulations under section 227 THE ARMED FORCES (ARMED FORCES CONSTABULARY SUMMARY JURISDICTION) REGULATIONS 1.

These Regulations may be cited as the Armed Forces (Armed Forces Citation.

Constabulary-Summary Jurisdiction) Regulations.

2.

In these Regulations- Interpretation.

commanding ofcer means the commanding ofcer of the unit to which a member of the constabulary is attached; detachment means any formation of the Constabulary attached to any unit of the armed forces; detachment commander means a member of the constabulary, not below the rank of the Inspector of Constabulary, who is in immediate command of a detachment.

3.

(Deleted by L.N.

552/1988).

4.

(1) subject to paragraph (2) the Commandant, with the agreement of Delegation of powers.

the commanding ofcer, may delegate to a detachment commander of whatever L.N.

552/1988.

rank the power to investigate and deal summarily with charges which he himself may investigate and deal: Provided that such a delegation shall not include- (i) The power to remand the accused for trial by court martial; or (ii) The power to order the making of an abstract of evidence.

(2) A detachment commander to whom the power to investigate and deal summarily with charges has been delegated under paragraph (1) may only award the following punishments- (a) a ne not exceeding the equivalent of a quarter of a months pay; (b) stoppages up to a maximum of three hundred shillings.

(3) The commanding ofcer may not delegate his powers of punishment to any other ofcer.

Limitation of powers.

5.

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199 Armed Forces [Rev.

2009 [Subsidiary] L.N.

552/1988.

with a charge under any of the following sections of the Act- (a) sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 28 (1) and 31; (b) sections 38 (a) and 39 (a), where the subject matter exceeds in value one thousand shillings; (c) sections 38 (b), 39 (b), 40, 43, 44, 45, 46, 47, 49 (1), 52, 53, 55, 56, 57, 60, 61, 62, 63, 64 and 65; (d) section 66, where the Commandant and the commanding ofcer may not deal summarily with the substantive offence; (e) section 69, unless the corresponding civil offence is one of those specied in the Schedule.

Stoppages.

6.

The Commandant and the commanding ofcer shall not, without the permission of higher authority, award the punishment of stoppages exceeding one thousand shillings.

Dismissal and 7.

The punishments of dismissal and reduction in rank, when awarded by reduction in rank.

a commanding ofcer, are subject to conrmation by the Commandant.

Restriction on summary dealing 8.

A commanding ofcer of the rank of Deputy Commandant may only with charges by award the following punishments- commanding ofcer (a) a ne not exceeding the equivalent of half a months pay; of the rank of captain.

(b) stoppages up to a maximum of ve hundred shillings.

Restriction on summary dealing 9.

A commanding ofcer of a rank of Inspector of Constabulary or below with charges by may only award the following punishments- commanding ofcer (a) a ne not exceeding the equivalent of a quarter of a months of the rank of pay; lieutenant.

(b) stoppages up to a maximum of three hundred shillings.

SCHEDULE (r.

5) CIVIl offenCes WhICh a CommandIng offICer or approprIate superIor authorIty may deal WIth summarIly Cap.

63.

1.

Theft, contrary to section 275 of the Penal Code, where the value of the thing stolen does not exceed two hundred shillings.

2.

Common assault, contrary to section 250 of the Penal Code.

Cap.

403.

3.

Careless driving of a motor vehicle, contrary to section 49 of the Trafc Act.

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2009] Armed Forces CAP.

199 133 [Subsidiary] 4.

Taking and driving away a motor vehicle without the consent of the owner or other lawful authority, contrary to section 65 of the Trafc Act.

5.

Reckless or dangerous driving of a bicycle, contrary to section 86 of the Trafc Act.

6.

Careless driving of a bicycle, contrary to section 87 of the Trafc Act.

THE ARMED FORCES (GENERAL) REGULATIONS L.N.

251/1969.

1.

These Regulations may be cited as the Armed Forces (General) Citation.

Regulations.

Interpretation.

2.

In these Regulations civilian employee means a person who is subject to the Act by virtue of section 9 thereof; detachment means a part of a unit which is so separated from the unit to which it belongs, that the commanding ofcer of that unit cannot effectively exercise his disciplinary powers as commanding ofcer over it, or a ship.

3.

(1) For the purposes of the denition contained in section 2 (1) of the Commanding ofcer.

Act, the commanding ofcer in relation to a member of the armed forces is the ofcer who has powers of command over that member and who- (a) is in immediate command of the unit to which that member belongs or is attached and who is directly responsible in disciplinary matters to an ofcer empowered to convene a court martial to try an ofcer or serviceman belonging or attached to that unit; or (b) where that member is serving with a detachment which has not been placed for disciplinary purposes under the command of the commanding ofcer of another unit or detachment, is the commanding ofcer of that detachment; or (c) where that member is serving with a unit or detachment which has been placed for disciplinary purposes under the command of the commanding ofcer of another unit or detachment, is the commanding ofcer of that other unit or other detachment; or (d) in any case not falling within paragraph (a) or paragraph (b), is by the custom of the service the ofcer entitled to exercise the powers of a commanding ofcer in relation to that member (otherwise than by delegated authority).

(2) In paragraph (1), the reference to a member of the armed forces belonging or being attached to or serving with a unit or detachment, includes a reference to a civilian employee being employed in the service of that unit www.kenyalaw.org CAP134.

199 Armed Forces [Rev.

2009 [Subsidiary] or detachment or of any part or member thereof or accompanying that unit or any part thereof.

4.

(1) An ofcer appointed to command a unit shall, irrespective of Ofcer appointed to command.

seniority, exercise command over all other ofcers serving therein.

(2) The powers of punishment vested in a commanding ofcer by virtue of section 81 (2) and section 82 (4) of the Act shall only be exercised by the commanding ofcer of an accused or by an ofcer to whom those powers have been delegated by the commanding ofcer.

Second in command.

5.

An ofcer holding an authorized appointment of second in command of a unit shall, irrespective of seniority, exercise command over all other ofcers serving therein except the ofcer appointed to command the unit.

6.

In the absence of both the ofcer in command of a unit and the ofcer Senior ofcers.

appointed second in command thereof, the senior ofcer in that unit shall exercise command over all other ofcers serving therein.

Powers of command.

7.

The powers of command to be exercised by ofcers shall be over ofcers junior to them and over all servicemen.

Appointments, 8.

The Chief of General Staff may make standing orders with respect to promotion, pay and the administration of pay and allowances and the promotion of personnel, and allowances.

the appointments which may be held by personnel.

Standing orders.

9.

The Chief of General Staff or the Commander, in respect of his service, may make general, special, routine and standing orders with respect to the following matters- (a) discipline, control, good order and guidance; (b) organization, administration and duties; (c) the distribution, posting, transfer, attachment and inspection of personnel; (d) the description, supply, use and disposal of arms, accoutrements, clothing and other stores.

Manner of 10.

Any matter required by the Act to be promulgated shall be promulgation.

promulgated either- (a) by being communicated to the accused; or (b) if the accused absents himself without leave before the matter can be communicated to him, by being published in the orders of the unit to which he belongs or is attached; or (c) in such other manner as may be directed by the conrming ofcer or reviewing authority in exceptional cases.

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2009] Armed Forces CAP.

199 135 [Subsidiary] 11.

(1) The certicate required by section 75 (1) of the Act to be handed Form of certicates over with a person delivered into service custody as illegally absent, shall be of arrest.

in the form and shall contain the particulars set out in the First Schedule to these Regulations.

(2) The certicate required by section 75 (2) of the Act to be handed over with a person delivered into service custody, shall be in the form and contain the particulars set out in the Second Schedule to these Regulations.

12.

For the purposes of section 138 (5) of the Act, the prescribed Prescribed documents are those specied in the Third Schedule to these Regulations.

documents of record.

13.

Without prejudice to any proceedings under any other section of Investigation of the Act, the cause and extent of all damage or loss to which section 149 of the barrack damage.

Act relates, and the time at which such damage or loss was occasioned, shall be investigated- (a) if personnel belonging to more than one unit are concerned, by a board of inquiry convened under the Act; or (b) if personnel belonging only to the one unit are concerned- (i) by a board of inquiry convened as aforesaid; or (ii) by the commanding ofcer of the unit concerned, or by an ofcer appointed by him both of whom may consider evidence, either written or oral, relating to such damage or loss as aforesaid: Provided that in every case where the cost and extent of the damage or loss will total two thousand shillings or more such investigation shall be by a board of inquiry convened as aforesaid.

14.

The amount which a person may be required to contribute under Contribution towards subsection (1) of section 149 of the Act towards compensation for any damage barrack damage.

or loss shall be the amount of the damage or loss divided by the number of persons who could under the said subsection be required to contribute towards compensation for the damage or loss: Provided that where any part of the amount of the damage or loss has been written off, or is the subject of an application for write-off, as a charge against the public under any regulations for the time being in force relating to write-off, the amount of the damage or loss for the purposes of these Regulations shall be the total amount of the damage or loss less the part which has been so written off or is the subject of such application.

15.

(1) Subject to paragraph (2) of this regulation, an investigation for Investigation into the purpose of section 148 (1) of the Act into the cause of any loss or damage loss or damage of to public property shall be by- public property.

(a) a board of inquiry convened under section 223 of the Act; or www.kenyalaw.org CAP136.

199 Armed Forces [Rev.

2009 [Subsidiary] (b) an examination by the Commander, or by an ofcer authorized by him, of evidence, whether oral or written relating to any matter.

(2) Where during the course of an examination of evidence under paragraph (1) (b) it appears to the Commander or authorized ofcer that a person may have been responsible for such loss or damage as aforesaid, that person shall be given an opportunity of making a statement, if he so desires, for the consideration of the Commander or authorized ofcer: Provided that, where in any proceedings before a court martial or an appropriate superior authority a person has been convicted in circumstances involving a nding that he was guilty of a wrongful act or negligence which occasioned such loss or damage as aforesaid, it shall not be necessary to give him an opportunity of making any such statement as aforesaid.

Deductions and 16.

(1) The pay of an ofcer or serviceman shall be available to meet forfeitures.

any restitution order or deductions which may be awarded or ordered and any forfeiture or ne which may be awarded under service law.

(2) For the purposes of section 145 of the Act, the minimum monthly rate of pay which an ofcer or serviceman shall be allowed to remain in receipt of shall be not less than one-half of the net salary payable in any month after all deductions from his gross salary have been made in respect of governmental imposts and the recovery of advances.

(3) Notwithstanding paragraph (2), when an ofcer or serviceman proceeds on terminal leave any amount authorized to be deducted from the pay will be deducted from any balance (whether or not representing pay) which may be due to him.

(4) Without prejudice to the power of remission of forfeitures and deductions by the Commander under section 150 of the Act, any deduction of pay imposed under section 148 of the Act may be remitted by any ofcer superior in command to the ofcer imposing the deduction.

Forfeiture of pay for 17.

For the purposes of section 146 (3) of the Act, the number of days a absence from duty.

person is absent or is in hospital shall be computed as follows- (a) the number of days shall be reckoned from the time that the absence, or as the case may be, the time spent in hospital, commences; (b) every period of twenty-four hours shall be reckoned as one day and save as hereinafter provided a part of a day shall be reckoned as one day; and (c) when the total period of absence or the time spent in hospital is less than six hours no account shall be taken thereof unless the person was, by reason of his being absent or in hospital, prevented from performing a service duty which thereby devolved on some other person.

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2009] Armed Forces CAP.

199 137 [Subsidiary] FIRST SCHEDULE (r.

11 (1)) CertIfICate under seCtIon 75 (1) of the armed forCes aCt I certify that.

(full name) whose service particulars are given below appeared before the.

Magistrates Court in accordance with section 73 of the Act at .on the ., 19.

alleged to have deserted/to be absent without leave* having surrendered to.

/been arrested by*.

at.

(place) on.

(date) and was committed to civil custody/delivered into service custody*.

The ofcer/serviceman* admitted/did not admit* that he had illegally absented himself without leave from his unit at.

(place) on.

(date).

No.

.

Rank.

Service particulars of the ofcer or serviceman referred to above { Name.

Unit.

Dated this.

day of.

,19.

.

Magistrate *Delete as appropriate.

SECOND SCHEDULE (r.

11 (2) CertIfICate under seCtIon 75 (2) of the armed forCes aCt I certify that.

(full name) surrendered himself at.

(place) on the.

day of ., 19., as being illegally absent from his unit at.

(place) on the.

day of.

19., and gave the following particulars- No.

.

Rank.

Name.

Unit.

Dated this.

day of ., 19.

.

Police ofcer who caused the above-named person to be delivered into service custody www.kenyalaw.org CAP138.

199 Armed Forces [Rev.

2009 [Subsidiary] THIRD SCHEDULE (r.

12) 1.

Unit orders book.

2.

Unit order book, box le.

3.

Register of deserters.

4.

Registers of public animals horses and mules, camels.

5.

Register of guard dogs.

6.

Register of recruits.

7.

Unit ammunition state.

8.

Ledger for clothing and equipment.

9.

Equipment ledger (mechanical transport).

10.

Account of rations.

11.

Account of forage/guard dogs rations.

12.

Postage book.

13.

Guard report.

14.

Minor offence report.

15.

Record of service (ofcers).

16.

Record of service (servicemen).

17.

Historical records.

18.

Conduct sheets.

19.

Educational record.

20.

Record of the report of a board of inquiry into the illegal absence of an ofcer or serviceman.

21.

Record of leave.

22.

Ofcial service accounting documents.

23.

Flying log book-pilots.

24.

Aircraft and aircraft material servicing forms.

25.

Air trafc controllers watch log.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 139 [Subsidiary] 26.

Runway controllers log book.

27.

Authorization for movement of mechanical transport.

28.

Mechanical transport vehicle log book.

29.

Ships log book.

www.kenyalaw.org CAP140.

199 Armed Forces [Rev.

2009 [Subsidiary] L.N.

252/1969.

THE ARMED FORCES (ACTIVE SERVICE PUNISHMENT) REGULATIONS Citation.

1.

These Regulations may be cited as the Armed Forces (Active Service Punishment) Regulations.

Interpretation.

2.

In these Regulations- offender means a person subject to the Act who has been awarded active service punishment by sentence of a court martial or by a commanding ofcer.

Places where 3.

An offender shall undergo active service punishment with the unit to punishment may be which he belongs or to which he is for the time being attached: carried out.

Provided that where the ofcer commanding any body of servicemen or any command or other area (not being below the rank of lieutenant-colonel) has appointed an ofcer to supervise the carrying out of active service punishment, the offender may be required to undergo the whole or any part of his punishment elsewhere under the supervision of that ofcer.

Nature of 4.

Active service punishment consists of one or more of the following, punishment.

in addition to those duties which an offender might be required to perform if he were not undergoing punishment- (a) solitary connement not exceeding three days in any one week and in such place and such manner as may be directed by the ofcer commanding the unit in which the offender undergoing the punishment is serving, or by the ofcer appointed to supervise the carrying out of such punishment; (b) additional drill not exceeding three separate periods of one hour each in any one day with an interval of not less than one hour between each drill: Provided that such drill shall not be performed on Sundays or, if the offender is not of the Christian religion, any other day which is the equivalent of a Sunday in the religion to which the offender belongs; (c) such other duties and loss of privileges as may be directed by the ofcer commanding the unit in which the offender undergoing the punishment is serving, or by the ofcer appointed to supervise the carrying out of the punishment; but so that an offender shall not be subjected to any treatment to which he could not be subjected if he were undergoing a sentence of imprisonment in a service prison.

Personal restraint.

5.

(1) An offender may not be placed under personal restraint except- (a) to prevent his escape; or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 141 [Subsidiary] (b) to protect himself or others from injury.

(2) An offender may not be placed under personal restraint except in accordance with the following conditions- (a) the period for which the offender may be kept continuously under personal restraint shall not exceed twenty-four hours: Provided that the ofcer superior in command to the ofcer supervising the personal restraint may authorize such additional period as he may consider necessary so long as the total period of such restraint does not exceed forty-eighthours at any one time; and (b) handcuffs shall not be placed with the hands of the offender behind his body unless it is necessary by reason of his violence.

THE ARMED FORCES (BOARD OF INQUIRY) L.N.

253/1969.

REGULATIONS 1.

These Regulations may be cited as the Armed Forces (Board of Citation.

Inquiry) Regulations.

2.

In these Regulations, represented means represented by an ofcer Interpretation.

or an advocate.

3.

A Board of Inquiry may be convened for the purposes of section 223 Convening authority.

of the Act by order of the Commander, any ofcer commanding a formation or body of servicemen or any ofcer commanding a unit or detachment of the armed forces, hereinafter referred to as the convening authority.

4.

The following provisions shall apply in relation to the order convening Order convening aa board- board.

(a) the order shall specify the composition of the board and the place and time at which the board shall assemble; (b) the order may, and where the matter referred to the board is that mentioned in regulation 7 (1) (a) shall, specify the terms of reference of the board and be published in service orders; (c) the order may direct the board to express their opinion on any question arising out of any matter referred to the board; and (d) the convening authority may at any time revoke, vary or suspend the order.

5.

(1) A board convened to investigate any matter shall consist of not Constitution of less than three persons subject to service law of whom one shall be of the rank board.

of lieutenant or above or corresponding rank who shall be the chairman of the www.kenyalaw.org CAP142.

199 Armed Forces [Rev.

2009 [Subsidiary] board and not more than one of whom may be a serviceman of the rank of Warrant Ofcer Class II or above or corresponding rank.

(2) The convening authority shall appoint the chairman and members of a board by name.

Duties of board.

6.

A board shall investigate and report on the facts relating to any matter referred to them and, if directed so to do, to express their opinion on any question arising out of any such matter.

Matters for reference 7.

(1) Subject to the provisions of these Regulations, a board shall be to board.

convened with reference to- (a) the absence of any person subject to the Act who has been continuously absent without leave for a period of not less than twenty-one days and the deciency (if any) in public property issued to him for his use; (b) the capture of any person subject to the Act by the enemy and his conduct in captivity if, on his return from captivity, the convening authority considers that there are reasonable grounds for suspecting- (i) that he was captured through disobedience to orders or wilful neglect of his duty; or (ii) that having been captured he failed to take any reasonable steps available to him to rejoin the armed forces; or (iii) that having been captured he served with or aided the enemy in the prosecution of hostilities or measures calculated to inuence morale or in any other manner whatsoever not authorized by international usage; and (c) the death of any person subject to the Act, where an inquiry into the death is not required to be held by any civil authority.

(2) Subject as aforesaid, a board may be convened with reference to any matter which the convening authority decides to refer to a board.

Deferring and staying 8.

(1) Subject to paragraph (2) where any matter is the subject of of proceedings.

investigation by any authority of the armed forces, or by a civil authority, or of proceedings under service law, or of proceedings in a civil court whether within or outside Kenya, and- (a) a board has not been convened with reference thereto, the convening authority may defer the convening of a board until the completion of such investigation or proceedings as aforesaid and upon completion thereof shall not be required to convene a board if satised that a board is not necessary; or (b) a board has already been convened with reference thereto, the www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 143 convening authority may stay the proceedings of the board until [Subsidiary] such investigation or proceedings have been completed and shall then dissolve the board if satised that a board is not necessary.

(2) Paragraph (1) does not apply to the convening of a board with reference to such absence and such deciency (if any) as are mentioned in regulation 7 (1) (a) but where the convening authority is satised that the absence has terminated, and- (a) a board has not yet been convened with reference to the absence and deciency (if any), the convening authority shall not be required to convene a board; and (b) a board has already been convened with reference thereto, the convening authority may forthwith dissolve the board.

9.

A board shall assemble at the time and place stated in the order Assembly of board.

convening the board.

10.

The chairman shall lay the terms of reference before the board, and Procedure of board.

the board shall proceed to hear and record evidence in accordance with these Regulations.

11.

(1) The chairman may from time to time adjourn the board, which shall Adjournment and sit on such occasions and in such places as he may from time to time direct.

reassembly.

(2) Without prejudice to paragraph (1), the convening authority may at any time direct the board to reassemble for such purpose as may be specied by the convening authority.

12.

(1) A board shall hear the evidence of the witnesses who have been Witnesses.

made available by the convening authority, and may hear the evidence of such other person as they think t.

(2) While a civilian witness is giving evidence before a board, he may be represented, but subject to regulation 13 his representative shall not be entitled to be present at any other time.

(3) A civilian witness shall be entitled to receive the reasonable expenses of his attendance and a reasonable allowance in respect of loss of time.

(4) The board may receive any evidence which it considers relevant to the matter referred to it, whether oral or written and whether or not it would be admissible in a civil court.

13.

(1) Where it appears to the convening authority, or if a board has been Persons who may be convened either to the convening authority or to the chairman, that any witness affected by nding.

or other person may be affected by the ndings of the board, the convening authority or, as the case may be, the chairman shall take such steps as are in his view reasonable and necessary to secure that such witness or other person has notice of the proceedings and, if he so desires, has an opportunity of being present, and represented, at the sittings of the board, or at such part thereof as www.kenyalaw.org CAP144.

199 Armed Forces [Rev.

2009 [Subsidiary] the convening authority or, as the case may be, the chairman, may specify.

(2) Any such witness or other person referred to in paragraph (1) may give evidence, question witnesses or call witnesses to give evidence on the matters which may affect him, and, if he is represented, his representative may question witnesses, but a representative shall not address the board except with the permission of the chairman.

Oaths.

14.

(1) The convening authority shall have power to direct that, subject to paragraph (3) every witness before a board shall be examined on oath: Provided that, where a child of tender years called as a witness does not, in the opinion of the board, understand the nature of an oath, his evidence may be received though not given on oath if, in the opinion of the board, he is possessed of sufcient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.

(2) Subject to paragraph (3), an oath shall be administered to any person in attendance on a board as interpreter.

Infra.

(3) An oath shall be administered before a board in the form and manner prescribed by the Armed Forces Rules of Procedure.

Exhibits.

15.

(1) Subject to paragraph (2), any document or thing produced to a board by the witness when giving his evidence shall be made an exhibit.

(2) When an original document or book is produced to a board by a witness, the board may, at the request of the witness, compare a copy of it or an extract therefrom of the relevant parts with the original, and after they have satised themselves that such copy or extract is correct and the chairman has certied thereon that the board have compared it with the original and found it correct, the board may return the document or book to the witness and attach the copy or extract to the record of the proceedings as an exhibit.

(3) Every exhibit shall- (a) be marked with a number or letter and be signed by the chairman or have a label afxed to it bearing a number or letter and the signature of the chairman; (b) be attached to or kept with a record of the proceedings unless in the opinion of the board it is not expedient to attach it to or keep it with the record.

(4) When an exhibit is not attached to or kept with the record of the proceedings under paragraph (3) (b), the chairman shall ensure that proper steps are taken for its safe custody.

Record of 16.

(1) The chairman shall record or cause to be recorded the proceedings proceedings.

of the board in writing and in sufcient detail to enable the convening authority to follow the course of the proceedings.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 145 [Subsidiary] (2) The evidence of each witness shall be recorded in narrative form recording as nearly as possible the words used: Provided that, if the board considers it necessary, any particular question and answer shall be taken down verbatim.

(3) The evidence of each witness, as soon as it has been taken down in accordance with paragraph (2), shall be read over to him and shall be signed by him.

(4) A record of the proceedings shall be signed by the chairman and such other members of the board as there may be and forwarded to the convening authority.

17.

Where a board reports that a person subject to the Act has been absent Record of report.

without leave or other sufcient cause for a period specied in the report, not being less than twenty-one days, and that there is a deciency in any public property issued to him for his use, a record of the report of such deciency shall, in addition to the record required by section 224 (1) of the Act, be entered in the book maintained for the purpose and in accordance with the form set out in the Schedule to these Regulations; and such entry shall be signed by the commanding ofcer of the person declared to be absent.

SCHEDULE (r.

17) Record of a report of a Board of Inquiry into the absence of.

.

.

.

[number, rank, name and unit] entered in pursuance of section 224 of the Armed Forces Act.

The Board of Inquiry sitting at.

on the.

day of ., 19., and consisting of.

.

.

[rank, name and unit) chairman, and.

.[rank, name and unit] } .[rank, name and unit] members.

report that.

.

[number, rank, name and unit] has been absent from.

[unit] at.

.

[place] without leave or other sufcient cause for a period beginning on the .day of.

,19., and is still so absent, and further report* that the said.

[rank and name] was on the.

day of.

,19., and still is decient of the public property issued to him for his use particulars of which are set out below-.

.

.

_ * Omit if no such further report is made.

www.kenyalaw.org CAP146.

199 Armed Forces [Rev.

2009 [Subsidiary] Dated this.

day of ., 19.

(Signed).

Commanding Ofcer of the person referred to in the report L.N.

254/1969, THE ARMED FORCES (SUMMARY JURISDICTION) L.N.

145/1985, REGULATIONS L.N.

553/1988.

Citation.

1.

These Regulations may be cited as the Armed Forces (Summary Jurisdiction) Regulations.

Interpretation.

2.

(1) In these Regulations- civilian employee means a person who is subject to the Act by virtue of section 9 thereof; detachment means a part of a unit which is so separated from the unit to which it belongs, that the commanding ofcer of that unit cannot effectively exercise his disciplinary powers as commanding ofcer over it, or a ship; subordinate commander means an ofcer appointed as such by the commanding ofcer of the accused.

(2) These Regulations do not apply in respect of members of the constabulary.

3.

(1) For the purposes of these Regulations, the commanding ofcer Commanding ofcer.

of an accused is the ofcer who has powers of command over the accused and who- (a) is in immediate command of the unit to which the accused belongs or is attached and who is directly responsible in disciplinary matters to an ofcer empowered to convene a court martial to try an ofcer or serviceman belonging or attached to that unit; or (b) where the accused is serving with a detachment which has not been placed for disciplinary purposes under the command of the commanding ofcer of another unit or detachment, is the commanding ofcer of that detachment; or (c) where the accused is serving with a unit or detachment which has been placed for disciplinary purposes under the command of the commanding ofcer of another unit or detachment, is the commanding ofcer of that other unit or other detachment; or (d) in any case not falling within paragraph (a) or paragraph (b), is by the custom of the service the ofcer entitled to exercise the powers www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 147 [Subsidiary] of a commanding ofcer in relation to the accused (otherwise than by delegated authority).

(2) In paragraph (1) the reference to the accused belonging or being attached to or serving with a unit or detachment includes a reference to a civilian employee being employed in the service of that unit or detachment or of any part or member thereof or accompanying that unit or any part thereof.

Delegation.

4.

(1) Subject to regulation 10, a commanding ofcer may delegate to a subordinate commander of whatever rank who is under his command and directly responsible to him in disciplinary matters the power to investigate and deal summarily with charges with which he himself may so deal.

(2) Notwithstanding the restrictions placed upon the powers of a subordinate commander by virtue of regulation 10, where a unit or detachment is serving with and has been placed for disciplinary purposes under the command of the commanding ofcer of another unit or detachment, that commanding ofcer may appoint a subordinate commander and delegate to him the full powers of a commanding ofcer.

(3) A delegation under paragraph (1) or paragraph (2) shall not include- (a) the power to remand the accused for trial by court martial; or (b) the power to order the making of an abstract of evidence.

(4) When a commanding ofcer delegates the power to investigate and deal summarily with charges under this regulation, he may impose such restrictions as he considers proper upon the exercise of that power by the ofcer to whom it is delegated, in addition to the restrictions imposed by regulation 10.

Restriction on 5.

A commanding ofcer shall not deal summarily with a charge under any of the following sections of the Act- commanding ofcer dealing summarily (a) sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, and 28 (1) with charges.

; L.N.

145/1985, L.N.

553/1988.

(b) section 31, unless the desertion alleged falls within the denition of that offence in subsection 2 (d); (c) sections 38 (a) and 39 (a), where the subject-matter exceeds in value one thousand shillings; (d) sections 38 (b) and 39 (b), 40, 43, 44, 45, 46, 47, 49 (1), 52, 53, 55, 56, 57, 60, 61, 62, 63, 64 and 65; (e) section 66, where the commanding ofcer may not deal summarily with the substantive offence; www.kenyalaw.org CAP148.

199 Armed Forces [Rev.

2009 [Subsidiary] (f) section 69, unless the corresponding civil offence is one of those specied in the Schedule to these Regulations.

Limitation on 6.

A commanding ofcer shall not, without the permission of higher awarding stoppages.

authority, award the punishment of stoppages exceeding one thousand L.N.

553/1988.

shillings.

Limitation of powers 7.

A commanding ofcer of the rank of captain or corresponding rank of commanding may only award the following punishments- ofcer of the rank of captain.

