Armed Forces Act Cap 199 - 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 2 CAP.

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199 3 CHAPTER 199 Section 23Looting.

THE ARMED FORCES ACT 24Offences against civil population.

ARRANGEMENT OF SECTIONS 25 Mutiny.

Mutiny and Insurbodination part IprelImInary 26Failure to suppress mutiny.

27Insubordinate behaviour.

Section 28Disobedience to particular orders.

1Short title.

29Obstruction of provost ofcers, etc.

2Interpretation.

30Disobedience to standing orders.

part IIestablIshment and Command of armed forCes Desertion and Absence without Leave 31Desertion.

3Establishment and employment of armed forces.

32Absence without leave.

4Constitution of armed forces.

33Assisting desertion or absence without leave.

5Defence Council, Chief of General Staff and Commanders.

34Failure to perform military duties.

6Command of armed forces.

Malingering, Drunkenness and Quarrelling part IIIapplICatIon of aCt 35Malingering.

36Drunkenness.

7 Persons subject to Act.

37Quarrelling.

8Application of Act to constabulary.

Offences relating to Property 9Application of Act to civilians.

38Offences concerning public property.

part IVCo-operatIon WIth forCes of other CountrIes 39Offences concerning property of persons subject to Act.

40Loss or hazarding of aircraft, ship or vehicle.

10Attachment to other forces and employment 41Improper carriage of goods.

outside Kenya.

42Miscellaneous offences relating to property.

11Secondment or attachment to armed forces.

Offences relating to Billeting and Requisitioning of Vehicles 12Saving for members of British forces.

43Billeting offences.

13Co-operation with other forces.

44Offences in relation to requisitioning of vehicles.

part VserVICe offenCes Flying Offences Treachery, Cowardice and Offences Arising out of Service 45Dangerous ying.

14Aiding enemy.

46Low ying.

15Communication with enemy.

47Annoyance by ying.

16Misconduct in action by person in command.

Offences relating to Custody 17Misconduct in action by others.

48Irregular arrest and connement.

18Cowardice.

49Permitting escape, and unlawful release of prisoners.

19Neglect of duty.

50Resistance to arrest.

20Offences against morale.

51Escape from custody.

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

22Offences by or in relation to sentries, etc.

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199 5 Section Section Offences concerning Court Martial and other Authorities 80Commanding ofcer to investigate all charges.

52Offences concerning courts martial.

81Charges against ofcers.

53False evidence.

82Charges against servicemen.

54Obstruction of police ofcer.

83Review of summary ndings and awards.

Prize Offences 55Prize offences by person in command.

part VIIICourts martIal 56Prize offences by others.

Constitution of Courts Martial Miscellaneous Offences 84Trial by court martial.

57Political activities.

85Ofcers having power to convene court martial.

58Making false statement on enlistment.

86Constitution of court martial.

59alsely obtaining or prolonging leave.

87Disqualications for membership of court martial.

60Inaccurate certication.

88Place for sitting of court martial.

61Making false document 89Appointment of judge advocate.

62Scandalous conduct of ofcer.

63Ill-treatment of subordinate.

Provisions Relating to Trial 64Disgraceful conduct.

90Challenge.

65False accusation.

91Oaths and afrmations.

66Attempt to commit offence.

92Court martial to sit in open court.

67Aiding and abetting.

93Evidence.

68Conduct to prejudice of good order and discipline.

94Privileges of witnesses and others.

95Contempt of court martial by civilian.

Civil Offences 96Power to convict of offence other than that charged.

69Civil offences.

97Dissolution of court martial.

98Decision of court martial.

part VIarrest 99Finding and sentence.

70Power to arrest offenders.

Finding of Insanity 71Power to arrest deserter or absentee.

100Where accused incapable of making defence.

72Provisions for avoiding delay after arrest.

101Where accused insane.

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

Punishments 74Deserter or absentee surrendering to police.

102Punishment of ofcers.

75Certicate of arrest or surrender of deserter or absentee.

103Punishment of servicemen.

76Superintendent of prison to receive deserters and 104Restitution or compensation for theft, etc.

absentees.

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

105Promulgation of nding or sentence.

106Petition against nding or sentence.

part VIIprelImInary InVestIgatIon and summary trIal of Charges Conrmation, Revision and Review 107Conviction and sentence to be conrmed.

78Certain charges may be dealt with summarily.

108Powers of conrming ofcer.

79Appropriate superior authority.

109Conrming ofcers.

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199 7 Section Section 110Revision of conviction of court martial.

part XIforfeItures and deduCtIons 111Review of ndings and sentences of courts martial.

112Consideration of sentences of imprisonment.

145Forfeitures and deductions: general provisions.

113Death sentence requires Presidents approval.