(a) to a warrant ofcer or non-commissioned ofcer- L.N.

553/1988.

(i) a ne not exceeding the equivalent of half a months pay; (ii) severe reprimand; (iii) reprimand; (iv) admonition; (v) stoppages up to a maximum of ve hundred shillings; (b) to a serviceman, other than a warrant ofcer or noncommissioned ofcer- (i) imprisonment for a period not exceeding forty-two days; (ii) a ne not exceeding the equivalent of half a months pay; (iii) the minor punishments specied in regulation 13; (iv) admonition; (v) stoppages up to a maximum of two hundred shillings.

Limitation on powers 8.

A commanding ofcer of the rank of lieutenant or corresponding rank, of commanding or below, may only award the following punishments- ofcer not above lieutenant.

(a) to a warrant ofcer or non-commissioned ofcer- L.N.

553/1988.

(i) a ne not exceeding the equivalent of a quarter of a months pay; (ii) severe reprimand; (iii) reprimand; (iv) admonition; (v) stoppages up to a maximum of three hundred shillings; www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 149 [Subsidiary] (b) to a serviceman, other than a warrant ofcer or non-commissioned ofcer- (i) imprisonment for a period not exceeding twenty-one days; (ii) a ne not exceeding the equivalent of a quarter of a months pay; (iii) the minor punishments specied in regulation 13; (iv) admonition; (v) stoppages up to a maximum of three hundred shillings.

9.

Where the commanding ofcer is commanding ofcer by virtue of Commanding ofcer paragraph (b) of regulation 3- of detachment.

(a) the commanding ofcer of the unit to which the sub-unit or detachment belongs may restrict him in the exercise of his powers having regard to his rank or experience; (b) where he has been so restricted in the exercise of his powers, he may nevertheless exercise his full powers as a commanding ofcer if he considers it necessary for him to do so for the maintenance of discipline, but if he does so he shall immediately report his action to the commanding ofcer who restricted him in the exercise of his powers.

10.

A subordinate commander to whom the power to investigate and Limitation on powers deal summarily with charges has been delegated under regulation 4 may only of ofcer exercising award the following punishments- delegated powers.

(a) if he is of the rank of major or corresponding rank or above- (i) to a non-commissioned ofcer- (a) a ne not exceeding the equivalent of half a months pay; (b) severe reprimand; (c) reprimand; (d) admonition; (ii) to a serviceman, other than a warrant ofcer or non-commis- sioned ofcer- (a) imprisonment for a period not exceeding twenty-eight days; (b) a ne not exceeding the equivalent of half a months pay; www.kenyalaw.org CAP150.

199 Armed Forces [Rev.

2009 [Subsidiary] (c) the minor punishments specied in regulation 13; (d) admonition; (b) if he is of the rank of captain or corresponding rank or below- (i) to a senior sergeant or sergeant- (a) reprimand; (b) admonition; (ii) to a corporal or lance corporal- (a) a ne not exceeding the equivalent of a quarter of a months pay; (b) severe reprimand; (c) reprimand; (d) admonition; (iii) to a private- (a) imprisonment for a period not exceeding fourteen days; (b) a ne not exceeding the equivalent of a quarter of a months pay, (c) the minor punishments specied in regulation 13; (d) admonition.

Appropriate superior 11.

Any ofcer not below the rank of lieutenant-colonel or corresponding authority.

rank who is appointed appropriate superior authority by the Commander is L.N.

145/1985.

hereby prescribed for the purposes of section 79 of the Act as the appropriate superior authority, in addition to the Commander: Provided that an ofcer of the rank specied in the rst column hereunder or corresponding rank shall not be the appropriate superior authority for the purposes of a case in which the accused is above the rank specied in the second column hereunder or corresponding rank- lieutenant-colonel.

.

.

.

.

captain colonel.

.

.

.

.

major brigadier.

.

.

.

.

lieutenant-colonel major-general.

.

.

.

.

colonel www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 151 [Subsidiary] lieutenant-general.

.

.

.

.

brigadier general.

.

.

.

.

major-general.

12.

The appropriate superior authority shall not deal summarily with a Limitation on powers of appropriate charge against an ofcer under any of the following sections of the Act- superior authority.

(a) sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, and 28 (1); L.N.

145/1985, L.N.

553/1988.

(b) sections 38 (a) and 39 (a) where the subject-matter exceeds in value two thousand shillings; (c) sections 38 (b) and 39 (b), 40, 43, 44, 45, 46, 47, 49 (1), 52, 53, 55, 56, 57, 60, 61, 62, 63, 64 and 65; (d) section 66, where the appropriate superior authority may not deal summarily with the substantive offence; (e) section 69, unless the corresponding civil offence is one of those specied in the Schedule to these Regulations.

Award of minor 13.

(1) The minor punishments which a commanding ofcer may award punishments.

under section 82 (4)(a) (vii) and (b) (iv) of the Act are- L.N.

553/1988.

(a) up to twenty-eight days connement to barracks or stoppage of short leave, with or without extra duties; (b) up to twenty-eight days loss of privileges; (c) extra guards or picquets, except that a commanding ofcer of the rank of captain or corresponding rank or below shall not award minor punishments for a period exceeding twenty- one days.

(2) The minor punishments which a subordinate commander may award are- (a) up to twenty-one days connement to barracks or stoppage of short leave, with or without extra duties; (b) up to twenty-one days loss of privileges; (c) extra guards or picquets, except that a subordinate commander of the rank of captain or corresponding rank or below, shall not award minor punishments for a period exceeding fourteen days.

(3) The periods specied in this regulation are the maximum periods which may be awarded in the course of any one hearing.

www.kenyalaw.org CAP152.

199 Armed Forces [Rev.

2009 [Subsidiary] SCHEDULE (rr.

5 and 12) CIVIl offenCes WhICh a CommandIng offICer or approprIate superIor authorIty may deal WIth summarIly Cap.

63.

1.

Theft, contrary to section 275 of the Penal Code, where the value of the thing stolen does not exceed two hundred shillings.

2.

Common assault, contrary to section 250 of the Penal Code.

Cap.

403.

3.

Careless driving of a motor vehicle, contrary to section 49 of the Trafc Act.

4.

Taking and driving away a motor vehicle without the consent of the owner or other lawful authority, contrary to section 65 of the Trafc Act.

5.

Reckless or dangerous driving of a bicycle, contrary to section 86 of the Trafc Act.

6.

Careless driving of a bicycle, contrary to section 87 of the Trafc Act.

L.N.

256/1969.

THE ARMED FORCES (COMMISSIONING OF OFFICERS) REGULATIONS 1.

These Regulations may be cited as the Armed Forces (Commissioning of Ofcers) Regulations.

2.

(1) There is hereby established a board, to be known as the Armed Forces Commissions Board and hereinafter referred to as the Board.

(2) The function of the Board shall be to make recommendations to the Defence Council pursuant to the provisions of section 169 of the Armed Forces Act in relation to each service of the armed forces as to the grant of commissions in that service to citizens of Kenya.

3.

The Board shall consist of- (a) the Chief of General Staff, or a person deputed by him in writing for the purposes of these Regulations, who shall be chairman; (b) two ofcers of or above the rank of captain or corresponding rank; (c) the Permanent Secretary in the Ofce of the President, or a person deputed by him in writing for the purposes of these Regulations; (d) the Permanent Secretary of the Ministry for the time being www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 153 responsible for defence, or a person deputed by him in writing for [Subsidiary] the purposes of these Regulations; and (e) the Permanent Secretary of the Ministry for the time being responsible for education, or a person deputed by him in writing for the purposes of these Regulations.

(4) The Board shall meet at such times as the chairman of the Board may decide.

(2) The chairman and not less than three members shall constitute a quorum.

(3) The chairman shall have a deliberative vote, and in the case of an equality of votes shall also have a casting vote; a decision of the majority of members present and voting at the meeting shall be the decision of the Board.

(4) Every recommendation of the Board shall be signied under the hand of the chairman.

(5) Subject to the provisions of these Regulations the Board may regulate its own proceedings.

(6) The chairman may co-opt to serve on the Board for such length of time as he thinks t any person or persons whose assistance or advice he may require, but a person so co-opted shall not be entitled to vote at any meeting of the Board or be counted as a member for the purposes of forming a quorum.

(7) The chairman may appoint a secretary to the Board.

THE ARMED FORCES (EXECUTION OF SENTENCE OF L.N.

64/1970.

DEATH) REGULATIONS 1.

These Regulations may be cited as the Armed Forces (Execution of Citation.

Sentence of Death) Regulations.

2.

In these Regulations- Interpretation.

local commander means an ofcer not below the rank of lieutenant colonel under whom, or in the area of whose command, a person under sentence of death is for the time being; person under sentence means a person sentenced to suffer death under the Act whose sentence has not been commuted.

3.

(1) a person under sentence shall be detained in accordance with this Custody of person regulation.

under sentence.

(2) During the whole or any part of the period between the passing and www.kenyalaw.org CAP154.

199 Armed Forces [Rev.

2009 [Subsidiary] the carrying out of the sentence, a person under such sentence may be detained in- (a) civil custody; or (b) military custody.

(3) The manner in which a person under sentence who is in the civil or military custody and who has appealed to the high court may be taken to, kept in custody at and brought back from any place at which he is entitled to be present for the purposes of Part IX of the Act, or any place at which the High Court may order him to be taken for the purposes of any proceedings before that court, shall be as follows- (a) he may be taken to, kept in custody at and brought back from any place such as aforesaid in civil or military custody; (b) he may be kept in such custody at any such place as aforesaid in any manner ordered by the High Court.

(4) No person under sentence who is in military custody shall be transferred to civil custody except in pursuance of an order of the local commander made in the form prescribed in the First Schedule or in a form substantially to the like effect, and every such order shall be duly completed in accordance with the instructions contained in the form.

Treatment of persons 4.

Where a person under sentence is in military custody- under sentence.

(a) he shall be deprived of every article which it might be dangerous or inexpedient to leave in his possession; (b) he shall be conned in a separate cell and kept apart from all other persons; (c) he shall be kept by day and by night in the constant charge of two persons who are ofcers, warrant ofcers or non-commissioned ofcers; Infra.

(d) he shall be subject to the Armed Forces(Imprisonment) Regulations so far as they are consistent with these Regulations; (e) he shall not be required to perform any duties other than to keep clean his person and cell; (f) he shall be allowed daily physical exercise; (g) he shall be granted facilities to correspond with his relatives, friends and legal advisors; (h) he shall be permitted to smoke; (i) he shall be visited once daily by an ofcer of the unit in which he is www.kenyalaw.org Rev.

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199 155 [Subsidiary] in custody and once daily by the medical ofcer of such unit; (j) he may be visited at any time by any person authorized to visit him by written order of the local commander; (k) he may be visited by such of his relatives, friends and legal advisers as he desires to see and as are authorized to visit him by written order of the local commander; (l) he may be visited at any time by a chaplain of his own creed or denomination or, if he so desires a chaplain of another creed or denomination; (m) except as hereinbefore provided, he shall not be visited by any person; (n) all visits shall take place in the presence and hearing of an ofcer of the unit in which he is in custody unless permission to the contrary is given by the ofcer commanding the unit.

5.

Notwithstanding regulations 3, 6 and 9, no person under sentence shall Transfer to civil be transferred to a civil prison, nor shall a sentence of death passed on any such prison.

person be carried out in a civil prison, without the consent of the commissioner of prisons or the deputy commissioner of prisons.

6.

(1) If a person under sentence is in Kenya, the sentence shall be carried Where sentence may out in a civil prison.

be carried out.

(2) If a person is under sentence is outside Kenya, the sentence shall be carried out in military custody.

7.

(1) A sentence of death passed under the Act which is to be carried Execution in military out in military custody shall be executed by hanging or shooting as directed custody.

by the local commander.

(2) After promulgation of a sentence of death, the local commander shall, if the sentence is to be carried out in service custody, nominate an ofcer not below the rank of major to be responsible for the execution of the sentence.

(3) Where a sentence of death is to be carried out in military custody, the following persons in addition to the executioner and his assistants or the ring party, as the case may be, shall be present- (a) the ofcer who is responsible for the due execution of the sentence of death in accordance with these Regulations; (b) a medical ofcer of the armed forces; (c) an ofcer nominated by the local commander who is able to identify the person under sentence as the person described in the death warrant and as the person who was tried and sentenced by court martial mentioned therein; www.kenyalaw.org CAP156.

199 Armed Forces [Rev.

2009 [Subsidiary] (d) a chaplain nominated by the local commander; (e) such ofcers, warrant ofcers and non-commissioned ofcers as may be detailed for escort and security purpose or to assist at the execution; (f) the ofcer in command of the unit in which the person under sentence is in custody, and no other person shall be present without the authority of the local commander.

Execution in civil 8.

A sentence of death passed under the Act which is carried out in a civil custody.

prison shall be executed in accordance with the Prisons Act.

Cap.

90.

Death warrant.

9.

(1) The death warrant shall be issued by the local commander and shall be in the form in the Second Schedule, or in a form substantially to the like effect.

(2) The local commander shall not issue the death warrant until he is satised that, having regard to section 111 and section 124 (A) of the Act, the sentence of the death may be carried into effect.

(3) No sentence of death passed under the A ct shall be carried into effect until the death warrant has been received by the military ofcer nominated under regulation 7 (2) or by the superintendent of the prison where the sentence is to be carried out.

Death certicate and 10.

(1) As soon as practicable after a sentence of death has been carried return of warrant after execution in out in military custody, the medical ofcer in attendance shall examine the military custody.

body and ascertain the fact of death and shall sign a certicate to that effect in the form in the Third Schedule.

(2) As soon as the medical ofcer has certied the fact of death in the manner aforesaid, the ofcer responsible for carrying the sentence into effect, and the ofcer mentioned in regulation 7 (3) (c) shall complete and sign the portion of the death warrant headed Return of Warrant and the ofcer referred to in regulation 7 (2) shall send the death warrant and the medical certicate to the local commander.

Burial after execution 11.

The body of a person upon whom a sentence of death under the in military custody.

Act has been carried out in military custody shall be buried without military honours in a military cemetery or other place chosen by the local commander.

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199 157 [Subsidiary] FIRST SCHEDULE (r.

3 (4) ) order for the transfer to CIVIl Custody of a person sentenCed to death by a Court martIal To the Superintendent or other person in charge of (a) * Delete if Whereas.

(b) inapplicable.

was by a court martial held at convicted of the offence (s) of.

.(c) and by a sentence passed on the .day of ., 19.

was sentenced to suffer death, which sentence has been duly conrmed in accordance with the Armed Forces Act, and has not been commuted: Now, therefore, in pursuance of the Armed Forces Act, I hereby order you to receive into your custody and to detain the said person until the sentence of death is carried out or until you are otherwise ordered by a court or judge of competent jurisdiction or you are given further orders to discharge or deliver over the said person in due course of law, and this shall be authority for so doing.

Signed at this day of, 19 (d) Rank and appointment.

(a) Insert the name and address of the prison.

A person under sentence of death must not be committed to a civil prison until consent has been obtained pursuant to regulation 5 of the Armed Forces (Execution of Sentence of Death) Regulations.

(b) Insert the full names of the person under sentence, and his number, rank and unit.

(c) Set out the statement (but not the particulars) of the offence and the relevant section of the Armed Forces Act.

Where there is more than one offence the statement of each must be set out.

(d) The committal order must be signed by the local commander of the person under sentence.

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199 Armed Forces [Rev.

2009 [Subsidiary] SECOND SCHEDULE (r.

9 (11)) death Warrant To.

(a) Whereas.

(b) of the.was by a court martial held at.convicted of the offence(s) of (c), and by a sentence passed on the day of ., 19, was sentenced to suffer death: And whereas the nding and sentence of the said court martial have been conrmed and promulgated in accordance with the Armed Forces Act: And whereas I am satised, having regard to regulation 9 (2) of the Armed Forces (Execution of Sentence of Death) Regulations, that the sentence of death may be carried into effect: * Delete execution to Now, therefore, I hereby order you to carry into effect the said sentence be carried out in civil on(b) prison.

by.(d) and for so doing this shall be sufcient authority for your so doing.

When the said sentence has been carried into effect, the return below and the medical certicate shall be completed and the warrant returned to me (e).

Signed at this day of ., 19.

Rank.

Commanding Local Commander.

return of Warrant (e) The above sentence passed on.

(b) was carried into effect at.

(f) on the .day of ., 19 , at hours.

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199 159 [Subsidiary] (g).

(h) (a) Military ofcer or superintendent of civil prison responsible for carrying the sentence of death into effect.

(b) Insert the full names of the person under sentence, and his number, rank and unit.

(c) Set out the statement (but not the particulars) of the offence and the relevant section of the Armed Forces Act.Where there is more than one offence the statement of each must be set out.

(d) Insert hanging or shooting.

(e) Only required if sentence carried out in military custody.

(f) Insert the place where the sentence of death was carried into effect.

(g) Signature of military ofcer responsible for carrying the sentence of death into effect.

(h) Signature of mandatory witness, namely the ofcer nominated under regulation 7(3) (c) of the Armed Forces (Execution of Sentence of Death) Regulations.

THIRD SCHEDULE (r.

10 (1)) CertIfICate of medICal offICer (a) I,.

(b) a medical ofcer of the Armed Forces, hereby certify that I have this day examined the body of (c) upon whom sentence of death was this day carried into effect at.

(d), and that on examination I found that the said person was dead.

Dated this day of 19.

Rank (a) Only required if sentence carried out in military custody.

(b) Full names of medical ofcer who attended the execution, stating rank and unit.

(c) Full names of the person upon whom the sentence of death has www.kenyalaw.org CAP160.

199 Armed Forces [Rev.

2009 [Subsidiary] been carried out into effect, and his number, rank and unit.

(d) Insert the place where the sentence of death was carried into effect.

L.N.

14/1971.

THE ARMED FORCES (IMPRISONMENT) REGULATIONS Citation.

1.

These Regulations may be cited as the Armed Forces (Imprisonment) Regulations.

Interpretation.

2.

In these Regulations, unless the context otherwise requires - legal adviser means - (a) an advocate; or (b) if a service prison is outside Kenya, any person who, in the opinion of the ofcer in charge, has rights and duties in the country concerned similar to those of an advocate; (c) any clerk in the full-time service of an advocate or such a person, and authorized in writing by the advocate or person to interview a prisoner; (d) any ofcer representing or assisting a prisoner for the purposes of his defence or in connexion with his petition or appeal; ofcer in charge means the ofcer for the time being commanding the unit upon whose premises a service prison is situated; prisoner means any person who is serving a service sentence of imprisonment in a service prison; service prison means- (a) any premises set aside by one of the Commanders as a place of imprisonment for persons serving a service sentence of imprisonment; (b) any cell, room, hut, tent or other place which is situated within an area or place occupied by a unit normally commanded by an ofcer not below the rank of major or corresponding rank, and which is used for the connement of any such persons; staff means the persons for the time being charged with the administration of a service prison or with the custody of prisoners therein.

Service of sentences.

3.

(1) A service sentence of imprisonment which does not exceed forty- two days shall be served- (a) whenever practicable, in a service prison of the unit to which the www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 161 [Subsidiary] person under such sentence belongs or if such unit has no such prison, in a service prison established by some other unit; or (b) if there is no such service prison reasonably available, in a civil prison.

(2) A service sentence of imprisonment which exceeds forty-two days shall be served in a civil prison.

4.

(1) An entry in a unit Part II Orders notifying the imposition of a service Committal.

sentence of imprisonment not exceeding forty-two days upon any person shall be sufcient warrant for the connement of such person in a service prison.

(2) Where, under regulation 3, a service sentence of imprisonment is to be served in a civil prison, an order in the form set out in the First or Second Schedule, as may be appropriate, and signed by the commanding ofcer of the person under sentence, shall be sufcient warrant for such person to be detained in a civil prison.

5.

Subject to regulation 6, no person under a service sentence of Release from imprisonment, whether in service custody or in civil custody, shall be released custody.

from such custody otherwise than- (a) in accordance with an order of a court of competent jurisdiction; or (b) in accordance with an order in the form set out in the Third Schedule; or (c) on the expiration of his sentence less- (i) in the case of a sentence served in a service prison, remission allowed in accordance with these Regulations; or (ii) in the case of a sentence served in a civil prison, remission as allowed in accordance with any written law relating to remis- sion of the sentence of a convicted criminal prisoner in such prison.

Temporary release 6.

(1) The commanding ofcer of a person serving sentence of from service prison.

imprisonment in a service prison may authorize the temporary release of such person from such prison in any of the following circumstances- (a) in the case of the death or dangerous illness of a near relative of the prisoner, and the commanding ofcer is satised that the presence of the prisoner is desirable; (b) where damage has been done to any premises occupied by the next-of-kin of the prisoner and the commanding ofcer is satised that the presence of the prisoner is desirable; www.kenyalaw.org CAP162.

199 Armed Forces [Rev.

2009 [Subsidiary] (c) where the prisoner could make arrangements preliminary to or consequent upon the birth of his child, and the commanding ofcer is satised that the presence of the prisoner is desirable; (d) where the prisoner has requested facilities to enable him to marry a woman who is expecting a child; (e) where there are domestic difculties concerning the prisoner or his family, and the commanding ofcer is satised that the personal attendance of the prisoner is desirable.

(2) A temporary release under this regulation shall be subject to the following- (a) that the prisoner shall comply with any conditions laid down by the commanding ofcer and to be observed by, or in relation to, the prisoner during the period of his temporary release, including any conditions as to custody during the period of temporary release, and as to the place or places where the prisoner may or may not go during that period; (b) that, if the prisoner fails to comply with any such conditions, the period of his temporary release shall thereupon be terminated and it shall be the duty of the prisoner to return forthwith to the service prison.

(3) Any period of temporary release shall not count as part of the service sentence to be served.

Period of remission 7.

(1) The periods of remission which can be earned by good conduct in service prison.

by a prisoner shall be- (a) if the sentence does not exceed thirty-one days, nil; (b) if the sentence exceeds thirty-one days, one-third of the sentence except in a case where this would result in the said person serving less than thirty-one days, in which case the period of remission shall be such period as will reduce the sentence which he is required to serve to thirty-one days.

(2) For the purpose of calculating remission in accordance with paragraph (1), fractions of a day shall be ignored.

(3) A prisoner due to be released on a Sunday, Christmas Day or Good Friday shall be released on the previous day and the uncompleted day shall be deemed to be remitted.

Records of remission.

8.

(1) The ofcer in charge shall appoint an ofcer to be responsible for maintaining the record of remissions to which a prisoner may be entitled in accordance with regulation 7.

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199 163 [Subsidiary] (2) The record of remission shall show the entitlement to remission earned by each prisoner, and also the details of any loss of remission awarded in accordance with these Regulations.

9.

One days remission of the sentence of a prisoner shall be forfeited in Forfeiture of respect of each day on which the prisoner is unable to carry out work or training, remission.

which would otherwise be required of him, by reason of- (a) his sickness occasioned by his own misconduct; or (b) his undergoing a sentence of a civil court; or (c) his being in the lawful custody of any civil authority; or (d) an award by the ofcer in charge under regulation 34 for an offence under regulation 33.

10.

If, while a person is serving a sentence of imprisonment he is Effect on remission awarded a further sentence of imprisonment, remission shall be calculated under of subsequent regulation 7, taking into account the total period to which the said person was sentences of actually sentenced and which he would be required to serve.

imprisonment.

Corporal punishment.

11.

Corporal punishment shall not be inicted on prisoners.

12.

Any member of the staff may use such force against a prisoner as Use of force.

is reasonably necessary to make the prisoner obey any lawful order which he refuses to obey or in order to maintain discipline.

13.

(1) No room shall be used as, or as part of, a service prison unless a Requirements of service prisons.

medical ofcer has certied that its size, lighting, heating, ventilation and ttings are adequate for health, and that it allows any prisoner therein to communicate at any time with a member of the staff, and any certicate granted in relation to a room shall state the maximum number of prisoners who may be conned therein.

(2) The size of rooms intended for occupation by prisoners shall be such as to provide at least six hundred cubic feet capacity for each such prisoner, unless in any particular case, having regard to the exigencies of the service, the ofcer in charge authorizes temporary accommodation for prisoners in accommodation of smaller capacity.

(3) Two prisoners shall not be conned together in one room, the connement must be solitary or of at least three prisoners in the room.

(4) A prisoner shall not be accommodated in the same room or place as a person in arrest.

14.

(1) During the whole of his sentence a prisoner shall be engaged in Work.

work or training for not more than nine nor less than six hours a day excluding times for meals.

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199 Armed Forces [Rev.

2009 [Subsidiary] (2) Nothing in this regulation shall require that a prisoner shall be engaged in work or training at any time when he is- (a) in close connement; or (b) undergoing restricted diets as a punishment; or (c) excused work or training on medical grounds on the advice of a medical ofcer; or (d) excused work by the ofcer in charge or engaged in some other activity authorized by or under these Regulations.

Days of rest.

15.

Sunday shall be a day of rest and no prisoner shall be engaged on work or training except work which is necessary for the cleaning of the service prison: Provided that a prisoner may be required to carry out any type of work or training on a Sunday if, in the opinion of the ofcer in charge, it is in the interests of the service for him so to do.

Work in association.

16.

(1) Whenever possible a prisoner shall work in association with other prisoners unless it appears to the ofcer in charge that it is- (a) not in the interest of such prisoner; (b) not in the interest of good order and discipline.

(2) When a prisoner is not permitted to work in association with other prisoners, the ofcer in charge may arrange for that prisoner to work in a room or place apart from other prisoners.

(3) In deciding whether a prisoner shall be required to work apart from other prisoners under the provisions of paragraph (1), and whether such a person ought to resume work in association with other prisoners, the ofcer in charge shall take into consideration any advice which he may be given by a medical ofcer.

No work for private 17.

A prisoner shall not be employed directly or indirectly for the private benet or advantage of any person, nor in any way contrary to these Regulations benet.

or the order of the ofcer in charge.

Rations.

18.

(1) The food provided for prisoners shall be the same as that provided for soldiers in the unit except when the prisoner is undergoing restricted diet as a punishment.

(2) The ofcer in charge shall ensure that every prisoner receives the rations to which he is entitled.

Tobacco.

19.

A prisoner shall not be permitted to smoke nor to retain in his possession any tobacco, cigarettes, matches or lighter, or any naked light for www.kenyalaw.org Rev.

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199 165 the purpose of lighting tobacco or cigarettes.

[Subsidiary] 20.

(1) A prisoner shall be allowed to write letters as follows- Correspondence.

(a) on rst admission, one letter; and (b) in every week of his sentence following the week in which he is rst admitted, one letter.

(2) Writing paper, envelopes and other materials required to enable prisoners to write letters shall be provided by themselves, and retained by the staff, and a prisoner shall be allowed to use his writing materials during the hours permitted by the ofcer in charge for leisure.

(3) A prisoner may receive- (a) any number of letters; (b) books, newspapers, journals and periodicals at the discretion of the ofcer in charge.

21.

(1) A parcel addressed to a prisoner shall be opened and examined Parcels.

by an ofcer in the presence of the prisoner and any article which the prisoner is not authorized to receive shall be retained in safe keeping by the ofcer in charge and handed to the prisoner on nal release: Provided that perishable articles may be disposed of in accordance with the directions of the ofcer in charge by returning them to the sender or otherwise.

(2) A prisoner may with the consent and at the discretion of the ofcer in charge receive toilet requirements and other articles.

22.

(1) The ofcer in charge or any ofcer deputed by him may scrutinize Censorship.

letters written by or addressed to a prisoner.

(2) The ofcer in charge may withhold from a prisoner the whole or any part of a letter addressed to him, but he shall communicate to him any part of the letter which is unobjectionable.

(3) The ofcer in charge may withhold a letter written by a prisoner, but in such case he shall give the prisoner an opportunity of writing in its place another letter which does not contain the material to which the ofcer in charge objects.

(4) If any letter contains a complaint relating to the service prison or the treatment of the prisoner, the ofcer in charge shall draw the attention of the prisoner to his rights as to complaints.

(5) In any case where the ofcer in charge withholds a letter written by or addressed to a prisoner he shall record the fact and his reasons for so acting.

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199 Armed Forces [Rev.

2009 [Subsidiary] Visits.

23.

(1) A prisoner may receive visits from his relatives and friends at the discretion of the ofcer in charge and the visits shall take place at times and places to be determined by that ofcer.

(2) Any visit authorized under this regulation shall be within the sight and hearing of a member of the staff not below the rank of sergeant.

Visit by legal 24.

(1) The ofcer in charge shall provide reasonable facilities for a advisers.

prisoner to be visited by his legal adviser.

(2) Any visit authorized under this rule shall be within the sight of the ofcer in charge or a member of the staff.

Medical examination.

25.

The ofcer in charge shall ensure that every prisoner who is- (a) in close connement; or (b) subject to any form of mechanical restraint; or (c) undergoing restricted diet as a punishment; or (d) sick or complains of sickness, shall be seen by a medical ofcer at least once every day, and the medical ofcer shall also see daily every prisoner to whom his attention is especially directed by the ofcer in charge.

Appeals.

26.

The manner in which a prisoner who has appealed, or desires to appeal, against his conviction by court martial may be taken to, kept in custody at and brought back from any place where he is entitled to be present for the purposes of Part IX of the Act, or any place to which the High Court or a judge may order him to be taken for the purposes of any proceedings of the Court, shall be as follows- (a) he may be taken to, kept in custody at or brought back from any such place in service or civil custody; (b) he may be kept in such custody at any such place in any manner ordered by the High Court or a judge thereof: Provided that he shall not be kept in a civil prison or in a police station for periods exceeding seven days at any one time.

Rights as to appeal to 27.

(1) The ofcer in charge shall bring to the notice of prisoners their be notied.

rights to petition or appeal.

(2) The ofcer in charge shall permit a prisoner who intends to petition or appeal, or whose appeal is pending, for the purposes of such petition or appeal, to receive visitors, to be provided with reasonable quantities of writing materials, to write and receive letters and to prepare and hand personally, or to send by post, to his legal adviser condential written communications as www.kenyalaw.org Rev.

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199 167 instructions in connexion with the petition or appeal.

[Subsidiary] (3) For the purpose of a petition or appeal a prisoner may receive a visit from a medical practitioner selected by him or on his behalf by relatives or friends.

28.

(1) On admission to a service prison, a prisoner shall be searched in Searching persons accordance with regulation 29.

under sentence.

(2) The ofcer in charge may order that a prisoner shall be searched at any time while he is serving his sentence.

29.

The following conditions shall be observed in relation to the search Condition of search.

of a prisoner- (a) every search shall take place in the presence of at least two members of the staff; (b) no other prisoner shall be present at the search.

30.

The ofcer in charge of the service prison from which a prisoner Duration of sentence escapes shall be the prescribed authority for the purposes of the proviso to on persons who subsection (1) of section 132 of the Act.

escape.

31.

If a prisoner dies the ofcer in charge shall- Deaths.

(a) immediately report the matter to the civil police in whose area the service prison is situated; and (b) in the event of an inquiry into the death of such prisoner not being Supra.

held by any civil authority, arrange for a board of inquiry to be convened in accordance with the Armed Forces (Board of Inquiry) Regulations.

32.

A prisoner shall be guilty of an offence if he- Offence against discipline.

(a) treats with disrespect any member of the staff of a service prison, any visitor thereto, or any person employed therein; (b) is idle, careless or negligent; (c) behaves irreverently at divine service; (d) uses any abusive, insolent, threatening or any other improper language; (e) is indecent in any act or gesture; (f) communicates with any other prisoner without authority; (g) leaves his room or place of work or other appointed place without permission; www.kenyalaw.org CAP168.

199 Armed Forces [Rev.

2009 [Subsidiary] (h) commits any nuisance; (i) has in his room or possession any unauthorized articles, or attempts to obtain such articles; (j) gives to any person any unauthorized article; (k) makes repeated and groundless complaints; (l) fails to observe or comply with any conditions as to temporary release; (m) attempts to commit any of the offences referred to in this regulation.

Procedure for dealing 33.

A prisoner who commits an offence under the Act or under these with offences.

Regulations shall be dealt with- (a) by the ofcer in charge; or (b) in accordance with the provisions of section 82 of the Act.

Punishment which 34.

(1) An ofcer in charge may award any of the punishments set out may be awarded by in paragraph (2) to a prisoner who has been found by him to have committed an ofcer in charge.

any offence under these Regulations.

(2) The punishments referred to in paragraph (1) are- (a) close connement for a period not exceeding fourteen consecutive days in any one period; (b) restricted diet for a period not exceeding three consecutive days in any one period; (c) forfeiture of remission of sentence for a period not exceeding eleven days; (d) deprivation of library books and periodicals; (e) admonishment; (f) extra military instruction not exceeding three periods of forty-ve minutes each.

Restricted diet.

35.

(1) Restricted diet shall consist of one-half ration per day with unrestricted water.

(2) On the days on which a prisoner is undergoing restricted diet he shall not attend parades, nor shall he be required to undertake any task of labour, but he may be required to carry out light work in his room.

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199 169 (3) A prisoner who is undergoing restricted diet shall not be required to [Subsidiary] undergo any further period on such diet in respect of any other offence until an interval has elapsed equal to the period of restricted diet already undergone.

(4) Every prisoner undergoing restricted diet shall be visited every day by the commanding ofcer in charge, or by an ofcer appointed by the ofcer in charge, and by a medical ofcer.

36.

(1) No prisoner shall be placed in close connement unless he has Close connement.

been certied by a medical ofcer as t to undergo such punishment.

(2) A prisoner in close connement shall not be permitted to attend divine service and, except on the recommendation of a medical ofcer, shall not be permitted any exercise.

(3) A prisoner in close connement shall not be deprived of his room furniture, books or periodicals, nor be subjected to any form of discipline which has not been ordered in accordance with these Regulations.

(4) A prisoner in close connement shall be visited at least once every day by the ofcer in charge or an ofcer nominated by him, and by a medical ofcer, and in addition at least once every three hours by a member of the staff.

37.

(1) In this regulation- Mechanical restraint.

handcuffs means handcuffs of gure-of-eight, swivel or curb-chain type, not exceeding, for the pair, seven hundred grams in weight; restraint order means an order issued under paragraph (4).

(2) Save as provided by regulation 39, no prisoner shall be placed in handcuffs or any other form of mechanical restraint, or be in any manner bound, fettered or otherwise restricted in his movements, as a punishment.

(3) An ofcer in charge may order the use of handcuffs for the purpose of ensuring the safe custody of a prisoner during his removal from one place to another.

(4) If it appears to an ofcer in charge that the use of handcuffs is necessary on a prisoner in order to prevent him from injuring himself or others, or destroying property, or otherwise creating a disturbance, he may issue a written order that such prisoner be placed in handcuffs.

(5) A restraint order shall- (a) specify the date and hour when the handcuffs are to be applied; (b) specify the period, not exceeding forty-eight hours, during which the prisoner is to remain in handcuffs; (c) state whether the handcuffs are to be applied with the hands of the www.kenyalaw.org CAP170.

199 Armed Forces [Rev.

2009 [Subsidiary] prisoner placed to the front or to the rear of the body.

(6) Immediately upon making a restraint order the ofcer in charge shall give a copy thereof to a medical ofcer who shall thereupon examine the prisoner and inform the ofcer in charge if, in his opinion, there is any objection on medical grounds to the use of handcuffs on the prisoner or whether the restraint order should be modied in any manner, and the ofcer in charge shall revoke or modify the restraint order in accordance with the opinion of the medical ofcer.

(7) Where a restraint order states that handcuffs are to be applied with the hands of the prisoner to the rear of the body, they shall be moved to the front during meals and for sleeping.

(8) Whenever handcuffs are applied to or removed from a prisoner, an ofcer or senior member of the staff shall be present and a record shall be made of every person present at that time.

Canvas suit.

38.

(1) Where a prisoner destroys or attempts to destroy his clothing, or refuses to wear uniform, the ofcer in charge may order that the prisoner shall wear a suit, consisting of frock and trousers made of canvas sail-cloth, not exceeding ve and one-half kilograms in weight.

(2) The ofcer in charge shall record every order made under this regulation, the date from which the prisoner is required to wear a canvas suit and the date on which he authorizes its removal.

Religious books and 39.

(1) An ofcer in charge shall, so far as practicable, make available chaplains.

for the use of every prisoner such books of religious observance or instruction as are recognized for the use of the religious denomination of the prisoner.

(2) An ofcer in charge shall provide a book in which chaplains may record any matters which they wish to bring to his notice.

(3) An ofcer in charge may, at his discretion, afford facilities to chaplains to have access to prisoners for the purpose of giving them religious instruction, at times approved by him.

Visit by chaplain.

40.

(1) A chaplain of the same religious denomination as a prisoner may, at the discretion of the ofcer in charge, visit the prisoner as soon after his rst admission to a service prison as possible, and thereafter from time to time at proper and reasonable times, and again shortly before his release; and where there is no chaplain of the same denomination as the prisoner the ofcer in charge may arrange for the prisoner to be visited by a minister of his own denomination if the prisoner so wishes and it is practicable to make the arrangements.

(2) A prisoner shall be informed of the provisions of paragraph (1) as soon as possible after his rst admission to the service prison.

(3) In appropriate cases a chaplain or minister shall ofciate at the burial of a prisoner who dies while under sentence.

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199 171 [Subsidiary] 41.

A prisoner unless undergoing punishment of close connement may Attendance at divine attend divine service of his religious denomination if in the opinion of the service.

ofcer in charge it is practical for him so to do, having regard to his behaviour and to the location of the place of worship in relation to the location of the service prison.

42.

An ofcer in charge shall provide educational training for prisoners Educational training.

whenever practicable.

43.

No person shall without the authority of the ofcer in charge bring Prohibition of liquor, or attempt to bring into a service prison or give or attempt to give to a prisoner, tobacco.

any spirituous or fermented liquor or any tobacco, or place any such liquor or tobacco in any place with intent that it shall come into the possession of a prisoner, nor shall any member of the staff allow any such liquor or tobacco to be sold or used in the service prison.

44.

No person shall, without lawful authority, convey or attempt to convey Communication with any letter or any other thing into or out of a service prison or to a prisoner, or prisoners.

place it anywhere outside the service prison with intent that it shall come into the possession of a prisoner.

45.

(1) No unauthorized person shall enter a service prison, or make any Unauthorized person sketch, or take any photograph of or communicate with any prisoner, and no entry of service person shall remain in a service prison after being requested to leave by the prison.

ofcer in charge or any person acting under his authority.

(2) The ofcer in charge may grant permission to any person to enter a service prison subject to any condition, which he may consider necessary.

(3) The ofcer in charge may order the removal from a service prison of any person who, without authority enters therein or contravenes the provisions of paragraphs (1) and (2).

46.

Any person who, not being a person subject to the Act, contravenes Penalty.

any of the provisions of regulation 43, 44 or 45 shall be guilty of an offence and liable to a ne not exceeding three thousand shillings, or to imprisonment for a period not exceeding three months, or to both such ne and imprisonment.

FIRST SCHEDULE (r.

4 (2)) order for the CommIttal of a member of the armed forCes to a CIVIl prIson on an aWard of ImprIsonment by hIs CommandIng offICer To the Ofcer in Charge of.(a).

Whereas No.

.

Rank.

Name.

of the.Unit was on the.

day of .,19., awarded imprisonment for a period of .days, by his commanding ofcer for the offence(s) of.

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199 Armed Forces [Rev.

2009 [Subsidiary].

.(b).

Now, therefore, in pursuance of the Armed Forces Act I hereby order you to receive the said person into your custody and to retain him to undergo his sentence according to law and for so doing this shall be your warrant.

Signed at.this.

day of ., 19.

(Signature).(c).

Rank and appointment.

_ (a) Insert the name and address of the prison.

(b) Set out the statement (not the particulars) of the offence and the relevant sections of the Armed Forces Act.

Where there is more than one offence, the statement of each must be set out.

(c) This form must be signed by the commanding ofcer of the person concerned.

SECOND SCHEDULE (r.

4 (2)) order for the CommIttal of a member of the armed forCes to a CIVIl prIson on sentenCe of ImprIsonment by a Court martIal To the Ofcer in Charge of.

(a).

Whereas No.

.

Rank.

was convicted by a Court Martial held at.

of the offence(s) of.

.

.

.

(b) and, by a sentence passed on the.

day of ., 19., sentenced to imprisonment for a term of.

(c) commencing on the said day, which sentence has been duly conrmed in accordance with the provisions of the Armed Forces Act.

.

(d).

Now, therefore, in pursuance of the Armed Forces Act I hereby order you to receive the said person into your custody and to retain him to undergo his sentence according to law and for so doing this shall be your warrant.

Signed at.

this.

day of ., 19.

(Signature).

(c).

Rank and appointment.

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199 173 (a) Insert the name and address of the prison.

[Subsidiary] (b) Here set out the statement (not the particulars) of the offence and the relevant sections of the Armed Forces Act.

Where there is more than one offence the statement of each must be set out.

(c) Where the original sentence was death and has been commuted to imprisonment, for the words in brackets substitute the words suffer death which sentence has duly been conrmed in accordance with the provisions of the Armed Forces Act but has been commuted into imprisonment for a term of.

.

(d) If any part of the sentence has been remitted on conrmation insert with a remission of.

.

(e) The committal form must be signed by the commanding ofcer for the time being of the person concerned.

THIRD SCHEDULE (r.

5) order for the release op a person undergoIng sentenCe of ImprIsonment under the armed forCes aCt To the Ofcer in Charge of.

(a).

Where No.

.

Rank.

(b).

Name.

of the.

(b).

Unit is now in your custody undergoing a sentence of imprisonment awarded by his commanding ofcer _ (b).

passed by court martial Now, therefore, in pursuance of the powers conferred by Part VIII of the Armed Forces Act, I do hereby order you to release the said person from custody.

Signed at.

this.

day of ., 19.

(Signature).

(c).

Rank and appointment.

_ (a) Insert the name and address of the civil prison or service prison.

(b) Delete as necessary.

(c) This form must be signed by the reviewing ofcer or reconsidering authority.

In the case of a person serving a sentence in a service prison this order must be signed by the ofcer who awarded the original award of imprisonment.

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199 Armed Forces [Rev.

2009 [Subsidiary] Rules under section 228 THE ARMED FORCES RULES OF PROCEDURE L.N.

249/1969, L.N.

305/ 1986.

Arrangement of Rules prelImInary Rule 1Citation.

2Denitions.

arrest and aVoIdanCe of delay 3Avoidance of delay by commanding ofcer in investigating charges.

4Report to higher authority where no investigation commenced within forty-eight hours of arrest.

5Eight-day delay report.

6Arrest not to exceed 72 days without permission from higher authority.

InVestIgatIon of Charges by CommandIng offICer 7Methods of investigating charge.

8Hearing of evidence by commanding ofcer.

9Abstract of evidence.

10Investigation before summary dealing by commanding ofcer.

11Dismissal of charge by commanding ofcer.

12 Reference of charge to higher authority.

preparatIon of Charge-sheets and framIng of Charges 13Charge-sheets.

14Charges.

15Joint charges.

16Construction of charge-sheets and charges.

aCtIon by hIgher authorIty on reCeIpt of Charge 17Action by higher authority on receipt of charge.

InVestIgatIon of, and summary dealIngs WIth, Charges by approprIate superIor authorIty 18Documents to be given to ofcers, servicemen and civilians dealt with summarily.

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199 175 [Subsidiary] Rule 19Investigations of and summary dealing with charges against ofcers, servicemen and civilians.

20Alternative courses open to appropriate superior authority.

ConVenIng of Courts martIal 21Duties of convening ofcer when convening court martial.

22Appointment of presiding ofcer and members.

23Ofcers under instruction.

24Preparation of defence.

assembly and sWearIng of Court 25Preliminary matters to be considered by court and beginning of trial.

26Objections to court.

27Swearing of court.

28Swearing of judge advocate.

29Swearing of ofcers under instruction.

30Appointment and swearing of, and objections to, interpreters and shorthand writers.

31No right of objection to judge advocate, prosecutor or ofcer under instruction.

32Order of trial.

33Oaths and solemn afrmations.

arraIgnment of aCCused 34Arraignment of accused.

35Plea to jurisdiction of court.

36Objection to charge.

37Plea in bar of trial.

38Application by accused at joint trial to be tried separately.

39Application by accused to have charges tried separately.

40Plea to charge.

41Acceptance of plea of guilty.

42Pleas on alternative charges.

proCedure after reCordIng fIndIng of guIlty 43Order of trial where pleas of guilty and not guilty.

44Procedure on nding of guilty after plea of guilty.

Change of plea 45change of plea.

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199 Armed Forces [Rev.

2009 [Subsidiary] proCedure on pleas of not guIlty Rule 46Application for adjournment of trial.

47Case for prosecution.

48Calling of witnesses whose evidence not contained in abstract of evidence.

49Notice to accused that witness will not be called by prosecutor.

CallIng and eXamInatIon of WItnesses 50Swearing of witnesses.

51Exclusion of witnesses from court.

52Examination of witnesses.

53Examination of witnesses by court.

54Reading back of evidence to witnesses.

55Calling of witnesses by court and recalling of witnesses.

56Statutory declarations.

submIssIon of no Case to ansWer and stoppIng of Case 57Submission of no case to answer and power of court to stop a case.

Case for the defenCe 58Explanation to accused of rights when making defence.

59Evidence for defence.

60Evidence in rebuttal.

61Closing addresses.

summIng-up by Judge adVoCate 62Summing-up by judge advocate.

delIberatIon on, and announCement of, fIndIng on Charge 63Deliberation on nding on charge.

64Expression of opinions on, and form of, nding.

65Announcement of nding.

proCedure after announCement of fIndIng 66Completion of procedure on plea of guilty before deliberation on sentence.

67Trial of charges on other charge-sheets before deliberation on sentence.

68Release of accused.

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199 177 [Subsidiary] Rule 69Accuseds record and plea in mitigation.

70Request by accused for other offences to be taken into consideration.

delIberatIon on sentenCe 71Persons entitled to be present during deliberation on sentence.

72Sentence and recommendation to mercy.

73Postponement of deliberation on sentence.

announCement of sentenCe and ConClusIon of trIal 74Announcement of sentence and conclusion of trial.

general dutIes of presIdIng offICer, proseCutor and defendIng offICer or Counsel 75General duties of presiding ofcer.

76General duties of prosecutor and defending ofcer of counsel.

77Counsel.

poWers and dutIes of Judge adVoCate 78General duties of judge advocate.

79Judge advocate sitting alone.

WIthdraWal and amendment of Charge-sheets and Charges 80Withdrawal of charge-sheets and charges.

81Amendment of charge-sheets and charges by court.

82Amendment of charges by convening ofcer.

sIttIngs and adJournment of Court 83Sittings of court.

84Adjournment.

85View by court.

86Absence of presiding ofcer, members or judge advocate.

InsanIty 87Insanity.

InterVIeWIng and attendanCe of WItnesses 88Interviewing of witnesses.

89Procuring attendance of witnesses.

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199 Armed Forces [Rev.

2009 [Subsidiary] reCord of proCeedIngs Rule 90Record of proceedings.

91Exhibits.

92Custody and inspection of record of proceedings during trial.

ConfIrmatIon, reVIsIon and promulgatIon 93Conrmation and promulgation.

94Revision.

loss of proCeedIngs 95Loss of original record of proceedings before conrmation.

96loss of original record of proceedings after conrmation.

length of Custody of reCord of proCeedIngs, and Cost of CopIes of proCeedIngs 97Custody of record of proceedings after conrmation.

98Cost of copies of record of proceedings.

petItIons 99Petitions.

mIsCellaneous 100Notice requiring oral evidence in place of statutory declaration.

101Exceptions from Rules on account of the exigencies of service.

102Exceptions from Rules in interests of security.

103Procedure incase of illiteracy or incapacity.

104Deviations from the forms in the Schedules.

105Cases not covered by Rules.

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199 179 [Subsidiary] prelImInary 1.

These Rules may be cited as the Armed Forces Rules of Procedure.

Citation.

2.

In these Rules- Denition.

convening a fresh court includes dissolving the existing court; member, in relation to a court martial, does not include the presiding ofcer; sexual offence means and offence under section 69 of the Act where the corresponding civil offence is an offence under Chapter XV of the Penal Cap.

63.

Code, or an attempt to commit such an offence, and shall include any offence of an indecent or unnatural kind under section 64 of the Act, or any attempt to commit such offence under section 66 of the Act, or an offence of an indecent kind under section 68 of the Act; special nding, in relation to (a) section 96 of the Act, means a nding which a court martial may make in accordance with that section; (b) section 101 of the Act, means a nding in accordance with subsection (1) of that section that the accused is guilty of the act or omission charged but was insane when he did the act or made the omission; (c) rule 64 (3), means a nding that the accused is guilty of the charge subject to the exception or variation specied in the ndings.

arrest and aVoIdanCe of delay 3.

When a person is detained by service authority in arrest his commanding Avoidance of delay by a commanding ofcer shall, unless it is impracticable, within forty-eight hours of becoming aware that he is so detained have such person brought before him, inform him ofcer in of the charge against him and begin to investigate it.

investigating charges.

4.

Every case of a person being detained by service authority in arrest Report to higher beyond the period of forty-eight hours referred to in rule 3 without such authority where investigation having begun and the reason therefor shall be reported by his no investigation commenced within commanding ofcer to higher authority.

forty-eight hours of arrest.

5.

The report required by section 72 (2) of the Act with regard to the Eight-day delay necessity for further delay in bringing an accused to trial shall be in Form I set report.

out in the First Schedule and shall be signed by his commanding ofcer; and the report shall be sent to the ofcer who would be responsible for convening a court martial for the trial of the accused.

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199 Armed Forces [Rev.

2009 [Subsidiary] Arrest not to exceed 6.

An accused shall not be held in arrest for more than seventy-two 72 days without consecutive days without a court martial being convened for his trial, unless permission from the ofcer who would be responsible for convening the court martial directs higher authority.

in writing that he shall not be released from arrest; and when giving such a direction the ofcer shall state his reasons for giving it.

InVestIgatIon of Charges by CommandIng offICer Methods of 7.

(1) Subject to paragraphs (2) and (3), when a commanding ofcer investigating charge.

investigates a charge, he shall rst read and, if necessary, explain the charge to the accused and shall then (a) hear the evidence himself in accordance with rule 8; or (b) cause the evidence to be reduced to writing in the form of an abstract of evidence made in accordance with rule 9, and read and consider it: Provided that (i) notwithstanding that he has heard all or part of the evidence himself, he may cause the evidence to be reduced to writing; (ii) after the evidence has been reduced to writing and he has considered it, he may himself hear evidence in accordance with rule 8; and (iii) before he submits to higher authority a charge against an ofcer or against a civilian to whom Parts IV to X of the Act apply by virtue of section 9 of the Act, or remands a serviceman for trial by court martial, he shall cause the evidence to be reduced to writing.

(2) Where the evidence taken in accordance with paragraph (1) discloses an offence other than the offence of which is the subject of the investigation, a new charge alleging that offence may be preferred against the accused in addition to, or in substitution for, the original charge and the investigation of the original charge may be treated, for the purposes of these Rules, as the investigation of the added or substituted charge.

(3) Where a civilian to whom Parts IV to X of the Act apply by virtue of section 9 of the Act is charged with an offence with which an appropriate superior authority can deal summarily, it shall not be necessary for his commanding ofcer to read the charge to the accused; but it shall be a sufcient compliance with this rule if his commanding ofcer causes to be delivered to the accused a copy of the charge-sheet and of the abstract of evidence and considers them together with any statement made by the accused under rule 9 (3).

Hearing of evidence 8.

When a commanding ofcer investigates a charge by hearing the by commanding evidence himself- ofcer.

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199 181 (a) each prosecution witness shall give his evidence orally in the [Subsidiary] presence of the accused, or the commanding ofcer shall read to be accused a written statement made by the witness: provided that a written statement of a prosecution witness shall not be used if the accused requires that the witness shall give his evidence orally; (b) the accused shall be allowed to cross-examine any prosecution witness; (c) the accused may, on his own behalf, give evidence on oath or may make a statement without being sworn; (d) the accused may call witnesses in his defence, who shall give their evidence orally and in his presence; (e) the evidence shall not be given on oath unless the commanding ofcer so directs or the accused so demands; (f) if the evidence is given on oath the commanding ofcer shall, subject to the accuseds right to make a statement without being sworn, administer the oath to each witness and to any interpreter in accordance with rule 33; (g) when a commanding ofcer awards the punishment of forfeiture of seniority of rank that award shall be in the appropriate form set out in the Fifth Schedule.

9.

(1) An abstract of evidence shall be in Form II in the First Schedule Abstract of evidence.

and shall be made in the following way (a) it shall be made by the commanding ofcer or by another ofcer on the direction of the commanding ofcer; (b) the accused shall not be present while the abstract of evidence is being made; (c) it shall consist of signed statements by such witnesses as are necessary to prove the charge: Provided that if, in the case of any witness, a signed statement is not readily procurable, a prcis of the evidence to be given by that witness may be included instead of a signed statement; (d) an oath shall not be administered to a witness making a statement for inclusion in an abstract of evidence, but use may be made, where necessary, of sworn statements which are already in existence.

(2) When an abstract of evidence has been made in accordance with paragraph (1) a copy of it shall be handed to the accused and he shall then be cautioned in the following terms www.kenyalaw.org CAP182.

199 Armed Forces [Rev.

2009 [Subsidiary] This is a copy of the abstract of evidence in your case.

You are not obliged to say anything with regard to it unless you wish to do so, but you should read it and when you have read it, if you wish to say anything, what you say will be taken down in writing and may be given in evidence.

(3) Any statement made by the accused after he has read the abstract of evidence shall be taken down in writing and he shall be asked to sign it.

(4) The accuseds statement, and a certicate in Form III set out in the First Schedule by the person who recorded the statement stating that the accused was duly cautioned in accordance with this rule shall be attached to the abstract of evidence and shall thereafter form part of it.

Investigation before 10.

Before a commanding ofcer deals summarily with a charge after summary dealing by the evidence has been reduced to writing- commanding ofcer.

(a) any prosecution witness who has not given his evidence orally shall do so if the accused requires it; and (b) the commanding ofcer shall give the accused a further opportunity to give evidence on oath or to make a statement without being sworn and to call witnesses in his defence.

Dismissal of charge 11.

(1) A commanding ofcer may dismiss a charge at any time during by commanding his investigation if he is of the opinion that it ought not to be proceeded with ofcer.

further.

(2) If in the course of dealing summarily with a charge a commanding ofcer determines that it is desirable that the charge should be tried by court martial, he may refer the charge to higher authority in accordance with the rule 12.

(3) After a commanding ofcer has referred a charge to higher authority in accordance with rule 12 he shall not dismiss it unless it has been referred back to him with a direction that it shall be dismissed in accordance with section 81 (3) or section 82 (2) (b) of the Act.

Reference of charge 12.

When a commanding ofcer submits to higher authority a charge to higher authority.

against an ofcer, or against a civilian to whom Parts IV to X of the Act apply by virtue of section 9 of the Act, or has remanded a serviceman for trial by court martial, he shall send to higher authority- (a) a copy of the charge-sheet on which the accused is held; (b) a draft charge-sheet containing the charges upon which the commanding ofcer considers that the accused should be dealt with summarily or tried by court martial; (c) the abstract of evidence; (d) a statement of the character and service record of the accused; and www.kenyalaw.org Rev.

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199 183 [Subsidiary] (e) a recommendation as to how the charge should be proceeded with.

preparatIon of Charge-sheets and framIng of Charges 13.

(1) A charge-sheet shall contain the whole of the issue or issues to Charge-sheets.

be tried at one time, and may contain more than one charge if the charges are founded on the same facts or form or are part of a series of offences of the same or similar character: Provided that charges under paragraph (a) of section 31 (1), paragraph (a) of section 32, paragraphs (a) and (b) of section 42 (where the charge is connected with a charge under either of the before-mentioned paragraphs) or section 51 of the Act may be included in any charge-sheet, notwithstanding that other charges in that charge-sheet are not founded on the same facts and do not form or are not part of a series of offences of the same or similar character.

(2) Every charge-sheet shall in its layout follow the appropriate illustration given in Form III in the Second Schedule.

(3) The commencement of each charge-sheet shall be in the appropriate paragraph of Form I set out in the Second Schedule, and shall state the number, rank, name and unit of the accused and show by the description of the accused or directly by an express averment that he is subject to the Act or otherwise liable to trial by court martial.

14.

(1) Each charge shall state one offence only.

Charges.

(2) Offences may be charged in the alternative in separate charges, but in no case shall they be charged in the alternative in the same charge; and when charges are laid in the alternative they shall be set out in order of gravity commencing with the most serious.

(3) Each charge shall consist of two parts, namely (a) the statement of the offence; and (b) the particulars of the act, neglect or omission constituting the offence.

(4) The statement of an offence, if it is not a civil offence, shall be as set out in the appropriate paragraph of Form III in the Second Schedule, and if it is a civil offence in such words as sufciently describe that offence.