146Forfeiture of pay for absence from duty.

114Custody of court martial records and right of accused 147Deductions for penalties.

to copy.

148Compensation for loss occasioned by wrongful act or negligence.

part IXappeals from Courts martIal 149Deductions for barrack damage.

115Appeal to High Court.

150Remission of forfeitures and deductions.

116Application for leave to appeal.

part XIIbIlletIng and requIsItIonIng of VehICles 117Appellant may present case in writing.

118Determination of appeal in ordinary cases.

Billeting 119Powers of court in special cases.

151Billeting orders.

120Court may appoint assessor.

152Premises in which billets may be required.

121Repealed.

153Billeting.

122Proceedings to be heard in absence of appellant.

154Accommodation to be provided, and payment therefor.

123Defence on appeal.

155Where no occupier.

124Person sentenced to death to have opportunity to appeal.

156Appeals against billeting.

125Removal of prisoner.

157Compensation for damage.

126Composition of court.

158Application to civilians employed with armed forces, 127Furnishing of documents.

and to aircraft, ships and boats.

128Duties of registrar.

129Saving of prerogative of mercy.

Requisitioning of Vehicles 130Procedure.

159Requisitioning orders.

160Requisitioning of vehicles.

part XproVIsIons ConCernIng trIal and punIshment 161Period for which vehicles to be requisitioned.

162Provision of vehicles for purchase.

131Commencement of sentence of imprisonment.

163Payment for vehicles requisitioned.

132Duration of sentence of imprisonment.

164Avoidance of hardship in requisitioning vehicles.

133Service of sentence of imprisonment.

165Issue of search warrant.

134Committal to civil prison.

166Damage by vehicles being delivered for requisitioning.

135Suspension of sentence or punishment.

167Application to aircraft, ships, horses, etc., food, forage 136Sentence of imprisonment passed outside Kenya.

and stores.

137Indemnity for person acting under warrant.

138Proof of certain facts by documentary evidence.

Supplemental 139Proof of outcome of civil trial.

168Bringing into operation sections 151 and 159.

140Evidence of proceedings of court martial.

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

part XIIICommIssIonIng of offICers and enlIstment of 142Limitation of time for trial of offences.

serVICemen 143Trials by civil courts.

144Persons not to be tried under Act for offence already 169Grant of commissions.

dealt with.

170Term of commission.

171Termination of commission.

172Recruiting ofcers.

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199 9 Section Section 173Enlistment.

206Illegal dealings in documents relating to pay, pensions, 174Term of enlistment.

mobilization, etc.

175Prolongation of service.

207Unauthorized use of and dealing in decorations, etc.

176Discharge.

177Right to purchase discharge.

part XVIIVIsItIng forCes 178Right to discharge on reduction to ranks.

179Postponement of discharge or transfer pending 208Interpretation of Part.

proceedings for offences, etc.

209Power to apply Part.

180Mode of discharge.

210Powers of service courts of visiting forces.

181Validity of attestation and enlistment.

211Restrictions on prosecutions for civil offences.

part XIVthe reserVes 212Proof of certain facts.

182Transfer to reserve.

part XVIIImIsCellaneous 183Volunteer reserve.

213Precedence and command of members of armed forces.

184Calling out reservists for annual training.

214Exemptions from tolls, etc.

185Calling out reservists temporarily.

215Exemption from execution against public property.

186Calling out reservists on permanent service.

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

187Punishment for non-attendance.

217Certain ofcers may take statutory declarations.

188Record of illegal absence.

218Residence and next of kin to be recorded.

189Release from reserve on completion of service.

219Execution of wills.

190Release from reserve during service.

220Administration of estates.

221Uniforms and decorations not part of estate.

part XVthe armed forCes Constabulary 222Property of deserter.

223Board of inquiry.

191Armed Forces Constabulary.

224Report of inquiry into absence to be recorded.

192Commandant.

225Complaints by ofcers.

193Declaration by members.

226Complaints by servicemen.

194Functions of constabulary.

227Regulations.

195Powers and privileges of members.

228Rules of procedure.

196Powers of arrest.

229Repealed.

197Use of arms.

230Rules of court.

231Powers exercisable in subsidiary legislation.

part XVICIVIl offenCes ConCernIng the armed forCes 232Execution of orders, instruments, etc.

and the Constabulary sChedules.

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 11 60 of 1968, CHAPTER 199 appropriate superior authority has the meaning given in section 14 of 1971, 79; 4 of 1973, THE ARMED FORCES ACT 12 of 1978, armed forces means the armed forces of the Republic, namely 13 of 1978, Commencement: 2nd December, 1968 the Kenya Army, the Kenya Air Force and the Kenya Navy, together 17 of 1979, with the constabulary; 19 of 1982, An Act of Parliament to provide for the establishment, government and L.N.