(5) The particulars shall state (a) such circumstances respecting the alleged offence as will enable the accused to know every act, neglect or omission which it is intended to prove against him as constituting the offence; www.kenyalaw.org CAP184.

199 Armed Forces [Rev.

2009 [Subsidiary] (b) when the offence charged is one which can be committed either in circumstances involving a higher degree of punishment or in circumstances involving a less degree of punishment, facts which it is intended to prove as rendering the accused liable to the higher degree of punishment if convicted; and (c) any additional facts which it is intended to prove as rendering the accused liable to the punishment of stoppages if convicted.

Joint charges.

15.

(1) Any number of accused may be charged in the same charge-sheet with offences alleged to have been committed by them separately if the acts on which the charges are founded are so connected that it is in the interests of justice that they be tried together.

(2) Any number of accused may be charged jointly in one charge for an offence committed by them jointly; and where so charged any one or more accused may at the same time be charged in the same charge-sheet with any other offence alleged to have been committed by him or them individually or jointly, provided such charges could, if the accused to whom they relate had been tried separately, have been included under rule 13 (1) in the same charge- sheet as the other charges against him.

Construction of 16.

In the construction of a charge-sheet or charge there shall be charge-sheets and presumed in favour of supporting it every proposition which may reasonably charges.

be presumed to be impliedly included, though not expressed therein, and the statement of the offence and the particulars of the offence shall be read and construed together.

aCtIon by hIgher authorIty on reCeIpt of Charge Action by higher 17.

When a higher authority receives a charge against an accused he shall, authority on receipt if he does not refer it back to the commanding ofcer or deal summarily with it of charge.

himself or himself convene a court martial to try the accused, refer the charge either to an appropriate superior authority in order that that authority may deal summarily with it or to the ofcer who would be responsible for convening the appropriate court martial to try the accused, and shall, when he so refers the charge, send to the appropriate superior authority or other ofcer concerned the documents mentioned in rule 12 together with his own recommendation as to how the case should be proceeded with.

InVestIgatIon of, and summary dealIng WIth, Charges by an approprIate superIor authorIty Documents to be 18.

An appropriate superior authority shall ensure before investigating and dealing summarily with a charge that the accused is given, not less than given to ofcers, twenty-four hours before the charge is so investigated and dealt with, a copy servicemen and of the charge-sheet containing the charge upon which he will be so dealt with civilians dealt with and a copy of the abstract of evidence.

summarily.

Investigations of and 19.

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2009] Armed Forces CAP.

199 185 [Subsidiary] (a) he shall rst read the charge to the accused; with charges against ofcers, servicemen (b) the witnesses against the accused need not give their evidence orally and civilians.

if the accused has so agreed in writing, but if the accused has not so agreed they shall give their evidence orally in his presence and he shall be allowed to cross-examine them; (c) if the witnesses against the accused do not give their evidence orally the appropriate superior authority shall read the abstract of evidence to the accused if he so requires; (d) the accused in his defence may adduce evidence as to the facts of the case and as to his character and in mitigation of punishment; (e) the accused himself may give evidence on oath, make a statement without being sworn or hand in a written statement; (f) each witness who gives evidence shall give it on oath and the oath shall be administered by the appropriate superior authority to each witness and to any interpreter in accordance with rule 33; (g) when an appropriate superior authority awards the punishment of forfeiture of seniority of rank that award shall be in the appropriate form set out in the Fifth Schedule; (h) a record shall be made of the proceedings in accordance with the form set out in the Third Schedule.

20.

An appropriate superior authority shall, if an accused elects to be Alternative courses tried by court martial or the appropriate superior authority in the course of open to appropriate investigating, or whilst dealing summarily with, a charge determines that it superior authority.

is desirable that the charge should be tried by court martial, either himself convene the court martial or refer the charge to higher authority in accordance with rule 17.

ConVenIng of Courts martIal 21.

When an ofcer convenes a court martial he shall- Duties of convening ofcer when (a) issue a convening order in Form I in the Fourth Schedule; convening court martial.

(b) direct upon what charges the accused is to be tried and ensure that the accused has been remanded for trial by court martial upon those charges either by his commanding ofcer or by the appropriate superior authority who has investigated them; (c) if he is of the opinion that charges should be put in separate charge- sheets, so direct and direct the order in which they are to be tried; (d) direct, if there is more than one accused, whether the accused are www.kenyalaw.org CAP186.

199 Armed Forces [Rev.

2009 [Subsidiary] to be tired separately or jointly; (e) appoint the presiding ofcer and members of the court and any waiting members in accordance with rule 22; (f) take the necessary steps to procure the appointment of a judge advocate; (g) appoint an ofcer or counsel assisted by an ofcer to prosecute or detail a commanding ofcer to appoint an ofcer to prosecute: Provided that the convening ofcer may appoint two such ofcers to prosecute if he thinks t; (h) appoint the date, time and place for the trial; (i) send to the presiding ofcer the charge-sheet, the convening order and, if he considers it necessary or desirable, a copy of the abstract of evidence from which any evidence which is his opinion would be inadmissible under the Act at the court martial has been expurgated; (j) send to each member of the court and to each waiting member a copy of the charge-sheet; (k) send to the prosecutor copies of the charge-sheet and convening order together with the original abstract of evidence and, where an expurgated copy thereof has been sent to the presiding ofcer, an unexpurgated copy thereof showing the passages which have been expurgated in that copy; (l) send to the judge advocate copies of the charge-sheet and convening order and an unexpurgated copy of the abstract of evidence showing, where an expurgated copy has been sent to the presiding ofcer, the passages which have been expurgated in that copy; (m) ensure that the accused is given a proper opportunity to prepare his defence in accordance with rule 24; and (n) take steps in accordance with rule 89 to procure the attendance at the court martial of all witnesses to be called for the prosecution and all witnesses whose attendance the accused has reasonably requested in accordance with rule 24: Provided that the convening ofcer may require the accused to defray or to undertake to defray, as the convening ofcer thinks t, the cost of the attendance of a witness whose attendance he has requested and if the accused refuses to defray or to undertake to defray, as the case may be, such cost, the convening ofcer shall not be obliged to take any further steps to procure the attendance of that witness.

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199 187 [Subsidiary] (a) appoint the presiding ofcer of a court martial by name; presiding ofcer and (b) appoint the members of a court martial by name; and members.

(c) appoint such waiting members as he thinks expedient by name.

Ofcers under 23.

(1) Subject to rule 79, any ofcer subject to the Act may, by direction instruction.

of the convening ofcer or at the discretion of the presiding ofcer, remain with a court martial throughout the proceeding as an ofcer under instruction.

(2) An ofcer under instruction, although allowed to be present in closed court, shall take no part in any of the deliberations or decisions of the court.

24.

(1) An accused who has been remanded for trial by court martial Preparation of may be represented by counsel and shall be afforded a proper opportunity for defence.

preparing his defence and allowed proper communication with his defending ofcer or counsel and with his witnesses.

(2) A defending ofcer or counsel shall be appointed by the commanding ofcer to defend an accused who has been remanded for trial by court martial, unless the accused states in writing that he does not wish such an appointment to be made.

(3) If the prosecution is to be undertaken by a legally qualied ofcer or by counsel the accused shall be notied of this fact in sufcient time to enable him, if he so desires and it is practicable, to make arrangements for a legally qualied ofcer or counsel to defend him.

(4) As soon as practicable after an accused has been remanded for trial by court martial, and in any case not less than twenty-four hours before his trial, he shall be given- (a) a copy of the charge-sheet; (b) an unexpurgated copy of the abstract of evidence showing the passages (if any) which have been expurgated in the copy sent to the presiding ofcer; (c) notice of any additional evidence which the prosecution intends to adduce; and (d) a list of the ranks, names and units of the presiding ofcer and members who are to form the court and of any waiting members.

(5) When an accused is given a copy of the charge-sheet and of the abstract of evidence in accordance with this rule he shall- (a) if necessary, have the charge explained to him; and (b) be informed that, upon his making a written request to his commanding ofcer not less than twenty-four hours before his www.kenyalaw.org CAP188.

199 Armed Forces [Rev.

2009 [Subsidiary] trial requiring the attendance at his trial of any witness (other than a witness for the prosecution) whom he desires to call in his defence (such witness to be named by him), reasonable steps will be taken at the possible expense of the accused in accordance with these Rules to procure the attendance of any such witness at his trial.

(6) When an accused is served with a copy of a statutory declaration which the prosecution proposes to hand to the court in accordance with section 93 (2) of the Act and rule 56 of these Rules, he shall be informed of his right under that section to require that oral evidence shall be given in lieu of such statutory declaration.

(7) When it is intended to try two or more accused jointly notice of this fact shall be given to each such accused when he is given a copy of the charge-sheet.

(8) An accused may, before trial, by written notice to the convening ofcer claim to be tried separately on the ground that he would be prejudiced in his defence if he were not tried separately; and in such case the convening ofcer shall, if he is of the opinion that the interests of justice so require, direct that the accused who has so claimed shall be tried separately.

(9) When a charge-sheet contains more than one charge the accused may, before trial, by written notice to the convening ofcer claim to be tried separately on any charge in that charge-sheet on the ground that he would be prejudiced in his defence if he were not tried separately on that charge, and in such case the convening ofcer shall, if he is of the opinion that the interests of justice so require, direct that the accused shall be tried separately on that charge.

assembly and sWearIng of Court Preliminary matters 25.

(1) Upon a court martial assembling the court shall, before beginning to be considered by the trial, satisfy themselves in closed court court and beginning of trial.

(a) that the court has been convened in accordance with the Act and these Rules; (b) that the court consists of not less than the legal minimum of ofcers; (c) that the presiding ofcer and members are of the required rank and length of service; (d) that the presiding ofcer and members have been duly appointed and are not disqualied under the Act; (e) that the judge advocate has been duly appointed; (f) that the accused appears from the charge-sheet to be subject to service law or otherwise liable to trial by court marital and to be subject to the jurisdiction of the court; and www.kenyalaw.org Rev.

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199 189 [Subsidiary] (g) that each charge is on its face correct in law and framed in accordance with these Rules.

(2) Where a vacancy occurs through a member of the court being disqualied under the Act or being absent when the court assembles the presiding ofcer may appoint a duly qualied waiting member to ll that vacancy.

(3) The presiding ofcer may, if the interests of justice so require, substitute a duly qualied waiting member for a member appointed by the convening ofcer.

(4) If the court is not satised on any of the matters mentioned in paragraph (1), and is not competent to rectify the matter itself under the Act or these Rules, it shall, before commencing the trial, report to the convening ofcer thereon.

(5) When the court has complied with this rule and is ready to proceed with the trial the presiding ofcer shall open the court and the trial shall begin.

26.

(1) The order convening the court and the names of the ofcers Objections to court.

appointed to try the accused shall be read in the hearing of the accused, who shall be given an opportunity to object to any of those ofcers in accordance with section 90 of the Act.

(2) When a court is convened to try more than one accused, whether separately or jointly, each accused shall be given an opportunity to object to any ofcer on the court in accordance with the preceding paragraph and shall be asked separately whether he has any such objection.

(3) An accused shall state the names of all the ofcers to whom he objects before any objection is disposed of.

(4) If more than one ofcer is objected to the objection to each ofcer shall be disposed of separately and the objection to the lowest in rank shall be disposed of rst, except where the presiding ofcer is objected to, in which case the objection to him shall be disposed of before the objection to any other ofcer.

(5) An accused may make a statement and call any person to make a statement in support of his objection.

(6) An ofcer to whom the accused has objected may state in open court anything relevant to the accuseds objection whether in support or in rebuttal thereof.

(7) An objection to an ofcer shall be considered in closed court by all the other ofcers on the court including any ofcer who has been appointed by the presiding ofcer in accordance with paragraph (9) in place of an ofcer who has retired.

www.kenyalaw.org CAP190.

199 Armed Forces [Rev.

2009 [Subsidiary] (8) When an objection to an ofcer is allowed that ofcer shall forthwith retire and take no further part in the proceedings.

(9) When an ofcer objected to (other than the presiding ofcer) retires and there is a duly qualied waiting member in attendance the presiding ofcer shall immediately appoint him to take the place of the ofcer who has retired.

(10) The court shall satisfy themselves that a waiting member who takes the place of a member of the court is of the required rank and not disqualied under the Act and shall give the accused an opportunity to object to him and shall deal with any such objection in accordance with this rule.

(11) If an objection to the presiding ofcer is allowed the court shall report to the convening ofcer without proceeding further with the trial.

(12) If as a result of the allowance of an objection to a member there are insufcient ofcers available to form a court in compliance with the Act, the court shall report to the convening ofcer without proceeding further with the trial, and the convening ofcer may either appoint an ofcer as a member to ll the vacancy or convene a fresh court to try the accused.

Swearing of court.

27.

(1) Immediately after rule 26 has been complied with an oath shall be administered to the presiding ofcer and each member of the court in accordance with rule 33 and in the presence of the accused.

(2) The oath shall be administered by the judge advocate to the presiding ofcer rst and afterwards to each member of the court.

(3) A court may be sworn at one time to try any number of accused then present before it, whether they are to be tried jointly or separately.

(4) When a court is convened to try two or more accused separately and one accused objects to the presiding ofcer or to any member of the court, the court may, if they think t, proceed to determine that objection in accordance with the rule 26 or postpone the trial of that accused and swear the court for the trial of the other accused only.

Swearing of judge 28.

After the court has been sworn an oath shall be administered to advocate.

the judge advocate in accordance with rule 33 and in the presence of the accused.

Swearing of ofcers 29.

After the court and judge advocate have been sworn an oath shall be under instruction.

administered to any ofcer under instruction in accordance with rule 33 and in the presence of the accused.

Appointment and 30.

(1) A competent and impartial person may be appointed at any time swearing of, and to act as an interpreter or shorthand writer at a trial by court martial and before objections to, he so acts an oath shall be administered to him in accordance with rule 33 and interpreters and in the presence of the accused.

shorthand writers.

(2) Before a person is sworn as an interpreter or as a shorthand writer www.kenyalaw.org Rev.

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199 191 the accused shall be given an opportunity to object to him in the same manner [Subsidiary] as an objection may be taken to a member of the court, and, if the court think that the objection is reasonable, that person shall not act as an interpreter or shorthand writer.

31.

The accused shall have no right to object to a judge advocate, a No right of objection to judge advocate, prosecutor or an ofcer under instruction.

prosecutor or ofcer under instruction.

32.

(1) When a court has been convened to try two or more accused Order of trial.

separately and have been sworn in accordance with rule 27 (3), the court shall try them in the order indicated by the convening ofcer or, where he has given no such indication, in such order as the court think t.

(2) When a court has been convened to try an accused on charges which are included in more than one charge-sheet, the court shall take the charge-sheets in the order indicated by the convening ofcer or, where he has given no such indication, in such order as they think t.

33.

(1) An oath which is required to be administered under these Rules Oaths and solemn shall be administered in the appropriate form and in the manner set out in the afrmations Sixth Schedule: Provided that the opening words of the oath may be varied to such words and the oath may be administered in such manner as the person taking the oath declares to be binding on his conscience in accordance with his religious beliefs.

(2) Subject to rule 27 (2), every oath shall be administered at a court martial by the presiding ofcer, a member of the court or the judge advocate.

(3) Where a person is permitted to make a solemn afrmation instead of swearing an oath the afrmation shall be in the appropriate form set out in the Sixth Schedule.

arraIgnment of aCCused 34.

(1) When the court and judge advocate have been sworn the accused Arraignment of shall be arraigned.

accused.

(2) If there is more than one charge against the accused before the court he shall be required to plead separately to each charge.

(3) If there is more than one charge-sheet against the accused before the court the court shall arraign and try the accused upon the charge in the rst of such charge-sheets and shall announce their nding thereon, and if the accused has pleaded guilty the court shall comply with paragraphs (1) and (2) of rule 44 before they arraign him upon the charge in any subsequent charge-sheet.

35.

(1) The accused, before pleading to the charge, may offer a plea to Plea to jurisdiction the jurisdiction of the court; and if he does so of court.

www.kenyalaw.org CAP192.

199 Armed Forces [Rev.

2009 [Subsidiary] (a) the accused may adduce evidence in support of the plea and the prosecutor may adduce evidence in answer thereto; and (b) the prosecutor may address the court in answer to the plea and the accused may reply to the prosecutors address.

(2) If the court allows the plea they shall adjourn and report to the convening ofcer.

(3) When a court report to the convening ofcer under this rule the convening ofcer shall- (a) if he approves the decision of the court to allow the plea, dissolve the court; (b) if he disapproves the decision of the court- (i) refer the matter back to the court and direct them to proceed with the trial; or (ii) convene a fresh court to try the accused.

Objection to charge.

36.

(1) An accused before pleading to a charge may object to it on the grounds that it is not correct in law or is not framed in accordance with these Rules, and if he does so the prosecutor may address the court in answer to the objection and the accused may reply to the prosecutors address.

(2) If the court uphold the objection they shall either amend the charge, if permissible under rule 81, or adjourn and report to the convening ofcer: Provided that if there is another charge or another charge-sheet before the court the court may, before adjourning under this rule, proceed with the trial of such other charge or other charge-sheet.

(3) When a court report to the convening ofcer under this rule, the convening ofcer shall- (a) if he approves the decision of the court to allow the objection (i) dissolve the court; or (ii) where there is another charge or another charge-sheet before the court to which the objection does not relate and which the court has not tried, direct the court to proceed with the trial of such other charge or charge-sheet only; or (iii) amend the charge to which the objection relates if permis- sible under rule 82, and direct the court to try it as amended; (b) if he disapproves the decision of the court to allow the objection- www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 193 (i) direct the court to try the charge; or [Subsidiary] (ii) where there is another charge or another charge-sheet before the court to which the objection does not relate and which the court has not tried, direct the court to proceed with the trial of such other charge or charge-sheet only; or (iii) convene a fresh court to try the accused.

37.

(1) An accused, before pleading to a charge, may offer a plea in bar of Plea in bar of trial.

trial in reliance upon section 142 or section 144 of the Act; and if he does so- (a) the accused may adduce evidence in support of the plea and the prosecutor may adduce evidence in answer thereto; and (b) the prosecutor may address the court in answer to the plea and the accused may reply to the prosecutors address.

(2) If the court allow the plea, they shall adjourn and report to the convening ofcer: Provided that, if there is another charge or another charge-sheet before the court, the court may, before adjourning under this rule, proceed with the trial of such other charge or other charge-sheet.

(3) When a court report to the convening ofcer under this rule the convening ofcer shall- (a) if he approves the decision of the court to allow the plea- (i) dissolve the court; or (ii) where there is another charge or another charge-sheet before the court to which the plea does not relate and which the court has not tried, direct the court to proceed with the trial of such other charge or charge-sheet only; (b) if he disapproves the decision of the court to allow the plea- (i) direct the court to try the charge; or (ii) where there is another charge or another charge-sheet before the court to which the plea does not relate and which the court has not tried, direct the court to proceed with the trial of such other charge or charge-sheet only; or (iii) convene a fresh court to try the accused.

38.

(1) Where two or more accused are charged jointly any one of the Application by accused may, before pleading to the charge, apply to the court to be tried accused at joint trial separately on the ground that he would be prejudiced in his defence if he were to be tried separately.

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199 Armed Forces [Rev.

2009 [Subsidiary] not tried separately.

(2) If the accused makes such an application the prosecutor may address the court in answer thereto and the accused may reply to the prosecutors address.

(3) If the court are of the opinion that the interests of justice so require they shall allow the application and try separately the accused who made it.

Application by 39.

(1) Where a charge-sheet contains more than one charge the accused accused to have may, before pleading to the charges, apply to the court to be tried separately on charges tried any charge in that charge-sheet on the ground that he would be prejudiced in separately.

his defence if he were not tried separately on that charge.

(2) If the accused makes such an application the prosecutor may address the court in answer thereto and the accused may reply to the prosecutors address.

(3) If the court are of the opinion that the interests of justice so require they shall allow the application and try the accused separately on the charge to which it relates as if that charge had been inserted in a separate charge-sheet.

Plea to charge.

40.

(1) After any pleas under rules 35 and 37, any objection under rule 36, and any application under rules 38 and 39, have been dealt with, the accused shall be required (subject to paragraph (2)) to plead either guilty or not guilty to each charge on which he is arraigned.

(2) Where a court is empowered by section 96 of the Act to nd an accused guilty of an offence other than that charged or guilty of committing the offence in circumstances involving a less degree of punishment or where they could, after hearing the evidence, make a special nding of guilty subject to exceptions or variations in accordance with rule 64, the accused may plead guilty to such other offence or to the offence charged as having been committed in circumstances involving a less degree of punishment or to the offence charged subject to such exceptions or variations.

Acceptance of plea 41.

(1) If an accused pleads guilty to a charge under paragraph (1) or of guilty.

paragraph (2) of rule 40 the judge advocate shall, before the court decide to accept the plea, explain to the accused the nature of the charge and the general effect of his plea and in particular the difference in procedure when an accused pleads guilty and when an accused pleads not guilty.

(2) A court shall not accept a plea of guilty under either paragraph (1) or paragraph (2) of rule 40 if (a) the court are not satised that the accused understands the nature of the charge or the effect of his plea; or (b) the presiding ofcer, having regard to all the circumstances, considers that the accused should plead not guilty; or www.kenyalaw.org Rev.

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199 195 (c) the accused is liable if convicted to be sentenced to death.

[Subsidiary] (3) In the case of a plea of guilty under rule 40 (2) a court shall also not accept the plea unless the convening ofcer concurs and they are satised of the justice of such a course; and the concurrence of the convening ofcer may be signied by the prosecutor.

(4) When a plea of guilty under paragraph (1) or paragraph (2) of rule 40 is not accepted by the court or the accused either refuses to plead to the charge or does not plead to it intelligibly, the court shall enter a plea of not guilty.

(5) When a court are satised that they can properly accept a plea of guilty under paragraph (1) or paragraph (2) of rule 40 they shall record a nding of guilty in respect thereof.

42.

(1) When an accused pleads guilty to the rst of two or more Pleas on alternative alternative charges the court, if they accept the accuseds plea of guilty, shall charges.

record a nding of guilty in respect of the rst charge and the prosecutor shall withdraw any alternative charge before the accused is arraigned on it.

(2) When an accused pleads guilty to one of two or more charges which are laid in the alternative other than the rst of such charges the court may (a) proceed as if the accused had pleaded not guilty to all the charges; or (b) with the concurrence of the convening ofcer (which may be signied by the prosecutor) record a nding of guilty on the charge to which the accused has pleaded guilty and a nding of not guilty on any alternative charge which is placed before it on the charge- sheet; and where the court record such ndings the prosecutor shall before the accused is arraigned on it withdraw any charge which is alternative to the charge of which the court have found the accused guilty and which is placed after it in the charge-sheet.

proCedure after reCordIng fIndIng of guIlty 43.

(1) After the court have recorded a nding of guilty, if there is no other Order of trial where charge in the same charge-sheet to which the accused has pleaded not guilty and pleas of guilty and no other accused who has pleaded not guilty to a charge in that charge-sheet, not guilty.

they shall proceed with the trial as directed by rule 44.

(2) If there is another charge in the charge-sheet to which the accused has pleaded not guilty, or there is another accused who has pleaded not guilty to a charge in that charge-sheet, the court shall not comply with rule 44 until after they have dealt with such other charge or tried such other accused and have announced and recorded their nding in respect thereof.

44.

(1) After the court have recorded a nding of guilty in respect of a charge Procedure on nding to which an accused pleaded guilty the prosecutor shall, subject to rule 43, read the of guilty after plea of abstract of evidence to the court or inform the court of the facts contained therein: guilty.

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199 Armed Forces [Rev.

2009 [Subsidiary] Provided that, if an expurgated copy of the abstract was sent to the presiding ofcer, the prosecutor shall not read to the court those parts of the abstract which have been expurgated or inform the court of the facts contained in those parts, and shall not hand the original abstract to the court until the trial is concluded.

(2) If the abstract of evidence is, in the opinion of the court, inadequate or incomplete, the court shall hear and record in accordance with these Rules sufcient evidence to enable them to determine the sentence.

(3) After paragraphs (1) and (2) have been complied with the accused may- (a) adduce evidence of character and in mitigation of punishment; and (b) address the court in mitigation of punishment.

(4) After paragraph (3) has been complied with the court shall proceed as directed in paragraphs (1), (2), (3) and (4) of rule 69.

Change of plea Change of plea.

45.

(1) An accused who has pleaded not guilty may at any time before the court close to deliberate on their nding withdraw his plea of not guilty and substitute a plea of guilty (including a plea of guilty under rule 40 (2)), and in such case the court shall, if they are satised that they can accept the accuseds changed plea, record a nding in accordance with the accuseds changed plea and so far as is necessary proceed as directed by rule 44.

(2) If at any time during the trial it appears to the court that an accused who has pleaded guilty does not understand the effect of his plea or the nature of the charge, the court shall enter a plea of not guilty and proceed with the trial accordingly.

(3) When a court enter a plea of not guilty in respect of any charge under paragraph (2) they shall, if there was a charge laid in the alternative thereto which the prosecutor withdrew under rule 42, reinstate such alternative charge, arraign the accused thereon and proceed with the trial as if it had never been withdrawn.

proCedure on pleas of not guIlty Application for adjournment of trial.

46.

After a plea of not guilty to any charge has been entered- (a) the court shall ask the accused whether he wishes to apply for an adjournment on the grounds that any of these Rules relating to procedure before trial have not been complied with and that he has been prejudiced thereby, or on the ground that he has not had sufcient opportunity for preparing his defence; www.kenyalaw.org Rev.

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199 197 [Subsidiary] (b) if the accused applies for an adjournment- (i) the accused may adduce evidence in support of his application and the prosecutor may adduce evidence in answer thereto; and (ii) the prosecutor may address the court in answer to the application and the accused may reply to the prosecutors address; (c) the court may grant an adjournment if they think the interests of justice so require.

47.

(1) The prosecutor may if he desires, and shall if required by the court, Case for prosecution.

make an opening address explaining the charge, where necessary, and the nature and general effect of the evidence which he proposes to adduce.

(2) The witnesses for the prosecution shall then be called and give their evidence.

48.

(1) If the prosecutor intends to adduce evidence which is not contained Calling of witnesses in any abstract of evidence given to the accused notice of such intention together whose evidence not with the particulars of the evidence shall, when practicable, be given to the contained in abstract accused a reasonable time before the evidence is adduced.

of evidence.

(2) If such evidence is adduced without notice or particulars having been given the court may, if the accused so desires, either adjourn after receiving the evidence or allow any cross-examination arising out of that evidence to be postponed, and the court shall inform the accused of his right to apply for such an adjournment or postponement.

49.

The prosecutor shall not be bound to call all the witnesses against the Notice to accused accused whose evidence is contained in the abstract of evidence nor a witness that witness will not be called by whom he has notied the accused that he intends to call under rule 48, but if the prosecutor does not intend to call such a witness to give evidence he shall prosecutor.

either tender him for cross-examination by the accused, or give the accused reasonable notice that he does not intend to call the witness and that the accused will be allowed to communicate with him and to call him as a witness for the defence, if he so desires and if the witness is available.

CallIng and eXamInatIon of WItnesses 50.

Subject to section 91 of the Act, an oath shall be administered to Swearing of each witness in accordance with rule 33 before he gives evidence and in the witnesses.

presence of the accused.

51.

During a trial a witness other than the prosecutor or accused shall Exclusion of not, except by leave of the court, be in court while not under examination, witnesses from court.

and if while he is under examination a discussion arises as to the allowance of a question or otherwise with regard to the evidence the court may direct the witness to withdraw during such discussion.

www.kenyalaw.org CAP198.

199 Armed Forces [Rev.

2009 [Subsidiary] Examination of 52.

(1) A witness may be examined by the person calling him, and may be witnesses.

cross-examined by the opposite party to the proceedings, and on the conclusion of any such cross-examination may be re-examined by the person who called him on matters arising out of the cross-examination.

(2) The person examining a witness shall put his questions to the witness orally and, unless an objection is made by the witness, the court, the judge advocate, the prosecutor or the accused, the witness shall reply forthwith; and if such an objection is made the witness shall not reply until the objection has been disposed of.

(3) The court may allow the cross-examination or re-examination of a witness to be postponed.

Examination of 53.

(1) The presiding ofcer, the judge advocate and, with permission witnesses by court.

of the presiding ofcer, any member of the court, may put questions to a witness.

(2) Upon any such questions being answered the prosecutor and the accused may put to the witness such questions arising from the answer which he has given as seem proper to the court.

Reading back 54.

(1) The record which has been made of the evidence given by a of evidence to witness shall be read back to him before he leaves the court and when this is witnesses.

done he may ask for the record to be corrected or explain the evidence which he has given.

(2) If any such correction is made or explanation given the prosecutor and the accused may put such questions to the witness respecting the correction or explanation as seem proper to the court.

(3) When a shorthand writer is employed it shall not be necessary to comply with paragraphs (1) and (2) if, in the opinion of the court and the judge advocate, it is unnecessary to do so: Provided that if any witness so demands paragraph (1) shall be complied with.

Calling of witnesses 55.

(1) The court may, at any time before the judge advocate begins to by court and recalling sum up, call a witness or recall a witness if in the opinion of the court it is in the of witnesses.

interests of justice to do so; and, if the court call a witness or recall a witness under this rule, the prosecutor and the accused may put such questions to the witness as seem proper to the court.

(2) The prosecutor and the accused may, at any time before the judge advocate begins to sum up, recall a witness by leave of the court and the prosecutor and the accused may put such questions to the witness as seem proper to the court.

Statutory 56.

A statutory declaration which is admissible in accordance with the declarations.

provisions of section 93 of the Act shall be handed to the court by the prosecutor www.kenyalaw.org Rev.

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199 199 or the accused, as the case may be, without being produced by a witness.

[Subsidiary] submIssIon of no Case to ansWer and stoppIng of Case 57.

(1) At the close of the case for the prosecution the accused may submit Submission of no to the court in respect of any charge that the prosecution has failed to establish case to answer and a prima facie case for him to answer and that he should not be called upon to power of court to make his defence to that charge; and if the accused makes such a submission stop a case.

the prosecutor may address the court in answer thereto and the accused may reply to the prosecutors address.

(2) The court shall not allow the submission unless they are satised that- (a) the prosecution has not established a prima facie case on the charge as laid; and (b) it is not open to them on the evidence adduced to make a special nding under either section 96 of the Act or rule 64 (3).

(3) If the court allow the submission they shall nd the accused not guilty of the charge to which it relates and announce this nding in open court forthwith; if the court disallow the submission they shall proceed with the trial of the offence as charged.

(4) Irrespective of whether there has been a submission under this rule or not, the court may at any time after the close of the hearing of the case for the prosecution, and after hearing the prosecutor, nd the accused not guilty of a charge, and if they do so they shall announce such nding in open court forthwith.

Case for the defenCe 58.

(1) After the close of the case for the prosecution the presiding ofcer Explanation to or, if he so directs, the judge advocate shall explain to the accused that accused of rights when making (a) if he wishes he may give evidence on oath as a witness or make defence.

a statement without being sworn, but that he is not obliged to do either; (b) if he gives evidence on oath he will be liable to be cross-examined by the prosecutor and to be questioned by the court and the judge advocate, but if he makes a statement without being sworn no one will be entitled to ask him any questions; and (c) whether he gives evidence or makes a statement or remains silent he may call witnesses on his behalf both to the facts of the case and to his character.

(2) After the presiding ofcer or judge advocate has complied with paragraph (1) he shall ask the accused if he intends to give evidence on oath or to make a statement without being sworn and if he intends to call any witness www.kenyalaw.org CAP200.

199 Armed Forces [Rev.

2009 [Subsidiary] on his behalf and, if so, whether he is a witness to fact or to character only.

(3) If the accused intends to call a witness to the facts of the case other than himself or to hand in a statutory declaration as to the facts of the case he may make an opening address outlining the case for the defence before the evidence for the defence is given.

Evidence for defence.

59.

(1) After rule 58 has been complied with the witnesses for the defence (if any) shall be called and give their evidence.

(2) Rules 50, 51, 52, 53, 54, 55 and 56 shall apply to the witnesses and the evidence for the defence as they apply to the witnesses and the evidence for the prosecution.

Evidence in rebuttal.

60.

After the witnesses for the defence have given their evidence the prosecutor may, by leave of the court, call a witness or recall a witness to give evidence on any matter raised by the accused in his defence which the prosecution could not properly have mentioned to the court before the accused disclosed his defence or which the prosecution could not reasonably have foreseen.

Closing addresses.

61.

(1) After all the evidence has been given the prosecutor and the accused may each make a closing address to the court.

(2) The accused shall be entitled to make his closing address after the closing address by the prosecutor.

(3) Where two or more accused are represented by the same defending ofcer or counsel he may make one closing address only.

summIng-up by Judge adVoCate Summing-up by 62.

After the closing addresses the judge advocate shall sum up the judge advocate.

evidence and advise the court on the law relating to the case in open court.

delIberatIon on, and announCement of, fIndIng on Charge Deliberation on 63.

(1) After the judge advocates summing-up the court shall close to deliberate on their nding on the charge.

nding on charge.

(2) While the court are deliberating on their nding on the charge no person shall be present except the presiding ofcer and members of the court and any ofcer under instruction.

(3) If the court, while deliberating on their nding on the charge, require further advice from the judge advocate the court shall suspend their deliberation and ask and be given such advice in open court.

Expression of 64.

(1) The opinion of the presiding ofcer and each member as to the opinions on, and nding shall be given in closed court, orally, and on each charge separately, and their opinions shall be given in order of seniority commencing with the form of, nding.

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199 201 junior in rank.

[Subsidiary] (2) Save as is otherwise provided in paragraph (4), the court shall record on every charge on which a plea of not guilty has been recorded (a) a nding of guilty or a special nding in accordance with section 96 or section 101 (1) of the Act or paragraph (3) of this rule; or (b) a nding of not guilty or of not guilty and honourably acquitted of the charge.

(3) Where the court are of the opinion as regards any charge that the facts which they nd to be proved in evidence differ from the facts alleged in the particulars of the charge, but are nevertheless sufcient to prove the offence stated in the charge and that the difference is not so material as to have prejudiced the accused in his defence, the court may, instead of recording a nding of not guilty, record a nding that the accused is guilty of the charge subject to any exception or variation which they shall specify in the nding.

(4) Where the court have recorded a nding of guilty on a charge which is laid in the alternative they shall nd the accused not guilty of any charge alternative thereto which is placed before it in the charge-sheet and record no nding on any charge alternative thereto which is placed after it in the charge- sheet.

Announcement of 65.

(1) The nding on each charge shall be announced in open court forthwith.

nding.

(2) Every conviction shall be announced as being subject to conrmation.

(3) The nding shall be in the appropriate part of Form VI set out in the Fourth Schedule.

proCedure after announCement of fIndIng 66.

After the court have announced their nding on any charge on which Completion of the court have entered a plea of not guilty, if there is another charge in the same procedure on plea charge-sheet on which the court have accepted a plea of guilty, the court shall of guilty before comply with paragraphs (1) and (2) of rule 44 in respect of that charge before deliberation on proceeding further with the trial.

sentence.

67.

Where there is another charge-sheet against the accused before the Trial of charges in court the court shall not comply with rules 68, 69 and 70 until they have arraigned other charge-sheets and tried the accused and have complied with rule 65 and, if necessary, with rule before deliberation 66 in respect of each charge in such other charge-sheet, unless that charge-sheet on sentence.

is withdrawn under rule 80.

68.

If the ndings on all charges against the accused are not guilty the Release of accused.

court shall order the accused to be released and the presiding ofcer and judge advocate shall date and sign the record of the proceedings; and the presiding ofcer shall then forward the record as directed in the convening order.

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2009 [Subsidiary] Accuseds record and 69.

(1) If the nding on a charge against the accused is guilty, or the court plea in mitigation.

makes a special nding in accordance with section 96 of the Act of rule 64(3) of these Rules, the court, before deliberating on their sentence, shall whenever possible take evidence of his age, rank and service record including- (a) any recognized acts of gallantry or distinguished conduct on the part of the accused and any decoration to which he is entitled; (b) particulars of any offence of which the accused has been found guilty during his service and which is recorded in the service books relating to the accused; and (c) the length of time he has been under arrest awaiting trial or in connement under a current sentence.

(2) Evidence of the matters referred to in paragraph (1) may be given by a witness producing to the court a written statement in Form VIII in the Fourth Schedule containing a summary of the entries in the service books relating to the accused, after the witness has in court veried such statements and identied the accused as the person to whom it relates.

(3) In addition to the evidence contained in the statement referred to in paragraph (2) it shall be the duty of the prosecutor whenever possible to call as a witness an ofcer to give to the court any information in the possession of the service authorities regarding- (a) the accuseds family background and responsibilities and any other circumstances which may have made him more susceptible to the commission of the offence charged; (b) his general conduct in the service; and (c) particulars of offences which do not appear in the statement above referred to of which the accused has been found guilty by a civil court, not being offences of which he was found guilty while under the age of fourteen years, and which are of the same general nature as that of which the accused has been found guilty by the court martial: Provided that the court shall not be informed of any such civil offence unless the nding is proved in accordance with section 139 of the Act, or the accused has admitted, after the purpose for which such admission is required has been explained to him, that he has been found guilty of the offence.

(4) The accused may cross-examine any witness who gives evidence in accordance with paragraphs (2) and (3) and, if the accused so requires, the service books, or a duly certied copy of the material entries therein, shall be produced, and if the contents of the form are in any respect not in accordance with the service books or such certied copy the court shall cause the form to be corrected accordingly.

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199 203 [Subsidiary] (5) After paragraphs (1), (2), (3) and (4) have been complied with the accused may (a) give evidence on oath and call witnesses in mitigation of punishment and to his character; and (b) address the court in mitigation of punishment.

70.

(1) Before the court close to deliberate on their sentence the accused Request by accused may request the court to take into consideration any other offence under the for other offences Act committed by him of a similar nature to that of which he has been found to be taken into guilty, and, upon such a request being made, the court may agree to take into consideration.

consideration any of such other offences as to the court seem proper.

(2) A list of the offences which the court agree to take into consideration shall be read to the accused by the judge advocate, who shall ask the accused if he admits having committed them.

(3) The accused shall sign a list of the offences which he admits having committed and the court shall take the offences in this list into consideration; and the list shall be signed by the presiding ofcer and be attached to the record of the proceedings as an exhibit.

delIberatIon on sentenCe 71.

While the court are deliberating on their sentence no person shall be Persons entitled to be present during present except the presiding ofcer, the members, the judge advocate and any deliberation on ofcer under instruction.

sentence.

72.

(1) The court shall award a sentence in respect of each of the offences Sentence and of which the accused is found guilty; and the sentence or sentences shall be in recommendation to the appropriate form set out in Part I of the Fifth Schedule.

mercy.

(2) The opinion of the presiding ofcer and each member as to the sentence shall be given orally and in closed court, and their opinions shall be given in order of seniority commencing with the junior in rank.

(3) When the court have agreed to take into consideration an offence or offences not included in the charge-sheet the court shall award one sentence in respect of the list of offences which they are taking into consideration, but not greater than the maximum sentence which may be awarded under the Act for the offence of which the accused has been found guilty, save that they may include in their sentence a direction that such deductions shall be made from the pay of the accused as they would have had the power to direct to be made if the accused had been found guilty of the offence taken into consideration as well as of the offence of which he has been found guilty.

(4) The court may make a recommendation to mercy and if they do so shall record in the proceedings their reasons for making it.

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199 Armed Forces [Rev.

2009 [Subsidiary] Postponement of 73.

Where two or more accused are tried separately by the same court deliberation on upon charges arising out of the same transaction the court may, if they think that sentence.

the interests of justice so require, postpone their deliberation upon the sentence to be awarded to any one or more of such accused until they have recorded and announced their ndings in respect of all such accused.

announCement of sentenCe and ConClusIon of trIal Announcement 74.

(1) The sentence or sentences, and any recommendation to mercy of sentence and together with the reasons for making it, shall be announced in open court; and the conclusion of trial.

sentence or sentences shall be announced as being subject to conrmation.

(2) When paragraph (1) has been complied with the presiding ofcer shall announce in open court that the trial is concluded.

(3) Immediately after the conclusion of the trial the presiding ofcer and judge advocate shall date and sign the record of the proceedings.

(4) The presiding ofcer shall then forward the record as directed in the convening order.

general dutIes of presIdIng offICer, proseCutor and defendIng offICer or Counsel General duties of 75.

It shall be the duty of the presiding ofcer to ensure that the trial is presiding ofcer.

conducted in accordance with the Act and these Rules and in a manner betting a court of justice, and in particular- (a) to ensure that the prosecutor and the defending ofcer or counsel conduct themselves in accordance with these Rules; (b) to ensure that the accused does not suffer any disadvantage in consequence of his position as such, or of his ignorance, or of his incapacity to examine or cross-examine witnesses, or to make his own evidence clear and intelligible, or otherwise; (c) to ensure that an ofcer under instruction does not express an opinion to the court on any matter relating to the trial before the court have come to their nding, nor on sentence before the court have decided upon the sentence; and (d) to ensure that the record of the proceedings and the exhibits attached to or kept with such record are kept in safe custody.

General duties of prosecutor and 76.

(1) It shall be the duty of the prosecutor and of the defending ofcer or counsel to assist the court in the administration of justice, to treat the court defending ofcer or and judge advocate with due respect and to present their cases fairly, and in counsel.

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199 205 examination of witnesses; [Subsidiary] (b) not to refer to any matter not relevant to the charge before the court; and (c) not to state as a matter of fact any matter which is not proved or which they do not intend to prove by evidence.

(2) Without prejudice to the generality of paragraph (1) it shall be the duty of the prosecutor to bring the whole of the transaction before the court and not to take any unfair advantage of, or to withhold any evidence in favour of, the accused.

77.

(1) Subject to these Rules, the following persons shall be allowed to Counsel.

appear as counsel at a court martial- (a) an advocate; (b) with the consent of the convening ofcer, any person who is recognized by him as having in any country or territory outside Kenya rights and duties similar to those of an advocate and as being subject to punishment or disability for a breach of professional rules.

(2) Any right granted by these Rules to the accused at a court martial to call or examine witnesses or to address the court, any right of the accused to object to the admissibility of evidence at a court martial and any right granted to the accused by rules 24 (5), (7) and (8), 26, 30, 35, 36, 37, 38, 39, 46, 57, 70, 78 (2), 90 and 92 (2), may be exercised by his defending ofcer or his counsel on his behalf, and any reference in these Rules to any address, request, application, claim, submission, objection or plea to the jurisdiction or in bar of trial made, taken or offered at a court martial by the accused shall be construed as including any address, request, application, claim, submission, objection or plea to the jurisdiction or in bar of trial made, taken or offered at a court martial by his defending ofcer or counsel on his behalf.

(3) If the accused is to be defended at his court martial by counsel not nominated by the convening ofcer the accused shall give the convening ofcer notice of this fact not less than twenty-four hours before his trial.

poWers and dutIes of Judge adVoCate 78.

(1) The judge advocate shall be responsible for the proper discharge General duties of of his functions to the Chief Justice.

judge advocate.

(2) The prosecutor and the accused respectively are at all times after the judge advocate is named to act at the trial entitled to his opinion on any question of law or procedure relative to the charge or trial whether he is in or out of court, subject when he is in court to the permission of the court.

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199 Armed Forces [Rev.

2009 [Subsidiary] of any defect in the constitution of the court or in the charge-sheet, and during the trial he shall advise the court upon all questions of law or procedure which may arise; and the court shall accept the judge advocates advice on all such matters unless they have weighty reasons for not doing so, and if the court do not accept it their reasons for not doing so shall be recorded by the presiding ofcer in the record of the proceedings.

(4) After the closing addresses the judge advocate shall sum up the evidence and advise the court upon the law relating to the case before the court close to deliberate on their nding; and if in the course of deliberating on their nding the court require further advice from the judge advocate, they shall suspend their deliberation and ask and be given such advice in open court.

(5) If when the court announce a nding of guilty or a special nding under section 96 of the Act or rule 64 (3) of these Rules the judge advocate is of the opinion that such nding or special nding is contrary to the law relating to the case- (a) he shall once more, but not more than once more, advise the court what ndings are in his opinion open to them; (b) the court shall then reconsider their nding in closed court; and (c) the record of the proceedings relating to such reconsideration shall be in Form VII in the Fourth Schedule.

(6) The judge advocate shall be present whenever the court is sitting whether in open or closed court, except when the court is deliberating on the nding on the charge or on a revision thereof.

(7) The judge advocate shall have equally with the presiding ofcer the duty of ensuring that the accused does not suffer any disadvantage in consequence of his position as such, or of his ignorance, or of his incapacity to examine or cross-examine witnesses, or to make his own evidence clear and intelligible, or otherwise.

(8) The judge advocate shall be responsible for seeing that a proper record of the proceedings is made in accordance with rule 90.

Judge advocate 79.

(1) If- sitting alone.

(a) during the course of a trial any question as to the admissibility of evidence arises; or (b) during a joint trial an application is made by any of the accused for a separate trial; or (c) an application is made by an accused that a charge should be tried separately, the presiding ofcer may direct that the point at issue shall be determined by the judge advocate in the absence of the presiding ofcer and the members of www.kenyalaw.org Rev.

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199 207 [Subsidiary] the court and of any ofcer under instruction; and where the presiding ofcer so directs he, the members of the court and any ofcer under instruction shall withdraw from the court.

(2) The judge advocate shall, when the presiding ofcer and members of the court and any ofcer under instruction have withdrawn in accordance with paragraph (1), hear the arguments and evidence relevant to the point at issue and shall give his ruling upon this point and such reasons therefor as he may consider necessary; and after the judge advocate has given his ruling the presiding ofcer and members of the court and any ofcer under instruction shall return to the court room and the judge advocate shall announce his ruling to them and the court shall follow his ruling.

(3) When a judge advocate sits alone in accordance with this rule the proceedings before him shall form part of the proceedings of the court, and sections 52 (1), 53, 91, 92 (1) and (2), 93, 94, 95 and 97 of the Act and rules 33, 50, 51, 52, 53, 54, 55, 56, 76, 77, 83, 84, 85, 89, 90, 91, 92, 95, 96 and 103 of these Rules shall apply to proceedings before the judge advocate sitting alone as they apply to proceedings before the presiding ofcer and members of the court, and anything which is authorized by those sections and those rules to be done by the court or by the presiding ofcer may be done by the judge advocate when sitting alone.

(4) When a judge advocate is sitting alone in accordance with this rule and a person subject to the Act commits an offence against section 52 (1) of the Act, the judge advocate shall report the occurrence to the presiding ofcer who shall take such action as he considers appropriate.

(5) The judge advocate shall be responsible for ensuring that the presiding ofcer and members do not see the record of the proceedings before the judge advocate when sitting alone until after the court has announced its nding.

WIthdraWal and amendment of Charge-sheets and Charges 80.

A court may with the concurrence of the convening ofcer (which Withdrawal of may be signied by the prosecutor) allow the prosecutor to withdraw a charge charge-sheets and before the accused is arraigned thereon or a charge-sheet before the accused is charges.

arraigned on any charge therein.

81.

(1) At any time during a trial, if it appears to the court that there is Amendment of in the charge-sheet- charge-sheets and (a) a mistake in the name or description of the accused; charges by court.

(b) a mistake which is attributable to a clerical error or omission, the court may amend the charge-sheet so as to correct the mistake.

(2) At any time during a trial, if it appears to the court before they close to deliberate on their nding that it is desirable in the interests of justice to make any addition to or omission from or alteration in a charge which cannot be made under paragraph (1), they may, if such addition, omission or alteration www.kenyalaw.org CAP208.

199 Armed Forces [Rev.

2009 [Subsidiary] can be made without unfairness to the accused, so amend the charge if the judge advocate concurs.

Amendment of 82.

When a court report to the convening ofcer under rule 36 (2) he may charges by convening amend the charge in respect of which they have reported to him by making any ofcer.

addition to or omission from or alteration in the charge which, in his opinion, is desirable in the interests of justice and which he is satised can be made without unfairness to the accused.

sIttIngs and adJournment of Court Sittings of court.

83.

Subject to the provisions of the Act and of these Rules relating to adjournment, a trial shall be continued from day to day, and the court shall sit for such time each day as may be reasonable in the circumstances: Provided that the court shall not sit on a Sunday, or on a public holiday, unless in the opinion of the court or of the convening ofcer the exigencies of the service make it necessary to do so.

Adjournment 84.

(1) During a trial the court may adjourn from time to time and from place to place as the interests of justice require.

(2) If during a trial any reason emerges which makes it advisable that the court should not continue to hear the case, the court shall adjourn and report thereon to the convening ofcer.

(3) If at any time during a trial the accused becomes ill and it appears to the court that the illness is such that it will be impracticable to continue the trial, the court shall ascertain the facts of the illness and shall then adjourn and report to the convening ofcer.

View by court.

85.

(1) If at any time during a trial before the court close to deliberate on their nding it appears to the court that they should, in the interests of justice, view any place or thing, they may adjourn for this purpose.

(2) When the court view any place or thing the presiding ofcer, members of the court, judge advocate, prosecutor, accused and defending ofcer or counsel (if any) shall be present.

Absence of presiding 86.

(1) If after the commencement of a trial the presiding ofcer ofcer, members or or judge advocate dies or is otherwise unable to attend the court shall adjourn judge advocate.

and report to the convening ofcer, who shall dissolve the court if there is any likelihood of a long delay.

(2) If after the commencement of a trial any member of the court dies or is otherwise unable to attend the court, if not thereby reduced below the legal minimum, shall continue with the trial, but if reduced below the legal minimum the court shall adjourn and the presiding ofcer shall report to the convening ofcer, who shall dissolve the court if there is any likelihood of a long delay.

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199 209 absent during any part of a trial he shall take no further part in it, and the like [Subsidiary] steps shall be taken as if the presiding ofcer, judge advocate or member, as the case may be, had died.

(4) An ofcer cannot be added to the court after the accused has been arraigned.

(5) Where a court is dissolved in accordance with this rule the convening ofcer shall without undue delay take the prescribed steps to convene another court to try the accused.

InsanIty 87.

(1) Where on the trial of a person the question of his tness to be tried Insanity.

falls to be determined in accordance with section 100 (1) of the Act the court shall take evidence as to his condition and, if after considering the evidence the court are of the opinion that the accused is t to stand trial, they shall proceed with the trial; but if they are of the opinion that the accused is unt to stand his trial they shall so nd and their nding shall be announced in open court forthwith and as being subject to conrmation.

(2) If a court, in the course of their deliberation on their nding on a charge, nd pursuant to section 101 of the Act that the accused was guilty of the offence but was insane when he committed the act or made the omission, their nding shall be announced in open court forthwith and as being subject to conrmation.

(3) Immediately after a nding has been announced under paragraph (1) or paragraph (2) the presiding ofcer shall announce in open court that the proceedings are terminated and thereupon the presiding ofcer and the judge advocate shall date and sign the record of the proceedings, and the presiding ofcer shall then forward the record as directed in the convening order.

InterVIeWIng and attendanCe of WItness 88.

(1) The prosecution shall not without the consent of the convening Interviewing of ofcer, or, after the trial has begun, without the consent of the presiding ofcer, witnesses.

interview any witness whose attendance at the trial the accused has requested in accordance with rule 24 (5) (b), or who has made a statutory declaration a copy of which the accused has served on the prosecution in accordance with section 93 of the Act.

(2) Except as provided in rule 49, neither the accused nor any person on his behalf shall, without the consent on the convening ofcer, or after the trial has begun, without the consent of the presiding ofcer, interview any witness for the prosecution whose evidence is included in the abstract of evidence, or in respect of whom the prosecution have given the accused notice under rule 48 that they intend to call him as a witness at the trial, or who has made a statutory declaration a copy of which the prosecution have served on the accused in accordance with section 93 of the Act.

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199 Armed Forces [Rev.

2009 [Subsidiary] Procuring attendance 89.

(1) A witness who is subject to the Act may be ordered by the proper of witnesses.

service authority to attend at the taking of an abstract of evidence or a trial by court martial.

(2) A witness who is not subject to the Act may be summoned to attend- (a) the taking of an abstract of evidence by an order under the hand of the commanding ofcer of the accused; or (b) a trial by court martial by an order under the hand of an ofcer authorized to convene a court martial or of a staff ofcer on his behalf or, after the assembly of the court, of the presiding ofcer.

(3) The summons referred to in paragraph (2) shall, when it relates to the taking of an abstract of evidence, be in Form IV in the First Schedule, and when it relates to a trial by court martial it shall be in Form III in the Fourth Schedule, and shall be served on the witness either personally or by leaving it with some person at the witnesss normal place of abode.

(4) At the time of service of the summons referred to in paragraph (2) there shall be paid or tendered to the witness a sum in respect of his reasonable expenses in respect of journeying to, attending at and returning from the taking of the abstract of evidence or the trial, as the case may be: Provided that for the purpose of this paragraph the tender of a warrant or voucher entitling the witness to travel free of charge shall be deemed to constitute tender of his expenses in respect of any traveling authorized by the warrant or voucher.

(5) Section 95 of the Act applies in relation to proceedings at the taking of an abstract of evidence as it applies in relation to proceedings at a court martial as though the words ofcer taking the abstract of evidence were substituted for the words presiding ofcer of the court martial.

reCord of proCeedIngs 90.

The proceedings of courts martial shall be recorded as follows- Record of (a) the proceedings shall be recorded in writing in accordance with the proceedings.

appropriate part of Form V in the Fourth Schedule and in sufcient detail to enable the conrming ofcer to follow the course of the proceedings and to judge the merits of the case; (b) when there is no shorthand writer present the evidence shall be taken down in narrative form as nearly as possible in the words used: Provided that, if the court, the judge advocate, the prosecutor or the accused considers it necessary, any particular question and answer shall be taken down verbatim; www.kenyalaw.org Rev.

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199 211 [Subsidiary] (c) when an objection, submission or application is made during a trial at which there is no shorthand writer a record shall be made of the proceedings relating to such objection, submission or application if and in such detail as the court or judge advocate thinks t: Provided that if the prosecutor or accused so requests a note shall be made of the objection, submission or application, the grounds therefor, the advice of the judge advocate thereon and the decision of the court; (d) When any address by the prosecutor or the accused or summing-up of the judge advocate is not in writing and there is no shorthand writer present it shall only be necessary to record as much of such address or summing-up as the presiding ofcer or the judge advocate thinks proper: Provided that if the prosecutor or accused so requests a note shall be made of any particular point in such address or summing-up; (e) there shall not be recorded in the record of the proceedings any matter not forming part of the trial; but, if any comment or report seems to the court to be necessary, the presiding ofcer may forward it to the proper service authority in a separate document.

91.

(1) Subject to paragraph (2), any document or thing admitted in Exhibits.

evidence shall be made an exhibit.

(2) When an original document or book is produced to the court by a witness the court may at the request of the witness compare a copy of it or an extract of the relevant parts therefrom with the original, and after they have satised themselves that such copy or extract is correct and the judge advocate has certied thereon that the court has compared it with the original and found it correct, the court may return the document or book to the witness and attach the copy or extract to the record of the proceedings as an exhibit.

(3) Every exhibit shall- (a) be marked with a number or letter and be signed by the judge advocate or have a label bearing a number or letter and the signature of the judge advocate afxed to it; (b) be attached to or kept with the record of proceedings unless in the opinion of the court having regard to the nature of the exhibit or for other good reason it is not expedient to attach it to or keep it with the record.

(4) When an exhibit is not attached to or kept with the record of the proceedings under paragraph (3) (b) the presiding ofcer shall ensure that proper steps are taken for its safe custody.

92.

(1) During a trial the record of proceedings and the exhibits shall be Custody and deemed to be in the custody of the presiding ofcer, save when he has withdrawn inspection of record www.kenyalaw.org CAP212.

199 Armed Forces [Rev.

2009 [Subsidiary] from the court in accordance with rule 79 (1) when they shall be deemed to be of proceedings in the custody of the judge advocate.

during trial.

(2) With the permission of the court, the prosecutor or the accused may at any reasonable time before the trial is concluded have a particular part of the record of the proceedings read to him and, if proper precautions are taken for its safety, inspect any exhibit.

ConfIrmatIon, reVIsIon and promulgatIon 93.

(1) When a conrming ofcer receives the record of the proceedings Conrmation and promulgation.

of a court martial and the nding of the court requires conrmation he shall record, in the appropriate part of Form X in the Fourth Schedule, his decision with regard to the proceedings, and any sentence and any order which the court may have made under section 104 of the Act, on the record of the proceedings; and such record of his decision shall form part of the record of the proceedings.

(2) When a court have accepted a plea of guilty made under rule 40 (2) the conrming ofcer may conrm their nding, notwithstanding that the court have accepted the plea without the concurrence of the convening ofcer, if in the opinion of the conrming ofcer it is in the interests of justice to do so.

(3) When a court have rejected a plea to the jurisdiction of the court or a plea in bar of trial or have overruled an objection to a charge it shall not be necessary for the conrming ofcer to approve specically the decision of the court, but his approval shall be implied from his conrming the nding on the charge to which the plea or objection relates; and, if he disapproves the decision of the court to reject the plea or to overrule the objection, he shall withhold conrmation of the nding on the charge to which the plea or objection relates.

(4) A conrming ofcer may state his reasons for withholding conrmation in any case, but if he withholds conrmation, where a court have rejected plea to the jurisdiction or a plea in bar of trial or have overruled an objection to the charge, because he disapproves this decision of the court, he shall when recording his decision under paragraph (1) state that he has withheld conrmation for this reason.

(5) If the sentence of a court martial is informally expressed the conrming ofcer may in conrming the sentence vary the form thereof so that it shall be properly expressed.

(6) Whenever it appears there is sufcient evidence or a plea of guilty under paragraph (1) or paragraph (2) of rule 40 to justify the nding of the court, such nding and any lawful sentence consequent thereon may be conrmed, and if conrmed shall be valid, notwithstanding any deviation from these Rules, if the accused has not been prejudiced by such deviation.

(7) When a conrming ofcer has conrmed a nding and sentence of a court or has withheld conrmation thereof he shall send the record of the proceedings to the commanding ofcer of the accused for promulgation to the www.kenyalaw.org Rev.

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199 213 [Subsidiary] accused of the nding and sentence, or of the fact that conrmation has been withheld, as the case may be.

(8) The fact of promulgation shall be recorded on the record of the proceedings in Form XIII in the Fourth Schedule.

(9) If conrmation has been withheld because the conrming ofcer disapproves the courts decision to reject a plea to the jurisdiction or a plea in bar of trial or to overrule an objection to the charge, the accused shall be so informed.

94.

(1) The proceedings and decision of a court on revision shall be Revision.

recorded on the record of the proceedings in Form IX in the Fourth Schedule, and the presiding ofcer shall date and sign such record and decision and return it to the conrming ofcer after it has been signed by the judge advocate.

(2) When an accused is acquitted on revision the revised nding shall be communicated to the accused in such manner as may be specied by the conrming ofcer.

loss of proCeedIngs 95.

(1) If before conrmation the whole or any part of the original record Loss of original of the proceedings of a court martial is lost and a copy exists, such copy may, if record of proceedings the presiding ofcer or the judge advocate certies it to be correct, be accepted and used in lieu of the original.

before conrmation.

(2) If before conrmation the whole or any part of the original record of the proceedings of a court martial is lost and no copy thereof exists, but evidence of the proceedings of the court can be procured to enable the record or part thereof which has been lost to be reconstituted sufciently to permit the conrming ofcer to follow the course of the proceedings and to judge the merits of the case, the record as so reconstituted may be accepted and used in lieu of the original if the judge advocate certies it to be an adequate record: Provided that where part only of the original record of the proceedings of a court martial has been lost, and the part which remains is sufcient to enable the conrming ofcer to follow the course of the proceedings and judge the merits of the case, such remaining part may be accepted and used as if it were the complete record if the judge advocate certies it to be an adequate record, and in such case it shall not be necessary to reconstitute the part of the record which has been lost.

(3) If before conrmation the whole or any part of the original record of proceedings of a court martial is lost and such loss cannot be made good under either paragraph (1) or paragraph (2), the conrming ofcer shall withhold conrmation and shall record his decision in the appropriate form set out in the Fourth Schedule.

96.

If after conrmation the whole or any part of the original record Loss of original of the proceedings of a court martial is lost and a copy thereof is certied by record of proceedings the presiding ofcer or judge advocate to be correct, or a sufcient record www.kenyalaw.org CAP214.

199 Armed Forces [Rev.

2009 [Subsidiary] of the charge, nding, sentence and proceedings before the court and of the after conrmation.

conrmation of the nding and sentence remains or can be reconstituted to permit of the case being reviewed or the sentence reconsidered, such copy or reconstituted record or remaining part of the record may be accepted and used in lieu of the original.

length of Custody of reCord of proCeedIngs and Cost of CopIes of proCeedIngs Custody of record 97.

For the purposes of section 114 (1) of the Act the prescribed period of proceedings after during which the record of the proceedings of a court martial shall be kept in the custody of the Commander shall be six years from the conclusion of the trial.

conrmation.

Cost of copies 98.

The rate at which copies of the record of the proceedings of a court of record of martial shall be supplied in accordance with section 114 (2) and (3) of the Act proceedings.

shall be the estimated cost of the copy required not exceeding two shillings for every folio of one hundred words.

petItIons Petitions.

99.

(1) If an accused who has been sentenced by a court martial wishes to petition before conrmation against the nding or sentence or both, he shall present a petition to the conrming ofcer in the appropriate form set out in the Seventh Schedule.

(2) If an accused who has been sentenced by a court martial wishes to petition after conrmation against the nding or sentence or both, he shall present a petition to the reviewing authority in the appropriate form set out in the Seventh Schedule.

(3) For the purposes of section 106 of the Act the prescribed time within which a petition may be presented to the reviewing authority after conrmation shall be six months from the date that conrmation of a conviction or sentence is promulgated.

(4) If an accused who has been sentenced by a court martial wishes to petition at any time after promulgation against the sentence, he shall present a petition to the Commander for the reconsideration of the sentence under section 106 of the Act in the appropriate form set out in the Seventh Schedule to these Rules.

(5) For the purposes of section 112 (2) of the Act the prescribed intervals at which a sentence of imprisonment is to be reconsidered shall be intervals of not more than six months, provided that a sentence of less than one year but of or exceeding three months is to be rst reconsidered not later than at the completion of half the sentence, excluding any remission due.

(6) In any of the circumstances specied in the rst column of Part II of the Seventh Schedule a petition under paragraph (2) or paragraph (4) which is presented to the person specied in relation to those circumstances in the second column of that Schedule shall be treated as having been presented to www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 215 the authority to whom the petition is addressed.

[Subsidiary] mIsCellaneous 100.

A notice under paragraph (iii) of the proviso to section 93 (2) of the Notice requiring oral Act requiring that oral evidence shall be given in lieu of a statutory declaration evidence in place of shall be in Form IV in the Fourth Schedule to these Rules.

statutory declaration.

101.

(1) Where in the opinion of the ofcer who is or would be responsible Exceptions from for convening a court martial to try the accused or, if he is not available, of the Rules on account senior ofcer on the spot, the exigencies of the service render compliance with all of the exigencies of or any of the provisions of the rules mentioned in paragraph (4) impracticable, service.

he may make a declaration to that effect in Form II in the Fourth Schedule.

(2) A declaration made under paragraph (1) by the senior ofcer on the spot shall be forwarded by him as soon as possible to the ofcer who is or would be responsible for convening a court martial to try the accused.

(3) When a declaration has been made under paragraph (1) it shall not be necessary to comply with any provision of these Rules which is mentioned in that declaration and these Rules shall be construed accordingly.

(4) The provisions of these Rules in respect of which a declaration may be made under paragraph (1) are- (a) rule 18 in so far as it provides that the documents specied therein shall be given to the accused not less than twenty-four hours before the appropriate superior authority investigates and deals summarily with the charge; (b) rule 24, paragraphs (2) and (3) and paragraph (4) in so far as it provides that the documents specied therein shall be given to the accused not less than twenty-four hours before his trial.

(5) If an accused is brought to trial by court martial or is dealt with summarily by an appropriate superior authority any declaration which has been made in his case under paragraph (1) shall be attached to the record of the proceedings of the court martial or to the record made by the appropriate superior authority as the case may be.

102.

(1) When in the opinion of the ofcer who is or would be responsible Exceptions from for convening a court martial to try the accused, or if he is not available of the Rules in interests of senior ofcer on the spot, a charge-sheet, abstract of evidence or other document security.

which, or a copy of which, is required under these Rules to be given to an accused contains information the disclosure of which would or might be directly or indirectly useful to an enemy, he may make a declaration to that effect in Form II in the Fourth Schedule specifying the document concerned.

(2) A declaration made under paragraph (1) by the senior ofcer on the spot shall be forwarded by him as soon as possible to the ofcer who is or would be responsible for convening a court martial to try the accused.

www.kenyalaw.org CAP216.

199 Armed Forces [Rev.

2009 [Subsidiary] (3) When a declaration has been made under paragraph (1) it shall not be necessary to give to the accused any document mentioned in that declaration, or any copy of such a document, and it shall be a sufcient compliance with these Rules if the accused is given a proper opportunity to inspect such document while preparing and making his defence.

(4) If an accused is brought to trial by court martial or is dealt with summarily by an appropriate superior authority any declaration which has been made in his case under paragraph (1) shall be attached to the record of the proceedings of the court martial or to the record made by the appropriate superior authority as the case may be.

Procedure in case 103.

(1) In any case where these Rules provide for a person to make, read of illiteracy or or sign any written statement or other document, if such person is illiterate, or incapacity.

otherwise incapacitated, then such statement or other document (a) may be written down for him; (b) shall be read over to him in a language which he understands; (c) shall have his signature, mark or thumbprint afxed to it; and (d) shall be endorsed with a certicate by the person assisting him to the effect that this rule has been complied with and that he is satised that such illiterate or incapacitated person has understood the contents of that statement or document.

(2) The certicate referred to in paragraph (1) shall identify the person giving it by name, and number, rank and unit where appropriate, or address, as the case may be.

Deviations from 104.

A deviation or omission from a form or form of words set out in a the forms in the Schedule to these Rules shall not, by reason only of such deviation or omission, Schedules.

render any document, act or proceeding invalid.

Cases not covered by 105.

In any case not provided for by these Rules such course shall be Rules.

adopted as appears best calculated to do justice.

FIRST SCHEDULE forms for CommandIng offICers Form I.

Delay Report.

Form II.

Abstract of evidence.

Form III.

Certicate to be attached to an abstract of evidence after it has been handed to the accused.

Form IV.

Summons to a witness to attend the taking of an abstract of evidence.

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199 217 form I (r.

5) [Subsidiary] DELAY REPORT Unit Address.

Telephone:.

.

.

.

To: (Convening Ofcer) 1 EIGHT DAY DELAY REPORT pursuant to the Armed Forces Act, section 72 (2).

Number, Rank, Name of accused.

.

_ Date placed in arrest., 19 _ Alleged Offence(s) Date of Alleged Offence(s).

.

.

2 The accused is in close/open arrest.

The reasons for his retention in arrest are.

.

is being taken.

is being taken has been taken was taken on ., 19.

has been taken 2 The abstract of evidence { has not yet been taken because.

.

was consulted on ., 19.

2 The Attorney-General { has not yet been consulted because.

.

was received on , 19.

2 The AttorneyGenerals advice { has not yet been received.

is being taken on the Attorney-Generals 2 Action has been taken advice as follows { } { }.

.

www.kenyalaw.org CAP218.

199 Armed Forces [Rev.

2009 [Subsidiary] has not yet been xed.

2 Date of trial { has been xed as.

., 19.

Reasons for delay since last report.

.

.

.

.

.

.

Ofcer commanding accuseds unit ( to be signed personally by the C.O.) Date , 19.

notes 1 Insert 1st, 2nd, 3rd, Final or as the case may be.

2 Strike out words not applicable.

_ form II (r.

9 (1)) ABSTRACT OF EVIDENCE Abstract of evidence in the case of.

(number, rank, name, unit) consisting of the.

(insert the number of statements) attached statements and.

1 (insert the number of prcis ) prcis of evidence of witnesses for the prosecution and compiled by me (the Commanding Ofcer of the 2 accused) (.

on the direction of the commanding ofcer of the accused).

(Signature and rank) (Date) notes 1 Strike out any reference to statements or prcis which are not applicable.

2 Insert name and rank of the ofcer making the abstract.

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199 219 [Subsidiary] form III (r.

9 (4)) CERTIFICATE TO BE ATTACHED TO AN ABSTRACT OF EVIDENCE AFTER IT HAS BEEN HANDED TO THE ACCUSED Certied that I1 today handed to the 2 accused.

the abstract of evidence relating to him datedday of, 19., and duly cautioned him in accordance with rule 9 (2) and that he (elected to make and sign the statement dated the.

day of , 19., which is marked.

and attached to this certicate) (did not make a statement).

.

(Signature of certifying ofcer) (Date) notes 1 Insert rank, name and unit of ofcer signing the certicate.

2 Insert number, rank, name and unit of the accused.

_ form IV (r.

89 (3)) SUMMONS TO A WITNESS TO ATTEND THE TAKING OF AN ABSTRACT OF EVIDENCE TO : .12 WHEREAS a charge has been preferred against.

AND WHEREAS I have directed an abstract of the evidence to be taken 3 at.

on the day of ., 19.

Pursuant to section 228 of the Armed Forces Act and rule 89 of the Armed Forces Rules of Procedure, made thereunder, YOU ARE HEREBY SUMMONED and required to attend, as a witness, the taking of the said abstract of evidence at.3 on the.

day of ., 19., at .oclock in the.

noon and to bring with you the 4 documents hereinafter mentioned, viz.

:.

.

.

.

.

www.kenyalaw.org CAP220.

199 Armed Forces [Rev.

2009 [Subsidiary] Whereof you shall fail at your peril.

Given under my hand at.

on the day of ., 19.

.

(Signature, rank and unit).

Commanding ofcer of the accused notes 1 Insert name and address of the person to whom the summons is to be sent.

2 Insert the number, rank, name and unit of the accused.

3 Insert the place where the abstract of evidence is to be taken.

4 Specify the documents (if any) which the witness is to bring.

If the witness is not required to bring any documents, strike out the words relating to the documents.

SECOND SCHEDULE Form I.

Commencement of a charge-sheet.

Form II.

Statement of offences.

Form III.

Illustrations of charge-sheets.

form I (r.

13 (3)) COMMENCEMENT OF A CHARGE-SHEET 1.

The accused.

(number, rank, name and unit) (an ofcer) (a serviceman) of the Armed Forces being subject to the Armed Forces Act, under section 7 (a) of that Act, is charged with-.

.

2.

The accused.

(number, rank, name and unit) section 184 A reservist called out under { section 185 } of the Armed Forces Act, section 186 being subject to that Act under section 7 (b) of that Act, is charged with-.

.

3.

The accused (name and unit in which employed) a person serving with the Armed Forces under an engagement whereby he agrees to be subject to the Armed Forces Act, while so serving, being subject to that Act under section 7 (c) of that Act, is charged with-.

.

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199 221 [Subsidiary] 4.

The accused (number, rank and name) a member of the Armed Forces Constabulary, being subject to the Armed Forces Act, under section 8 (1) of that Act, is charged with- 5.

The accused.

(name) a person employed in the service of a unit a part of a unit which is { accompanying a unit { a member of a unit } on active service, being subject to the Armed Forces Act, under section 9 (1) of that Act, is charged with- 6.

The accused.

(number, rank, name and unit) an ofcer military { a serviceman } of the { air } forces of a country to naval which section 11 (2) of the Armed Forces Act, applies, seconded { attached } to a unit of the Armed Forces being subject to that Act under section 11 (1) (b) of that Act, is charged with- 7.

The accused (name) formerly (number, rank and unit if applicable) an ofcer a serviceman } of the Armed Forces a reservist a person { a member of the Armed Forces } Constabulary www.kenyalaw.org CAP222.

199 Armed Forces [Rev.

2009 [Subsidiary] 7 (a) 7 (b) then subject to the Armed Forces Act, under section 7 (c) { 8 (1) } 9 (1) of that Act, now liable to trial by court-martial under section 141 of that Act, is charged with-.

form II (r.

14 (4)) STATEMENTS OF OFFENCES treaChery, CoWardICe and offenCes arIsIng out of serVICe Section 14 (a) (a) (b) (b) (c) With intent to (c) of the Armed (1) (d) assist the enemy, (d) Forces Act.

(e) contrary to section (e) { (f) } 14 (1) { (f) } (g) (g) (h) (h) (a) (b) Knowingly and without (c) of section 14 (1) of (2) lawful excuse doing an act (d) the Armed Forces Act, specied in paragraph (e) contrary to section 14 (2) { (f) } of that Act.

(g) by the enemy of aircraft capture belonging to the armed (3) Negligently causing the forces, contrary to { destruction } section 14 (3) of the Armed Forces Act.

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199 223 Section 15 [Subsidiary] (1) Communicating with the enemy (1) of the Armed (2) { Giving intelligence to } contrary { (2) } Forces Act.

to section 15 Section 16 (1) Misconduct by a person (a) in command with intent to (b) of the Armed Forces assist the enemy contrary (c) Act.

to section 16 (1) { (d) } (e) (2) Misconduct by a person in command otherwise than with intent to assist the enemy contrary to section 16 (2) of the Armed Forces Act.

Section 17 Misconduct by a person not in command (with intent to assist the enemy) contrary to section 17 of the Armed Forces Act.

Section 18 (a) (1) Cowardice before the enemy { (b) } of the Armed Forces contrary to section 18 (1) (c) Act.

(2) Inducing cowardice before the enemy contrary to section 18 (2) of the Armed Forces Act.

Section 19 Neglecting to perform a duty contrary to section 19 of the Armed Negligently performing } Forces Act.

Section 20 (a) Spreading reports relating to operations calculated to create despondency or unnecessary alarm contrary to section 20 (a) of the Armed Forces Act.

(b) When before the enemy using words calculated to create despondency or unnecessary alarm contrary to section 20 (b) of the Armed Forces Act.

Section 21 (1) Being captured through disobedience or wilful neglect contrary to section 21 (1) of the Armed Forces Act.

www.kenyalaw.org CAP224.

199 Armed Forces [Rev.

2009 [Subsidiary] Failing to take reasonable steps after capture to Preventing a person rejoin the armed forces contrary (2) Discouraging } from taking to section 21 (2) of the Armed { } Forces Act.

Section 22 Sleeping at his post when on guard duty or watch contrary to section 22 (1) (a) Sleeping when on guard duty or watch contrary to section 22 (1) (b) (1) Drunkenness when on guard duty or watch of the Armed Forces contrary to section 22 (1) (c) Act.

{ Leaving his post when on guard } Absenting himself } duty or watch contrary to section 22 (1) (d) Striking a person on guard duty or watch to let a (2) { Using violence against person pass contrary to section 22 (3) of Compelling } the Armed Forces Act.

Section 23 (a) (a) (b) } Looting contrary to section { (b) } of the Armed Forces Act.

(c) 23 (c) Section 24 Committing an offence person of a member of a civil population against the { } outside Kenya contrary to section property 24 of the Armed Forces Act.

mutIny and InsubordInatIon Section 25 (1) (a) Mutiny with violence { relating to the } contrary to section 25 (1) (a) of the enemy Armed Forces Act.

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199 225 [Subsidiary] with violence contrary to section (1) (b) Incitement to mutiny { } 25 (1) (b) of the relating to the enemy Armed Forces Act.

(2) { Mutiny } contrary to section 25 (2) of the Armed Incitement to mutiny Forces Act.

Section 26 (a) Failing to suppress or prevent mutiny contrary to section 26 (a) of the Armed Forces Act.

(b) Failing to report mutiny contrary to section 26 (b) of the Armed Forces Act.

Section 27 Striking his superior ofcer contrary to section (a) { Using violence against } 27 (a) of the Armed Forces Act.

offering violence to threatening language to his superior ofcer contrary to (b) Using { insubordinate } section 27 (b) of the Armed Forces Act.

Section 28 (1) Disobeying a lawful command with wilful deance of Authority contrary to section 28 (1) of the Armed Forces Act.

(2) Disobeying a lawful command contrary to section 28 (2) of the Armed Forces Act.

Section 29 a provost ofcer a duty ofcer (a) Obstructing an ofcer of the patrol { a person exercising a provost ofcer authority under or a duty ofcer on behalf of } an ofcer of the } patrol contrary to section 29 (a) of the Armed Forces Act.

www.kenyalaw.org CAP226.

199 Armed Forces [Rev.

2009 [Subsidiary] a provost ofcer a duty ofcer (b) Refusing to an ofcer of the patrol assist { a person exercising a provost ofcer authority under or a duty ofcer on behalf of } an ofcer of the } patrol contrary to section 29 (b) of the Armed Forces Act.

Section 30 (1) Disobedience to standing orders contrary to section 30 (1) of the Armed Forces Act.

desertIon, absenCe WIthout leaVe, etC.

Section 31 (1) (a) Desertion contrary to section 31 (1) (a) of the Armed Forces Act.

(1)(b) { Persuading } a person to desert contrary to section 31 (1) Procuring (b) of the Armed Forces Act.

Section 32 (a) Absence without leave contrary to section 32 (a) of the Armed Forces Act.

(b) { Persuading } a person to absent himself without leave contrary Procuring to section 32 (b) of the Armed Forces Act.

Section 33 (a) Assisting a person to desert or absent himself contrary to section 33 (a) of the Armed Forces Act.

report without delay a deserter or absentee (b) Failing to a person attempting to { take steps to cause { desert or absent } the apprehension of himself.

contrary to section 33 (b) of the Armed Forces Act.

Section 34 Failing to attend for a service duty contrary to section 34 of the Leaving a service duty without } Armed Forces Act.

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199 227 [Subsidiary] malIngerIng, drunkenness and quarrellIng Section 35 (a) Malingering contrary to section 35 (b) of the Armed Forces { (c) } Act.

(d) Section 36 (1) Drunkenness contrary to section 36(1) of the Armed Forces Act.

Section 37 (a) { Fighting } with another person contrary to section 37 (a) Quarrelling of the Armed Forces Act.

(b) Using { words } likely to cause a disturbance contrary to behaviour section 37(b) of the Armed Forces Act.

offenCes relatIng to property Section 38 Stealing Fraudulently misapplying public property (a) Being concerned in stealing of fraudulent contrary the to section misapplication of } { 38 (a) of { Conniving at } the Armed Forces Act.

(b) Receiving public property contrary to section 38 (b) of the { } Armed Forces Act.

Retaining Wilfully damaging public property contrary to section 38 (c) (c) Being concerned in of the Armed Forces Act.

{ } the wilful damage of (d) By willful neglect damaging public property by re contrary to section 38(d) of the Armed Forces Act.

www.kenyalaw.org CAP228.

199 Armed Forces [Rev.

2009 [Subsidiary] Section 39 Stealing Fraudulently misapplying property contrary to section 39 (a) (a) Being concerned in stealing of fraudulent of the Armed the Forces Act.

misapplication of } { { Conniving at } (b) Receiving property contrary to section 39 (b) of the Armed { } Forces Act.

Retaining Wilfully damaging property contrary to section 39 (c) of the (c) Being concerned in Armed Forces Act.

{ } the wilful damage of Section 40 captured Wilfully causing an aircraft lost Negligently allowing a ship to be destroyed { } { }{ } damaged a vehicle { stranded } hazarded contrary to section 40 of the Armed Forces Act.

Section 41 (a) Being concerned in an improper an aircraft contrary to (a) (b) transaction involving the use of { } a ship section 41 (b) { } a vehicle of the Armed Forces Act.

Section 42 Losing public property contrary to section (a) Negligently damaging a service decoration 42 (a) of the { } { } granted to him Armed Forces Act.

Losing his equipment contrary to section 42 (b) (b) Negligently damaging of the Armed Forces Act.

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199 229 [Subsidiary] (c) Negligently damaging public property by re contrary to section 42 (c) of the Armed Forces Act.

an animal contrary to section 42 (d) of the Armed (d) Neglect of a bird Forces Act.

{ } a service decoration contrary to section (e) Making away with granted to him 42 (e) of the Armed { } Forces Act.

his equipment Section 43 obtaining billets contrary to (a) Unlawfully ordering a person to obtain section 43 (a)of the { } { procuring Armed Forces Act.

(b) Corruption in relation to a billeting order contrary to section 43 (b) of the Armed Forces Act.

Committing an offence against a person his billet (c) { } Damaging property in contrary to { Damaging of property in section 43 (c) } of the Armed Forces Act.

Section 44 (a) Unlawful requisitioning contrary (a) of the Armed Forces (1) (b) to section 44 (1) (b) Act.

{ } { } (1) (c) Corruption in relation to a requisition order contrary to section 44(1) (c) of the Armed Forces Act.

offenCes relatIng to flyIng Section 45 Willfully doing an act ying Negligently making an in the use of aircraft { } { } ommission { relation to aircraft } aircraft { material www.kenyalaw.org CAP230.

199 Armed Forces [Rev.

2009 [Subsidiary] causing loss of life { bodily injury to a person contrary to section likely to cause loss of 45 of the Armed Forces Act.

{ } life or bodily injury Section 46 Unlawful low ying contrary to section 46 of the Armed Forces Act.

Section 47 Flying an aircraft in a manner causing or likely to cause unneces sary annoyance to a person contrary to section 47 of the Armed Forces Act.

offenCes relatIng to and by persons In Custody Section 48 an investigation contrary to section 48 (1) (a) of (1)(a) Delaying { } a trial the Armed Forces Act.

(1) (b) Failing to release a person in arrest contrary to section 48 (1) (a) of the Armed Forces Act.

(2) Failing to report the offence for which a person has been placed in custody contrary to section 48 (2) of the Armed Forces Act.

(3) Failing to give in writing information relating to a person committed to his charge as a guard commander contrary to section 48 (3) (b) of the Armed Forces Act.

Section 49 (1) Willfully allowing a person to escape contrary to section 49 (1) of the Armed Forces Act.

(2)(a) Releasing a person without authority contrary to section 49 (2) (a) of the Armed Forces Act.

(2)(b) Allowing a person to escape contrary to section 49 (2) (b) of the Armed Forces Act.

Section 50 (1) Refusing to obey an ofcer who orders him into Striking arrest contrary to section 50 (1) { Using violence against of the Armed Forces Act.

{ Offering violence to www.kenyalaw.org Rev.

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199 231 [Subsidiary] Striking whose duty it is (2) Using violence against a person to apprehend him { } { } Offering violence to in whose custody he is contrary to section 50 (2) of the Armed Forces Act.

Section 51 Escaping from custody contrary to section 51 of the Armed Forces Act.

offenCes relatIng to Courts martIal and other authorItIes Section 52 (a) (a) (1) (b) (b) (c) Contempt of a court martial (c) of the Armed Forces (d) contrary to section 52 (1) (d) Act.

(e) (e) { } { } (f) (f) Section 53 (1) Making a false statement contrary to section 53 (1) of the Armed Forces Act.

Section 54 (a) Preventing a person in executing a warrant of arrest Obstructing contrary to section 54 (a) of the Armed Forces Act.

{ } (b) Preventing a person in making a lawful arrest contrary to Obstructing section 54 (b) of the Armed Forces Act.

{ } prIze offenCes Section 55 Being in an aircraft the High Court (a) command of a ship failing to send to a prize court { } { } an aircraft taken as a prize all papers found on board a ship contrary to section 55 (a) of { } the Armed Forces Act.

www.kenyalaw.org CAP232.

199 Armed Forces [Rev.

2009 [Subsidiary] Being in an aircraft unlawfully making an an aircraft (b) command of a ship an agreement for the a ship { } { } ransoming of goods taken as a prize contrary to section 55 (b) of the Armed Forces Act.

Being in an aircraft by agreement restoring (c) command of a ship by collusion abandoning { } { } { } an aircraft a ship } { goods taken as a prize contrary to section 55 (c) of the Armed Forces Act.

Section 56 (a) Striking an aircraft { } Ill-treating a person on board a ship Unlawfully taking a thing } { from the possession of taken as a prize contrary to section 56 (a) of the Armed Forces Act.

an aircraft taken as a prize any goods not lawfully } (b) Removing out of a ship adjudged to be a prize contrary to { section 56 (b)of the Armed Forces Act.

(c) Fraudulently breaking an aircraft taken as a prize bulk on board a ship detained by { } { } belligerent right contrary to section 56 (c) of the Armed Forces Act.

mIsCellaneous offenCes Section 57 Promoting a political association contrary (a) Being a member of to section 57 (a) of the Armed { } Taking part in the activities of Forces Act.

(b) Expressing political views in a public place contrary to section 57 (b) of the Armed Forces Act.

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199 233 [Subsidiary] Addressing a meeting (c) Joining in a demonstration in support of a { } association contrary to } Political object section 57 (c) { of the Armed { Forces Act.

Candidate for a national election } local authority { Section 58 Making a false answer on enlistment contrary to section 58 of the Armed Forces Act.

Section 59 Making a false statement to obtain leave contrary to section 59 of } prolong the Armed Forces Act.

{ Section 60 (a) Making an aircraft } } Signing a certicate relating to aircraft material { { without ensuring its accuracy contrary to section 60 (a) of the Armed Forces Act.

(b) Making the seagoing } } Signing a certicate relating to the ghting { { efciency of a ship without ensuring its accuracy contrary to section 60 (b) of the Armed Forces Act.

Section 61 (a) Making service document contrary to } Signing a false section 61 (a) of the Armed { } Making a false entry in a Forces Act.

Altering (b) Altering an entry in a service document contrary to Making away with section 61 (b) of the Armed Forces Suppressing } Act.

{ Defacing www.kenyalaw.org CAP234.

199 Armed Forces [Rev.

2009 [Subsidiary] (c) Failing to make an entry in a service document so that it is to his knowledge false contrary to section 61 (c) of the Armed Forces Act.

Section 62 Scandalous conduct unbecoming the character of an ofcer contrary to section 62 of the Armed Forces Act.

Section 63 Striking a person of inferior rank contrary to section 63 of } } Ill-treating less seniority the Armed Forces Act.

{ Section 64 of a cruel Disgraceful conduct kind contrary to section 64 an indecent of the Armed Forces Act.

{ an unnatural } Section 65 (a) Making a false accusation contrary to section 65 (a) of the Armed Forces Act.

(b) Making a false statement in a complaint contrary to Wilfully suppressing a material fact section 65 (b) of the Armed { } Forces Act.

Section 66 Attempting to commit a service offence contrary to section 66 of the Armed Forces Act, that is to say (set out the offence).

Section 67 Aiding, abetting, the commission of a service offence contrary counseling or to section 67 of the Armed Forces procuring Act, that is to say (set out the offence).

{ } Conniving at Section 68 An act to the prejudice of good order and service discipline Conduct contrary to section 68 of the Armed Forces Act.

{ } Neglect www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 235 [Subsidiary] CIVIl offenCes Section 69 Committing a civil offence contrary to section 69 (1) of the Armed Forces Act, that is to say (here describe the civil offence in such words as sufciently describe the offence).

form III (r.

13 (2)) ILLUSTRATIONS OF CHARGE-SHEETS (i) Charge-Sheet The accused, No.

1234567 Lance-Corporal Peter Ohoo of 1st Bat talion Kenya Ries, a serviceman of the Armed Forces, being subject to the Armed Forces Act under section 7 (a) of that Act, is charged with- 1st Charge stealIng publIC property Contrary to seCtIon 38 (a) of the armed forCes aCt in that he at Nanyuki on 1st January, 1980, stole a pair of binoculars, public property.

2nd Charge (Alternative to 1st charge) reCeIVIng publIC property Contrary to seCtIon 38 (b) of the armed forCes aCt in that he at Nanyuki on 1st January, 1980, received a pair of binoculars, public property, knowing or having reason to believe them to be stolen.

J.

MUTISYA, Lieutenant-Colonel.

st Nanyuki, Commanding 1 Battalion Kenya Ries, 16th January, 1980.

Commanding ofcer of the accused.

To be tried by court martial 1 Nairobi, A.

NGATIA, Brigadier.

st 21 January, 1980.

Commander Kenya Army.

note 1 The order for trial may be signed by a staff ofcer as an ofcer authorized to sign for the Chief of General Staff or the Commander Kenya (Air Force) (Army) (Navy) as the case may besee second illustration Charge-Sheet.

However, such an ofcer must be at least of the rank of major or corresponding rank and must have written authority from the Chief of General Staff personally to sign such orders either on behalf of the Chief of General Staff or on behalf of any Commander.

www.kenyalaw.org CAP236.

199 Armed Forces [Rev.

2009 [Subsidiary] (ii) Charge-Sheet The accused, No.

2345678 Corporal James Munyao, a reservist called out under section 184 of the Armed Forces Act, being subject to that Act under section 7 (b) of that Act and Paul Gachibi formerly No.

3456789 a Private of the 2nd Battalion Kenya Ries, a serviceman of the Armed Forces, then subject to the Armed Forces Act, under section 7 (a) of that Act, now liable to trial by court martial under section 141 of that Act, are charged with- Both accused jointly: 1st Charge CommIttIng a CIVIl offenCe Contrary to seCtIon 69 (1) of the armed forCes aCt, that Is to say assault oCCasIonIng aCtual bodIly harm Contrary to seCtIon 251 of the penal Code in that they at Nairobi on 1st January, 1980, assaulted Julius Mwenda, thereby occasioning him actual bodily harm.

Corporal Munyao only: 2nd Charge usIng VIolenCe agaInst hIs superIor offICer, Contrary to seCtIon 27 (a) of the armed forCes aCt in that he at Nakuru on 2nd January, 1980, used violence against No.

4567890 Sergeant John Kinyoki who had ordered him into arrest by seizing the said sergeant by the jacket and by kicking his legs.

Paul Gachibi only: 3rd Charge usIng InsubordInate language to hIs superIor offICer, Contrary to seCtIon 27(b) of the armed forCes aCt in that he at Nakuru on 2nd January, 1980, said to No.

4567890 Sergeant John Kinyoki, who was then his superior ofcer, when asked by the said Sergeant for his (the accuseds) particulars Push off and nd out for yourself or words to that effect.

J.

NDUNDA, Lieutenant-Colonel.

Nakuru, Commanding 2nd Battalion Kenya Ries, 20th January, 1980.

Commanding ofcer of both accused.

To be tried by court martial A.

MACHARIA, Major1.

Nairobi, An ofcer authorized to sign for 25th January, 1980.

the Chief of Defence Staff.

{ } the Commander, Kenya Army.

notes 1 See note 1 to Charge-Sheet (i) above.

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2009] Armed Forces CAP.

199 237 [Subsidiary] THIRD SCHEDULE (r.

19 (h)) reCord of proCeedIngs, before an approprIate superIor authorIty Accuseds number, rank and name.

unit.

1.

Questions to be put to the accused by the ofcer dealing with the case before the charge is read.

Q.

Have you received a copy of the charge-sheet and abstract of evidence not less than 24 hours ago? A.

.

Q.

Have you had sufcient time to prepare your defence? A.

.

2.

The ofcer dealing with the case shall then read the charge(s) to the accused and ask him the following question- Q.

Have you agreed in writing that the witnesses against you need not give their evidence in person? A.

.

3.

If the accused has agreed in writing that the witnesses against him need not give their evidence in person the ofcer dealing with the case shall read the abstract of evidence to the accused if the accused so requires but, if the accused has not so agreed, the witnesses against him shall give their evidence in person and it shall be recorded on a separate sheet and be attached to this record.

4.

After the abstract of evidence has been read or the witnesses against the accused have given their evidence, as the case may be, the ofcer dealing with the case shall say to the accused- Q.

Do you wish to give evidence on oath or to make or hand in a statement without being sworn?Your evidence or statement may deal with the facts of the case, with your character and with matters in mitigation of punishment.

A.

.

Q.

Do you wish to present any other evidence in your defence? A.

.

5.

If the accused elects to give evidence or to make a statement or to call witnesses the evidence for the defence including any statement made by the accused himself shall be recorded on a separate sheet and attached to this record.

The ofcer dealing with the case shall then: (i) consider all the evidence and determine whether the accused is guilty of the offence or not, and (ii) if he determines that the accused is guilty, examine and consider the accuseds record of service.

If he intends to award the punishment of forfeiture of seniority of rank, a ne or stoppages or in the case of a civilian a ne, he shall not an nounce and record his nding unless the accused says in answer to the following question that he will accept his award- Q.

Will you accept my award or do you elect to be tried by court- martial? A.

.

6.

Finding.

Award (Signature, rank and appointment of appropriate superior authority} (Date).

www.kenyalaw.org CAP238.

199 Armed Forces [Rev.

2009 [Subsidiary] FOURTH SCHEDULE Court martIal forms Form I Convening order.

Form II Declarations under rules 101 and 102.

Form III Summons to a witness to attend at a court martial.

Form IV Notices requiring oral evidence to be given in lieu of a statutory declaration.

Form V Record of proceedings of a court martial.

Form VI Findings.

Form VII Record of reconsideration of nding under rule 78 (5).

Form VIII Serving record of accused.

Form IX Record of proceedings on revision under section 110 of the Act.

Form X Conrmation.

Form XI Determination by a conrming ofcer or reviewing authority of a suspended sentence, and direction that sentences are to run concurrently or consecutively.

Form XII Restitution order.

Form XIII Promulgation.

_ form I (r.

21 (a)) CONVENING ORDER ConVenIng order for a Court martIal 1 orders by.

Commanding.

(Place and date).

_ The detail of ofcers as mentioned below will Name, etc., assemble at.

at.

of accused.

.

hours on the.

day.

of ., 19., for the purpose.

of trying by a court martial the accused person(s).

named in the margin.

.

presIdIng offICer.

members3 WaItIng member(s)3 www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 239 Judge adVoCate [Subsidiary] The judge advocate has been appointed by the Chief Justice.

An ofcer of the rank of major or above having suitable quali cations is not in the opinion of the convening ofcer available with due regard to the public service.* The record of the proceedings will be forwarded in an envelope marked condential to.

Signed this.

day of ., 19.

(Signature, rank and appointment of the convening ofcer) or (Signature, rank and appointment of the appropriate staff ofcer) An ofcer authorized to sign for.

(Appointment held by the convening ofcer) * Strike out if not applicable.

notes 1 Insert rank and name of convening ofcer.

2Insert number, rank, name and unit of the accused.

These particulars must agree with his description in the charge-sheet.

3A member or a waiting member should be described by giving his rank,name and unit.

form II (r.

101 (1)) DECLARATIONS UNDER RULES 101 AND 102 1 In the case of 2I (the ofcer who (is) (would be) responsible for convening a court martial to try the accused) (the senior ofcer on the spot) hereby declare that in my opinion the following exigencies of the service, namely.

.

.

render compliance with the following provisions of the Armed Forces Rules of Procedure- (paragraphs (2) and (3) of rule 24) * (rule 18) * (subparagraphs (a), (b), (c) and (d) of rule 24 (4)) * impracticable.

Signed at.

this.

day of., 19.

.

(Signature) *Delete as appropriate.

notes 1Insert number, rank, name and unit of accused.

2 Insert rank, name and appointment of ofcer making the declaration.

www.kenyalaw.org CAP240.

199 Armed Forces [Rev.

2009 [Subsidiary] 1 In the case of I .2 (the ofcer who (is) (would be) responsible for convening a court martial to try the accused) (the 3 senior ofcer on the spot) hereby declare that in my opinion the.

contain(s) information the disclosure of which would or might be directly or indirectly useful to an enemy.

Signed at.

this.

day of ., 19.

(Signature) notes 1 Insert number, rank, name and unit of the accused.

2 Insert rank, name and appointment of ofcer making the declaration.

3 Here indicate the document(s).

form III (r.

89 (3)) SUMMONS TO A WITNESS TO ATTEND AT A COURT MARTIAL 1 To.

Whereas a court martial (has been ordered to assemble at .) (has assembled at .) on the.

.

day of.

19., 2 for the trial of.

: Pursuant to section 228 of the Armed Forces Act and rule 89 of the Armed Forces Rules of Procedure made thereunder you are hereby summoned and required to attend as a witness at the sitting of the said Court at.

on the .day of ., 19 ., at.

oclock in the.noon 3 and to bring with you the documents hereinafter mentioned, viz.:.

.

and so to attend from day to day until you shall be duly discharged: whereof you shall fail at your peril.

Given under my hand at.

on the.

day of ., 19.

.

(Signature, rank, appointment) (An ofcer authorized to convene a court martial) * (President of the Court)* 4.

an ofcer authorized to sign for 5.

an ofcer authorized to convene a court martial.* *Strike out if not applicable.

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2009] Armed Forces CAP.

199 241 notes [Subsidiary] 1 Insert name and address of the person to whom the summons is to be sent.

2 Here enter number, rank, name and unit of the person to be tried.

3 Specify the documents which the witness is to bring.

The words relating to documents should be deleted if not applicable.

4 Insert the appointment of the staff ofcer.

5 Insert appointment of ofcer for whom the staff ofcer is signing.

form IV (r.

100) NOTICES REQUIRING ORAL EVIDENCE TO BE GIVEN IN LIEU OF A STATUTORY DECLARATION notICe by a CommandIng offICer 1 To.

23I.

Commanding.

4 hereby give notice that I require that.

shall give oral evidence in lieu of (his) (her) statutory declaration dated.

at your forthcoming trial by court martial.

.

(Signature and rank) (Commanding Ofcer of the accused) (Date).

notICe by an aCCused (r.

100) 23 To.

Commanding.

1I.

hereby give notice that I require 4 that.

shall give oral evidence in lieu of (his) (her) statutory declaration dated.

at my forthcoming trial by court martial.

.

(Date) (Signature) notes 1 Insert number, rank, name and unit of the accused.

2 Insert rank and name of commanding Ofcer.

3 Insert unit.

4 Insert name of witness.

www.kenyalaw.org CAP242.

199 Armed Forces [Rev.

2009 [Subsidiary] form V (r.

90) RECORD OF PROCEEDINGS OF A COURT MARTIAL Page 1 (A) reCord of proCeedIngs of a Court martIal Proceedings of a court martial held at.

on the.day of ., 19., by order of.(Chief of General Staff) (Commander Kenya (Air Force) (Army) (Navy)).

Dated the .day of ., 19.

presIdent members Judge adVoCate Trial of.

The court comply with rule 25.

2 .not being available owing to.

the presiding ofcer appoints a qualied waiting member to take his place.

The accused is brought before the court.

Prosecutor Defending (ofcer) (counsel).

At hours the trial begins.

The convening order is read in the hearing of the accused, marked .signed by the presiding ofcer and attached to the record.

The names of the presiding ofcer and members of the court are read in the hearing of the accused and they severally answer to their names.

Q.

Do you object to being tried by me as presiding ofcer, or by any of the ofcers whose names you have heard read? A.

2 The proceedings relating to the objection(s) are recorded on pages.

notes 1 Insert number, rank, name and unit of the accused as given in the charge-sheet.

2 Strike out if not applicable.

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2009] Armed Forces CAP.

199 243 [Subsidiary] (B) Page 2 sWearIng The presiding ofcer, members of the court and judge advocate are duly sworn.

The (following) ofcers under instruction (listed on page ) 2 are duly sworn.

2Q.

Do you object toas shorthand writer? A.

.

1.

is duly sworn as shorthand writer.

2Q.

Do you object to.as interpreter? A.

.

is duly sworn as interpreter.

speCIal pleas and obJeCtIons The accused offers a plea to the jurisdiction under rule 35.

The 2 proceedings relating to his plea are recorded on page.

The accused objects to the.charge(s) under rule 36.

The proceedings relating to his objection(s) are recorded on 2 page.

The accused offers a plea(s) in bar of trial under rule 37 in respect of the charge(s).

The proceedings relating to his plea(s) are recorded 2 on page.

The accusedapplies under rule 38 to be tried separately.

The proceedings relating to his application are recorded on 2 page.

The accused applies under rule 39 to have charges and tried separately.

The proceedings relating to his 2 application are recorded on page.

notes 1 If there is an objection the proceedings relating to it should be recorded on a separate numbered page and the fact that this has been done should be recorded in this space with the number of the page.

2 Strike out if not applicable.

(C.

1) Page.

arraIgnment The charge-sheet is read to the accused and he is arraigned on each charge.

The charge-sheet is signed by the presiding ofcer and inserted in the record immediately before this page, as page(s) 1Q.

Are you guilty or not guilty of the rst charge against you, which you have heard read? www.kenyalaw.org CAP244.

199 Armed Forces [Rev.

2009 [Subsidiary] AQ.

Are you guilty or not guilty of the second charge against you 2 which you have heard read? A.

Q.

Are you guilty or not guilty of the third charge against you, 2 which you have heard read? A.

Q.

Are you guilty or not guilty of the fourth charge against you, 2 which you have heard read? AQ.

Are you guilty or not guilty of the fth charge against you, 2 which you have heard read? AQ.

Are you guilty or not guilty of the sixth charge against you, 2 which you have heard read? A The accused pleaded guilty to the charge(s).

Rule 41 is duly complied with in respect of this (these) charge(s).

22 The accuseds pleas to the remaining charges are recorded overleaf.

notes 1 Strike out rst if there is only one charge.

2 Strike out if not applicable.

(C.2) Page.

Q.

Are you guilty or not guilty of the seventh charge against you, 1 which you have heard read? AQ.

Are you guilty or not guilty of the eighth charge against you, 1 which you have heard read? AQ.

Are you guilty or not guilty of the ninth charge against you, 1 which you have heard read? AQ.

Are you guilty or not guilty of the tenth charge against you, 1 which you have heard read? AQ.

Are you guilty or not guilty of the eleventh charge against you, 1 which you have heard read? AQ.

Are you guilty or not guilty of the twelfth charge against you, 1 which you have heard read? A note 1 Strike out if not applicable.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 245 [Subsidiary] (D.1) Page 1 proCeedIng on plea(s) of not guIlty Q.

Do you wish to apply for an adjournment on the ground that any of the rules relating to procedure before trial have not been complied with, and that you have been prejudiced thereby, or on the ground that you have not had sufcient opportunity for preparing your defence? A.

The prosecutor (makes an opening address shortly outlining the facts) (makes an opening address which is read, signed by the presiding ofcer, marked and attached to the record).

notes Remove this page if there are no pleas of not guilty.

If the accused asks for an adjournment, the proceedings relating to his application should, if necessary, be recorded on a separate page and a record made here that this has been done.

(D.

2) Page.

The witnesses for the prosecution are called.

First witness for the 1 Being duly sworn says prosecution.

Continued on page notes When a witness afrms the words having duly afrmed should be substituted for the words being duly sworn, and when a witness is a child who is too young to give evidence on oath the words without being sworn should be substituted for the words being duly sworn.

(D.

3) Page 1 proCeedIngs on plea(s) of not guIlty (continued) The prosecution is closed.

The accused submits under rule 57 that there is no case for him to answer in respect of the charge(s).

The proceedings relating to this submission are recorded on pages www.kenyalaw.org CAP246.

199 Armed Forces [Rev.

2009 [Subsidiary] defenCe Rule 58 is complied with.

Q.

Do you apply to give evidence yourself on oath or do you wish to make a statement without being sworn? A.

.

Q.

Do you intend to call any other person as a witness in your defence? A.

.

Q.

Is he a witness as to fact or to character only? A.

.

(Where the accused intends to call a witness as to fact, other than 2 himself).

2Q.

Do you wish to make an opening address? A.

.

The accused2 (makes an opening address which is summarized below) (hands in a written address which is read, signed by the President, marked.

and attached to the record).

notes 1 Remove the page if there are no pleas of not guilty.

2 Strike out if the accused does not intend to call witness as to fact, other than himself.

(D.4) Page.

1 (Where the accused makes a statement without being sworn).

The accused (makes a statement, which is recorded on page.) (hands in a written statement which is read, marked signed by the presiding ofcer, and attached to the record).

1 (Where evidence on oath is given for the defence).

The witnesses for the defence (including the accused, if sworn are called).

.

.

2 First witness for the being duly sworn says- defence.

Continued on page notes 1 Strike out this paragraph if not applicable.

2 When a witness or the accused afrms, the words having duly afrmed should be substituted for the words being duly sworn and when a witness is a child who is too young to give evidence on oath, the words without being sworn should be substituted for the words being duly sworn.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 247 [Subsidiary] (D.5) Page.

1 proCeedIngs on plea(s) of not guIlty (continued) The (makes a closing address which is summarized on page) (hands in a closing address which is read, marked.,signed by the presiding ofcer, and attached to the record).

The (makes a closing address which is summarized on page) (hands in a closing address which is read, marked .signed by the presiding ofcer, and attached to the record).

The note of the summing-up of the judge advocate is recorded on page.

fIndIng(s) The court close to deliberate on their nding(s).

3 The court nd that the accused.

.is4 announCement of fIndIng(s) The court being re-opened the accused is again brought before them.

The nding(s) (is) (are) read and (with the exception of the nding(s) of 2 not guilty) (is) (are) announced as being subject to conrmation.

proCeedIngs on aCquIttal on all Charges2 The accused is released.

Signed at.

thisday of., 19.

Judge Advocate President notes 1 Strike out this page if not applicable.

2 Strike out if not applicable.

3 Insert number, rank, name and unit of the accused as given on the charge sheet.

4 Set out the nding on each charge in the appropriate form set out in the Fourth Schule to the Rules of Procedure.

(E) Page.

proCeedIngs on plea(s) of guIlty1 2 The accused 3 is found guilty of The nding(s) (is) (are) read in open court and (is) (are) announced as being subject to conrmation.

(The abstract of evidence is read to the court by the prosecutor, marked, signed by the presiding ofcer and attached to the record) (the prosecutor informs the court of the facts contained in the abstract of evidence which is marked signed by the presiding 4 ofcer and attached to the record).

www.kenyalaw.org CAP248.

199 Armed Forces [Rev.

2009 [Subsidiary] notes 1 Strike out this page is not applicable.

2 Insert the number, name, rank and unit of the accused as given on the charge- sheet.

3 Record the nding on each charge of which the accused is found guilty in the appropriate form set out in the Fourth Schedule to the Rules of Procedure.

4 Strike out if not applicable.

If this paragraph is struck out, rule 44 (2) must be complied with.

(F.1) Page proCeedIngs on ConVICtIon NOTE.

F.2 should be completed before F.1, if the accused has pleaded not guilty to all charges.

F.1 should normally be completed before F.2 if the accused has pleaded guilty to any charge but the presiding ofcer may in his discretion complete F.2 before F.1 if there is no danger of the accused making an inconsistent plea.

Q.

Do you wish to give evidence yourself or to call other witnesses as to your character or in mitigation of punishment? A.

The evidence for the defence as to the accuseds character and in mitigation 1 of punishment is recorded on pages Q.

Do you wish to address the court in mitigation of punishment? A.

The.

(makes an address in mitigation of punishment, which is summarized (below) (on page.)) (hands in an address in mitigation of punishment, which is read, marked.

1 ., signed by the presiding ofcer and attached to the record).

The list of offences which the court have, at the request of the accused, agree to take into consideration is read to the accused, signed by him, marked., signed by the presiding ofcer and attached to 2 the record.

Final question addressed to the accused personally.* Q.

Is there anything further that you wish to say to the court?* A.

* The accused makes a statement which is recorded on page* The court close to deliberate on sentence.* *Strike out if F.1 completed before F.2.

notes 1 Strike out this paragraph if not applicable.

2 Strike out this paragraph if the accused has not requested other offences to be taken into consideration.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 249 [Subsidiary] (F.2) Page.

proCeedIngs on ConVICtIon Note.

- F.2 should be completed before F.1 if the accused has pleaded not guilty to all charges.

The prosecutor calls evidence as to the accuseds character and record.

.

is duly sworn Q.

Do you produce the Service Record of the accused? AI produce Q.

Have you compared it with the service books? A.

.

Q.

Do the entries in it correspond with the entries in the service books? A.

The.

is read, marked ,signed by the presiding ofcer and attached to the record.

The accused (declines) (elects) to cross-examine this witness (and the cross-examination is recorded on pages .).

The prosecutor adduces evidence under rule 69 (3) which is recorded on pages .1 Final question addressed to the accused personally.* Q.

Is there anything further you wish to say to the court?* A.

.* The accused makes a statement which is recorded on page.* The court close to deliberate on sentence.* *Strike out if F.2 is completed before F.1 note 1 Strike out this paragraph if the prosecutor does not adduce evidence under rule 69 (3) (G) Page.

1 sentenCe 2 The court sentence the accused.

to3.

www.kenyalaw.org CAP250.

199 Armed Forces [Rev.

2009 [Subsidiary] announCement of sentenCe The court being re-opened, the accused is again brought before them.

The sentence (and recommendation to mercy)4 (is) (are) announced in open court; the sentence is announced as being subject to conrmation.

The presiding ofcer announces that the trial is concluded.

Signed atthis.day of,19 Judge Advocate Presiding Ofcer notes 1 Remove this page is not applicable.

2 Insert accuseds rank, name, etc., as given on the charge-sheet.

3 Record the sentence in the appropriate form of words set out in the Fifth Schedule to the Rules of Procedure.

Any recommendation to mercy (see rule 72 (4)), restitution order (see section 104 of the Act), or order determining a suspended sentence and directing whether the sentences are to run concurrently or consecutively (see section 135 of the Act) made by the court, should be entered on the record immediately after the sentence.

4 Strike out if not applicable.

(H) Page.

1 ConfIrmatIon note 1 For minutes of conrmation see Fourth Schedule to Rules of Procedure.

Promulgation should be recorded immediately below the minute of conrmation in accordance with rule 93 (7) (b).

form VI (r.

65 (3)) fIndIngs Acquittal on all Charges Not guilty of (the charge) (all the charges).

_ Not guilty of (the charge) (all the charges), and honourably acquit him thereof.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 251 [Subsidiary] Acquittal on some but not all Charges 1 Not guilty of the.

charge(s) but is guilty of the 1 charge(s).

_1 Not guilty of the.

charge(s) and honourably 1 acquit him thereof but is guilty of the.

charges(s).

Conviction on all Charges Guilty of (the charge) (all the charges).

Special Findings 1 Guilty of the.

charge (with the exception of the words 2 ) (with the exception that 2.

).

_3 Not guilty of the offence charged but is guilty of.

No Finding on Alternative Charge Guilty of thecharge; the court record no nding on the (alternative charge).

Where the accused is unt to stand his trial by reason of insanity.

By reason of insanity unt to stand his trial.

Accused guilty but insane at the time when the offence was committed.

Guilty but insane.

notes 1 Insert the number of the charge or charges as numbered in the charge-sheet.

2 Specify the exception in detail.

This form is appropriate when a special nding is made under rule 64 (3).

3 State the offence of which the accused is found guilty.

This form is applicable when a special nding is made under section 96 (2), (5) or (6) of the Act.

www.kenyalaw.org CAP252.

199 Armed Forces [Rev.

2009 [Subsidiary] form VII (r.

78 (5) (c)) RECORD OF RECONSIDERATION OF FINDING The Judge Advocate advises the court that the nding(s) on the 1charge(s) (is) (are) contrary to the law relating to the case, and that in his opinion the following nding(s) (is) (are) open to them- 2 The Court are closed for reconsideration of nding.

3 The Court on reconsideration nd that the accused is.

The nding(s) on reconsideration (is) (are) read in open court and (with the exception of the nding(s) of not guilty 4 ) (is) (are) announced as being subject to conrmation.

notes 1 Insert the number of charge as numbered in the charge-sheet.

2 Insert the advice given by the judge advocate.

3 Set out the nding(s) of the court in the appropriate form(s).

4 Strike out the words relating to ndings of not guilty if there is no such nding.

form VIII (r.

69 (2)) SERVICE RECORD OF ACCUSED No.

.

Rank.

Name.

Unit.

Trade.

1.

The date of his enlistment is.

and he was commissioned on.

2.

He is serving on a (Insert nature and length of engagement) 3.

His present age is.

4.

He is married unmarried and has children under the age of 16 years.

divorced { } widowed www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 253 [Subsidiary] 5.

His gross basic rate of pay (including additional pay) payable on a continuous basis is but he is.

(insert forfeitures, deductions and allotments affecting his pay) 6.

The service which he is allowed to reckon towards discharge or transfer to reserve is 7.

He is entitled to reckon service for the purpose of determining his pension and/or gratuity, etc.

8.

He is entitled to the following decorations or awards.

and.

acts of gallantry or distinguished conduct by him are recorded in his conduct sheets.

9.

He holds the substantive rank of.

with seniority from.

He continously since .held the acting rank of 10.

The highest rank for which he is qualied is.

11.

He has been awaiting his trial for days of which.

days were spent in civil custody.

.

days were spent in close arrest.

and.

days were spent in open arrest.

12.

He is not under sentence at the present time.

OR At the present time he is under sentence of beginning on the day of , 19.

but suspended on the.

day of ., 19.

and not yet put into operation again day of { } Put into operation again on the ., 19 13.

According to his conduct sheets he has been found guilty by his commanding ofcer, or by the commandant of a service establishment, of the following offences- Offence In last Since 12 months Enlistment times times times times times times OR There are no entries in his conduct sheets.

www.kenyalaw.org CAP254.

199 Armed Forces [Rev.

2009 [Subsidiary] out court, set are emitted emitted civil a by authority (this should not include punishment for good conduct) service Punishment r automatically r his.

superior during opriate guilty appropriate an d of appr found by Sentence of the court awar superior authority been guilty has he found which been or has of he ges upon which found consideration martial, which of Char guilty and offences taken into court a fences by of and d by convicted courts been such opriate superior authority has by he Date and place of trial or summary awar appr that the particulars in this Schedule are true extracts from the service books in my custody which TIFY of consideration CER fences into of of taken opriate superior authority fences Description of court I HEREBY Schedule of below- appr 14.

Signed this.

day of ., 19.

Signature (Name, rank and appointment) www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 255 [Subsidiary] form IX (r.94 (1)) RECORD OF PROCEEDINGS ON REVISION UNDER SECTION 110 OF THE ACT At .1 on the.

day of ., 19.

at.

hours the court reassembled by order of 2.

the conrming ofcer for the purpose of reconsidering 3 their nding(s) on the charge(s).

4 Present.

The order directing the reassembly of the court and giving the reasons therefor is read, marked ., signed by the presiding ofcer and attached to the record.

The court having considered the observation of the conrming ofcer and the whole of the record of the proceedings do now revoke their nding(s) on the 35.

charge(s) and nd that the accused.

is 6.

.

7 and (adhere to their sentence) (sentence the accused to.

.

in substitution for the original sentence).

or The court having considered the observation of the conrming ofcer 3 respectfully adhere to their nding(s) on the.

charge(s) 5 (and to their sentence) (but sentence the accused.

7 to.

in substitution for the original sentence).

or The court having considered the observation of the conrming ofcer and the whole of the record of the proceedings do now revoke their 3 nding(s) on the.

charge(s) and nd the accused 5.

not guilty of (that) (those) charge(s).

1 Signed at.

this.

day of ., 19.

.

Judge Advocate Presiding Ofcer www.kenyalaw.org CAP256.

199 Armed Forces [Rev.

2009 [Subsidiary] notes 1 Insert the name of the place.

2 Insert the rank, appointment, etc.

of the conrming ofcer.

3 th Specify the number(s) of the charge(s) concerned, e.g., the 5 charge.

4 Give the names of the presiding ofcer and members of the court who are present.

If the presiding ofcer is absent the senior members must report to the conrming ofcer.

If a member is absent and the court is thereby reduced below the legal minimum the presiding ofcer must report to the conrming ofcer.

5 Insert the accuseds number, rank, name and unit as given in the charge-sheet.

6 Set out the nding in the appropriate form set out in the Fourth Schedule.

7 Set out the new sentence in accordance with the appropriate form set out in the Fifth Schedule.

form X (r.

93 (1)) CONFIRMATION Note.

These forms are for guidance only and do not constitute an exhaustive list of all the possible variations and should be adapted to the circumstances of each case.

_ Conrmed.

I conrm the courts nding(s), sentence and order under section 104 1 of the Armed Forces Act, but (remit ) 2 (commute .).

_I conrm the courts nding(s), sentence and order under section 104 of the Armed Forces Act, but mitigate the sentence so that it shall be as follows- 3_I vary the sentence so that it shall be as follows.

4.

and conrm the nding and sentence as so varied.

_I conrm the nding(s) and sentence but (postpone the carrying out of 5 the sentence of.

until ) (suspend the sentence of .).

_I conrm the nding(s) but substitute the sentence of 6 for the sentence of the court.

_I substitute a nding of 1 for the nding of the court and conrm the sentence but (remit.

) 2 (commute ).

_I substitute a nding of for the nding of the court on the charge and conrm the nding(s) on the other charge(s) and the sentence.

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2009] Armed Forces CAP.

199 257 [Subsidiary] 7 Not conrmed (on the grounds that .).

_I conrm the nding(s) of the court on the.

charge(s) but do not conrm their nding(s) on the.

7 charge(s) (on the grounds that.

).

I conrm the 12 sentence but (remit ) (commute ).

_ 3I refer the nding(s) and sentence to for conrmation.

_I conrm the nding(s) of the court on the charge(s) and refer the nding(s) on the charge(s) 8 and the sentence to for conrmation.

_I conrm the nding(s) of the court but refer the sentence to .8 for conrmation.

_ (r.

95 (3)) (The record) (Part of the record) of the proceedings of the trial by court martial which tried.

at.

on the day of , 19, having been lost, I do not conrm the nding(s) of the court.

_ Signed at.

this.

day of ., 19 (Signature, rank and appointment of Conrming Ofcer) notes 1 State what part of the sentence is remitted.

2 State what the sentence is commuted to.

3 This form of words may be used when it is impracticable to use either remit or commute.

4 This form of words is appropriate when the court has expressed the sentence informally or incorrectly and the conrming ofcer desires to put it into the correct legal form.

5 Insert the date or event to which the carrying out of the sentence is postponed.

6 This form of words is appropriate when the court have passed an illegal sentence on the accused and the conrming ofcer desires to substitute a legal sentence.

7 Where a conrming ofcer withholds conrmation because he disapproves of the decision of the court on a plea to the jurisdiction or in bar of trial or on any conrmation for this reason.

In other cases the conrming ofcer is not bound to give his reasons.

8 Insert the appointment of the higher authority to whom the matter is to be referred.

9 The rank and appointment of the conrming ofcer should be clearly stated after or under his signature.

www.kenyalaw.org CAP258.

199 Armed Forces [Rev.

2009 [Subsidiary] form XI DETERMINATION BY A REVIEWING AUTHORITY OF A SUSPENDED SENTENCE AND DIRECTION THAT SENTENCES ARE 1 TO RUN CONCURRENTLY OR CONSECUTIVELY UNDER SECTION 135 (6) OF THE ACT I.

the reviewing authority hereby order the accused to be committed to imprisonment under the sentence passed on him by the court martial held at on the day of ., 19., and direct that that sentence and the sentence passed on the accused by (this court martial) (court martial held at.

on.

day of ., 19.) shall run (concurrently) (consecutively).

Dated ., 19 (Signature) note 1 When the determination is made by the reviewing authority it should follow the minute of promulgation.

form XII RESTITUTION ORDER1 UNDER SECTION 104 OF THE ACT In accordance with subsection of section 104 of the Armed Forces Act, I23 hereby order that.

be (delivered) (paid) to.

Dated ., 19 (Signature) Conrming Ofcer.* Reviewing Authority.* *Strike out if not applicable.

notes 1(a) When the conrming ofcer is making the order this form of words should be inserted in the record of the proceedings of the court martial in the conrming ofcers minute of conrmation; when made by a reviewing authority it should follow the minute of promulgation.

(b) Where the conditions set out in section 104 (10) of the Act are satised, the ofcer or authority making the order may add at the end of the order: and I direct that this order shall be carried out forthwith.

2.

Insert rank, name and appointment of conrming ofcer or reviewing authority as the case may be.

3.

Insert description of article or amount of money, as the case may be.

4.

Insert name of person to whom restitution is being made.

from XIII (r.

93 (8)) PROMULGATION Promulgated and extracts taken at (place).

this.

day of ., 19.

(Signature, rank and appointment of Ofcer making the promulgation) www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 259 [Subsidiary] FIFTH SCHEDULE sentenCes Part I.

Sentences.

Part II.

Restitution Order.

_ PART IENTENCE (r.

72 (1)) Note.- The words in the margin should be entered in the right-hand margin of the record of the proceedings of a court martial opposite the record of the sentence.

Ofcers To suffer death.

Death.

_ To be imprisoned for.

Imprisonment.

_ To be dismissed from the armed forces.

Dismissed.

_ To be reduced to the rank of Reduction in rank.

.

_ To take seniority in the rank of Forfeiture of.

as if his appointment seniority of rank.

to that rank bore date the day of , 19 _ To be ned Fine.

_ To be (severely reprimanded) Severe reprimand or (reprimanded).

reprimand.

_ To be admonished.

Admonition.

_ To be put under stoppages of Stoppages.

pay until he has made good the sum of 1 in 2 respect of www.kenyalaw.org CAP260.

199 Armed Forces [Rev.

2009 [Subsidiary] Servicemen To suffer death.

Death.

To be imprisoned for Imprisonment (and reduction (and to be reduced to the ranks).

to the ranks).

To be dismissed from the armed forces.

Dismissal.

To undergo active service punishment Active service punishment.

for days.

To be reduced (to the ranks) (to the or reduction in rank.

rank of .) or reduction in rank.

To take seniority in the rank of.

Forfeiture of seniority of as is his appointment to that rank bore rank.

date the.

day of , 19.

To be ned Fine.

To be (severely reprimanded) Severe reprimand or (reprimanded).

reprimand.

To be admonished.

Admonition.

To be put under stoppages of pay Stoppages.

until he has made good the sum of 1.

in respect 2 of.

notes 1 Insert the amount which has to be made good by stoppages in respect of the charge or article specied.

2 Specify the charge or article in respect of which the stoppages is to be imposed.

If stoppages are being imposed in respect of more than one charge or article the amount which has to be made good in respect of each charge or article must be stated separately.

PART IIRESTITUTION ORDER1 1.

By the Commanding Ofcer or Appropriate Superior Authority In accordance with subsection.

of section 104 of the Armed Forces Act, I,.

2 hereby order that 3 be (delivered) (paid) to .4.

.

(Commanding Ofcer) (Appropriate Superior Authority) www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 261 [Subsidiary] 2.

By the Court In accordance with subsection.

of section 104 of the 3 Armed Forces Act, the court hereby order that.

be (delivered) (paid) to notes 1(a) This form of words should be inserted in the record of the proceedings.

(b) Where the conditions set out in section 104 (10) of the Act are satised, the commanding ofcer or the court may add at the end of the order: and direct that this order shall be carried out forthwith.

2 Insert name and rank of commanding ofcer, or appropriate superior authority.

3 Insert the description of the article or the amount of money as the case may be.

4 Insert name of person to whom restitution is to be made.

5 Delete as required.

SIXTH SCHEDULE oaths and affIrmatIons PART I.

Oaths at Investigations by Commanding ofcers and Appropriate Superior Authorities.

PART II.

Oaths at Courts Martial.

PART III.

Manner of Administering the Oath.

PART IV.

Solemn Afrmations.

_ PART IOATHS AT INVESTIGATIONS BY COMMANDING OFFICERS AND APPROPRIATE SUPERIOR AUTHORITIES (r.

33 (1)) Interpreter I swear by Almighty God that I will to the best of my ability truly interpret and translate, as I shall be required to do, touching the matter being investigated.

Witness I swear by Almighty God that the evidence which I shall give at this investigation shall be the truth, the whole truth and nothing but the truth.

PART IIOATHS AT COURTS MARTIAL (r.

33 (1)) Presiding Ofcer and Members I swear by Almighty God that I will well and truly try the (accused) (accused persons) before the court according to the evidence, and that I will duly administer justice according to the Armed Forces Act, without partiality, favour or affection, and I do further swear that I will not on any account at www.kenyalaw.org CAP262.

199 Armed Forces [Rev.

2009 [Subsidiary] any time whatsoever disclose or discover the vote or opinion of the presiding ofcer or any member of this court martial, unless thereunto required in due course of law.

Judge Advocate I swear by Almighty God that I will to the best of my ability carry out the duties of judge Advocate in accordance with the Armed Forces Act, and the rules made there under and without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion on any matter of the presiding ofcer or any member of this court martial, unless thereunto required in due course of law.

Ofcer under Instruction I swear by Almighty God that I will not on any account, at any time whatsoever disclose or discover the vote or opinion of the presiding ofcer or any member of this court martial, unless thereunto required in due course of law.

Shorthand Writer I swear by Almighty God that I will truly take down to the best of my power the evidence to be given to this court martial and such other matters as may be required, and will, when required, deliver to the court a true transcript of the same.

Interpreter I swear by Almighty God that I will to the best of my ability truly interpret and translate, as I shall be required to do, touching the matter before this court martial.

Witness I swear by Almighty God that the evidence which I shall give before this court martial shall be the truth, the whole truth, and nothing but the truth.

PART IIIMANNER OF ADMINISTERING THE OATH Persons taking the oath shall say to or repeat after the person administering the oath the words of the oath with such variations in the opening words of the oath as the person taking the oath shall have declared to be effective to make the oath binding on his conscience in accordance with his religious beliefs.

PART IVSOLEMN AFFIRMATIONS The person making a solemn afrmation shall say to or repeat after the person administering the solemn afrmation the words of the appropriate form of oath except that for the words I swear by Almighty God he shall substitute the words I (name in full), do solemnly, sincerely and truly declare and afrm and for the word swear wherever it occurs, the words solemnly, sincerely and truly declare and afrm.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 263 [Subsidiary] SEVENTH SCHEDULE petItIons PART I.

Petitions.

PART II.

List of Persons to whom Petitions may be Presented under rule 99.

_ PART IPETITIONS (r.

99 (1)) Petition to conrming ofcer (before conrmation) under section 106 of the Act and rule 99 (1).

to the ConfIrmIng offICer 1I having been convicted by court 23 martial on at and having been sentenced to.

hereby petition against the nding(s) on the charge(s) 4 (and the sentence) on the following grounds- Signed .8 Date 5 Petition to the reviewing authority (after conrmation and promulgation), under section 106 of the Act and rule 99 (2).

(r.

99 (2)) To .61I having been convicted by court martial on 2 at 3 and having had the nding(s) and sentence promulgated to me on 7.

hereby petition against the nding(s) on the charge(s)4 (and the sentence) on the following grounds- 8 Signed Date Petition to the commander (after conrmation and promulgation), under section 112 of the Act and rule 99(3).

www.kenyalaw.org CAP264.

199 Armed Forces [Rev.

2009 [Subsidiary] to the Commander I.

1 having been convicted by court 23 martial on.

at and having been sentenced to.

and having had the nding(s) and sentence promulgated to me on hereby petition for reconsideration of the sentence on the following grounds- Signed Date notes 1 Insert the accuseds number, rank, name and unit.

2 Insert the date when accused was convicted.

3 Insert the place where the trial was held.

4The words the nding(s) on the charge(s) should be omitted if the accused is only petitioning against sentence.

5 The reviewing authority will be either the Defense Council or any ofcer superior in command to the conrming ofcer; see section 111 (2) of the Act.

6 Here state the reviewing authority whom it is desired to petition.

7 Insert the date when the ndings and sentence were promulgated.

8 Petitions should be signed by the accused personally but may if necessary, be signed on his behalf by his representative.

9 Insert Kenya Air force, Kenya Army or Kenya Navy as the case may be.

PART IILIST OF PERSON TO WHOM PETITIONS MAY BE PRESENTED (r.

99 (4)) Circumstances Person to whom a petition may be presented 1.

Petitioner serving in or in Captain of the ship.

custody on board a ship of the Kenya Navy.

2.

Petitioner in custody on Ofcer commanding forces on board a ship other than a board.

ship of the Kenya Navy.

3.

Petitioner serving with a Ofcer commanding the unit.

unit of the Armed forces.

4.

Petitioner conned in a Ofcer in charge of the prison.

civil prison.

5.

Petitioner who is a civilian Ofcer commanding at the nearest and is outside Kenya.

Armed Forces headquarters.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 265 [Subsidiary] THE ARMED FORCES (COURT MARTIAL APPEALS) L.N.

255/1969.

RULES 1.

These Rules may be cited as the Armed Forces (Court Martial Appeals) Citation.

Rules.

2.

In these Rules, except where the context otherwise requires Interpretation.

court means the High Court; exhibits means all documents and things which have been produced and used in evidence at a trial by court martial, whether they are attached to the proceedings of the court martial or not; Registrar means the Registrar of the High Court, and includes a senior deputy registrar, a deputy registrar, and a district registrar of the High Court.

3.

An application by a person convicted for leave to appeal to the court Application for leave under section 116 of the Act shall be in Form 1 in the Schedule, and shall contain to appeal.

answers to the questions and comply with the requirements set forth therein.

4.

A notice of application to the High Court for an extension of time Extension of time.

within which to make application for leave to appeal shall be in Form 2 in the Schedule, and shall be sent to the Registrar.

5.

An appeal by the AttorneyGeneral under section 115 (2) of the Act Form of appeal by shall be in Form 3 in the Schedule.

AttorneyGeneral.

6.

(1) A person convicted, at any time after he has made application for Abandonment of leave to appeal, or the Attorney-General, may abandon his appeal by giving to appeal.

the Registrar notice of abandonment thereof in Form 4 in the Schedule.

(2) Where it is contended that the person convicted is insane a notice of abandonment may be given and signed by his legal representative.

(3) Subject to paragraph (2), a notice of abandonment shall be signed by the person convicted himself.

7.

(1) An application for leave to appeal and any notice required or Notices.

authorized to be given to the court under these Rules, other than a notice of abandonment, shall be signed by the person convicted or by his legal representative, or by the Attorney-General, as the case may be.

(2) An application for leave to appeal and any notice required or authorized to be given to the court under these Rules shall be addressed to the Registrar.

(3) Where a person convicted, or any other person required or authorized to make an application or give any notice for the purpose of these Rules, is unable to write, he may afx his mark thereto in the presence of witness, who www.kenyalaw.org CAP266.

199 Armed Forces [Rev.

2009 [Subsidiary] shall attest the mark, and thereupon such application or notice shall be deemed to be signed by that person.

Court martial 8.

(1) The Registrar, on receipt of an application for leave to appeal, proceedings.

shall request the Commander to forward to him the proceedings of the court martial and any petition presented by the person convicted praying that his conviction be quashed.

(2)After an application is nally refused or is withdrawn, or the appeal is determined or abandoned, the proceedings of the court martial and any petition shall, subject to any order which the court may make, be returned by the Registrar to the Commander.

(3) A copy of any document which is required for the use of the court shall be made by such person and in such manner as the Registrar may direct.

Copies of 9.

(1) At any time after the Registrar has received an application for leave proceedings.

to appeal, the person convicted or the Attorney-General may, subject to these Rules, obtain from the Registrar copies of any document in the possession of the Registrar for the purpose of the appeal.

(2) Copies of any document shall be supplied by the Registrar at the charges following- (a) for making and certifying a copy of any document or certifying a copy not prepared by court or court martial Sh.

cts.

(i) for rst folio or part thereof.

.

5 00 (ii) for each subsequent folio or part thereof.

.

.

.

.

2 50 (b) for making uncertied copy of any document Sh.

cts (i) for rst four folios or part thereof.

.

.

3 00 (ii) for each subsequent folio or part thereof.

.

.

.

.

.

.

.

75 Provided that, if such uncertied copy later requires to be certied, the certifying fees shall be the difference between fees and the fees under subparagraph (a); (c) for making copies by photostat process.

Actual cost Documents and 10.

(1) The Registrar may, on application made to him by the person exhibits.

convicted or by the Attorney-General, or where he considers it necessary for the proper determination of any appeal or application, and shall, where so directed by the court, obtain and keep available for use by the court any document or exhibit; and, subject to rule 11, pending the determination of the appeal or www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 267 application such document and exhibit and the proceedings of the court martial [Subsidiary] shall be open, as and when the Registrar may arrange, for inspection by the person convicted or by the Attorney-General.

(2) Subject to rule 11, the court may, at any stage of an appeal, whenever it thinks it necessary or expedient in the interests of justice so to do, order any document, exhibit or other thing connected with the proceedings to be produced to the Registrar or before the court by any person having the custody or control thereof.

(3) After an application is nally refused or is withdrawn, or the appeal is determined or abandoned, documents and exhibits shall, subject to any order which the court may make, be returned by the Registrar to the person who produced or forwarded them.

(4) Service of any order made under this rule shall be personal service unless the court otherwise orders.

11.

If the Minister certies that, for reasons of security, the whole or part Security of of the proceedings, or any document, exhibit or other thing, ought not to be documents, etc.

disclosed otherwise than to the court, or ought only to be disclosed subject to certain conditions specied by the person who so certies, the Registrar shall, notwithstanding these Rules, not permit inspection nor supply a copy thereof without an order of the court, which may direct upon what conditions, if any, inspection shall be permitted or a copy supplied.

12.

Nothing in these Rules shall affect any rule of law which authorizes Public interest.

or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

13.

(1) An order of the court that a witness shall attend and be examined Witnesses.

shall be in Form 5 in the Schedule, and shall specify the time and place at which such witness shall attend.

(2) Such an order may be made on the application at any time of the person convicted or of the Attorney-General, but if the person convicted is in custody and is not legally represented the application shall be made by him in Form 6 in the Schedule.

(3) Service of any order required by this rule to be given to any witness shall be personal service, unless the court otherwise orders.

14.

(1) The Registrar shall keep a register of all cases in which he Register and cause receives an application for leave to appeal under the Act and such register shall list.

be open for public inspection in such place and at such hours as the Registrar determines.

(2) The Registrar shall also publish a list of appeals and applications which the court may consider on the days on which the court, as constituted for the hearing and determination of appeals under the Act, shall sit; and shall cause such list to be published at such times and in such places and in such a www.kenyalaw.org CAP268.

199 Armed Forces [Rev.

2009 [Subsidiary] manner as he, subject to the approval of the court, thinks convenient for giving due notice to any parties interested therein of the hearing of the cases in such list by the court.

Presence of person 15 (1) Where the person convicted is in custody and has obtained the leave convicted at hearing.

of the court to be present at the hearing and determination of his application or appeal, or at any stage thereof, the Registrar shall notify the person convicted, the person in charge of the place where he is conned, and the Commander or the Commissioner of Prisons, as the case may be, of the probable date thereof.

(2) The court may direct that the person convicted be brought before the court in any case where in the opinion of the court his presence is advisable for the proper determination of the appeal.

Notifying results of 16.

(1) On the nal determination of any appeal or of any application, appeals, etc.

the Registrar shall, unless it appears to him unnecessary to do so, give to the person convicted, the Attorney-General and, where the person convinced is in custody, the person in charge of the place where he is conned written notice of the determination.

(2) In the case of an appeal against a conviction involving sentence of death, the Registrar shall, on receiving an application for leave to appeal, send a copy thereof to the President and, where leave to appeal is refused and on the nal determination of an appeal, shall forthwith give written notice to the person convicted and to the President and to the person in charge of the place the person convicted is conned.

Restitution order.

17.

(1) Where any property or money has been ordered to be restored or handed over under section 104 of the Act, and the operation of the order has been suspended under subsection (9) of that section, unless the property is in the custody of the Registrar the authority which made the order shall cause it to be kept in safe custody or the period during which the operation of the order is suspended.

(2) Any person in whose favour or against whom an order has been made under section 104 of this Act, and with the leave of the court any other person, shall, on the nal hearing by the court of the appeal against the conviction on which such order was made, be entitled to have any representations that he may make considered by the court before any order is made under subsection (9) (ii) of that section.

Right of audience.

18.

In any proceedings before the court, any of the following persons may address the court- (a) an advocate retained by or on behalf of the person convicted; (b) the person convicted, if he has the leave of the court; and (c ) the Attorney-General or his representative.

Non-compliance with 19.

(1) Non-compliance with these Rules by a person convicted shall not prevent the further prosecution of his appeal, unless the court otherwise www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 269 directs.

Rules.

[Subsidiary] (2) The Registrar shall forthwith notify the person convicted, or the Attorney-General, as the case may be, of directions given by the court under this rule, where he was not present at the time when such directions were given.

20.

The performance of any duty imposed upon any person under Part Enforcement of IX of the Act or these Rules may be enforced by order of the court.

duties.

SCHEDULE Form 1 (r.

3) applICatIon for leaVe to appeal agaInst ConVICtIon or sentenCe To The Registrar of the High Court, Nairobi, Kenya.

Name of person convicted.

(a) If person Number .UnitRank.

convicted not in Convicted by court martial held at.

custody, insert his Offence of which convicted.

address.

Sentence.

(b) Set out clearly Date when conviction pronounced or nding promulgated.

and concisely the Date when petition presented reasons why you Date when notied that petition refused.

consider your Name of prison or place of detention (a).

conviction should be quashed or the sentence varied.

I, the above-named person, hereby apply for leave to appeal to the High (c) This notice Court against my [conviction] [and] [sentence] on the following grounds (b) must be signed by the person.

convicted or his legal representative.

If the (Signed) (c) person convicted cannot write he must afx his mark in the presence of a witness.

The name and address of such attesting witness must be given.

www.kenyalaw.org CAP270.

199 Armed Forces [Rev.

2009 [Subsidiary] Dated the (d) day of ., 19 (d) If this form is lodged more than forty days after the person convicted has become entitled to apply for leave to appeal he must also ll in Form 2 and send it with this form.

(e) The person Questions (e) Answers convicted must 1.

Is any advocate or other person answer these Now acting for you? questions.

If so, give his name and address.

2.

Do you desire to be present when the High Court considers your appeal? 3.

Do you desire to apply for leave to call any witness on your appeal? If your answer to this question is Yes, you must ll in Form 6 and send it with this form Form 2 (r.

4) notICe of applICatIon for eXtensIon of the WIthIn WhICh to apply for leaVe to appeal agaInst ConVICtIon and/or sentenCe To The Registrar of the High Court, Nairobi, Kenya.

(a) Insert name, I, (a).

having been convicted number, rank and of the offence of (b.

unit.

.

(b) State shortly the and sentenced to.

by court offence or offences.

martial held at (c) Set out address on the , 19., in full.

and being now at (c) ., (d) Here set out give you notice that I hereby apply to the High Court for an extension of the time within clearly and concisely which I may give notice of application for leave to appeal, on the grounds following the reasons for the (d).

delay in giving notice, and the www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 271 [Subsidiary] grounds on which Dated the.

day of , 19 you submit the High Court should extend (Signed) (e) the time.

(e) This notice [Form 1 must be lled up and sent with this notice to the Registrar.] must be signed by the person convicted or his legal representative.

If the person convicted cannot write he must afx his mark in the presence of a witness.

The name and address of such attesting witness must be given.

_ Form 3 (r.

5) appeal by the attorney-general agaInst a persons aCquIttal or sentenCe To The Registrar of the High Court, Nairobi, Kenya.

Name of person acquitted or sentenced.

Number Unit.

Rank.

Tried by court martial held at.

.

Offence for which tried.

Acquitted [or] sentenced to.

Date when acquitted or sentenced or nding promulgated.

(a) If person.

Name of prison or place of detention (a).

convinced not in custody, insert his The Attorney-General hereby appeals against the acquittal [or] sentence address.

specied above of the person named above, on the following grounds Dated the.

day of ., 19.

Attorney-General www.kenyalaw.org CAP272.

199 Armed Forces [Rev.

2009 [Subsidiary] Form 4 (r.

6) notICe of abandonment of appeal To The Registrar of the High Court, Nairobi, Kenya.

Name of person convicted.

Number Unit Rank.

Convicted by court martial held at.

Offence of which convicted.

(a) If person Name of prison or place of detention (a).

convicted not in or present address of person convicted.

custody, insert his.

address.

(b) Delete as I, the above-named person, having been convicted and sentenced and appropriate.

having applied to the Registrar for leave to appeal (b) I, ., Attorney-General (b) HEREBY GIVE NOTICE that I do not intend to proceed with the appeal in this matter, as from the date hereof.

Dated the.

day of ., 19.

(c) If this notice is (Signed)(c) presented by or on behalf of a person convicted it must be This notice was signed by the person convicted on the day above stated signed by him in the in my presence.

presence of a witness.

Signature of Witness.

Address of Witness.

Occupation of Witness.

_ Form 5 (r.

13) order to WItness to attend for eXamInatIon To The Registrar of the High Court, Nairobi, Kenya.

www.kenyalaw.org Rev.

2009] Armed Forces CAP.

199 273 [Subsidiary] To (a).

(a) Name and address of witness.

WHEREAS, on good cause shown to the High Court of Kenya, you have been ordered to attend and be examined as a witness [before the court (b) Name, number upon the appeal of (b) .] (c) [before the court upon an appeal brought and rank of by the Attorney-General following the proceedings at the court martial of person convicted (b).] (c) or acquitted as appropriate.

I NOW give you notice to attend before the court at.

(c) Delete as .oclock in the.

noon on the.day of appropriate.

, 19, at (d) (d) Insert location of court.

I ALSO REQUIRE YOU to have with you at the said time and place the following books, papers and other things relating to the appeal- Dated the.

day of ., 19 Registrar of the High Court _ Form 6 (r.

13) applICatIon to Call further eVIdenCe made by a person ConVIC - ed WhIlst In Custody To The Registrar of the High Court, Nairobi, Kenya.

I, (a) having applied for leave (a) Insert name, to appeal to the High Court, hereby give notice that I desire the court to order number, rank and the following witness(es) to attend before the court and be examined on my unit.

behalf.

Dated the.

day of , 19.

(Signed).

You are requested to complete the following form (b) (b) If more than one witness is desired, 1.

Name and address of witness.

the information must.

be given in respect of 2.

Was the witness examined at your court martial? each witness.

3.

If not, state the reason why he was not examined.

.

4.

State shortly the evidence you think he can give.

www.kenyalaw.org.