29/1983, discipline of the Kenya Army, the Kenya Air Force and the Kenya arrest includes open arrest; 19 of 1984, Navy and their reserves; to make provision in relation to seconded L.N.

305/1986, and attached personnel and visiting forces; and for purposes L.N.

552/1988, connected therewith and purposes incidental thereto before the enemy, in relation to a person, means that he is in L.N.

258/1996, action against the enemy or is about to go into action against the enemy 2 of 2002, or is under attack or threat of imminent attack by the enemy; 12 of 2012.

part IprelImInary Short title.

1.

This Act may be cited as the Armed Forces Act.

151; billeting order means a billeting order made under section Interpretation.

2.

(1) In this Act, except where the context otherwise requires- civil court means a court of ordinary criminal jurisdiction; 12 of 1978, Sch.

32; absent without leave shall be construed by reference to section 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 this Act includes regulations or rules made under this Act; if committed in Kenya would constitute such an offence; civil prison means a prison within the meaning of the Prisons Cap.

90.

acting rank means a rank from which the Commander in the Act; 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 colour service means service in the armed forces other than specied rank shall be construed accordingly; service in the reserve or in a cadet force; air signal means a message, signal or indication given by any Commander means the Commander of the relative service of means whatsoever for the guidance of aircraft or a particular aircraft; the armed forces appointed under section 5 (6); aircraft material includes- (a) parts of, and components of or accessories for, aircraft, commanding ofcer, in relation to a member of the armed whether for the time being in an aircraft or not; forces, means the prescribed ofcer having powers of command over that person; (b) engines, armaments, ammunition and bombs and other competent service authority means the ofcer prescribed as missiles of any description in, or for use in, an aircraft; such; (c) any other gear, apparatus or instruments in, or for use in, an aircraft; conrming ofcer means a person who by virtue of section 109 has power to conrm the conviction and sentence of a court martial; (d) any apparatus used in connexion with the taking-off constabulary means the Armed Forces Constabulary established or landing of aircraft or for detecting the movement of by section 191; aircraft; (e) any fuel used for the propulsion of aircraft and any material convening ofcer, in relation to a court martial, means the used as a lubricant for aircraft or aircraft material; ofcer convening that court martial, and includes his successor or any 12 CAP.

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199 13 person for the time being exercising his or his successors functions; or co-operating forces means military, air or naval forces of (b) a person who is attached or seconded as a commissioned another country acting in co-operation with the armed forces under ofcer to any service of the armed forces; section 13; on active service, in relation to a person, means that the person corresponding civil offence means the civil offence the is serving in or with a unit of the armed forces which is on active commission of which constitutes the offence under section 69; service; corresponding rank, in relation to any rank in the Kenya Army, on active service, in relation to a unit of the armed forces, means such rank in the Kenya Air Force and such rank in the Kenya means that- Navy as are prescribed; (a) the unit is engaged in operations against an enemy; or court martial means a court martial held under Part VIII; (b) the President, considering that- damage includes destruction; (i) the armed forces or a part of the armed forces has recently date of attestation, in relation to any person, means the date on been on active service or is imminently likely to be on which he is attested under Part XIII; active service; and decoration includes medal, medal ribbon, clasp and good (ii) it is necessary for the preservation of public security that conduct badge; the armed forces or part of the armed forces should be Defence Council means the Defence Council established by treated as being on active service, section 5; 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 desertion shall be construed by reference to section 31; exceeding three months (which may be extended from time to time by a further period not exceeding three months, or terminated, by a enemy includes all persons engaged in armed operations against further notice in the Gazette), and (where part only of the armed forces any of the armed forces, and all armed mutineers, armed rebels, armed is declared to be on active service) the unit is included in that part of rioters and pirates; the armed forces; foreign country means a country other than Kenya; preservation of public security has the same meaning as in the Cap.

57.

Preservation of Public Security Act; Kenya Air Force, Kenya Army and Kenya Navy mean the forces established by section 3; prison means a service prison or a civil prison; Cap.

198 (1962).

Kenya Military Forces means the forces maintained under the provost ofcer means a provost marshal or other ofcer Kenya Military Forces Act (now repealed); appointed by the Commander, for a service of the armed forces, to be a provost ofcer for the purposes of this Act; non-commissioned ofcer means a serviceman holding the rank of senior sergeant, sergeant or corporal, or corresponding rank, or the public property means any property of the Government or a rank of lance corporal; 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 ofcer means- property belonging to a non-public fund authorized by the Commander (a) a person commissioned in any service of the armed forces; or the commanding ofcer; 14 CAP.

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199 15 recruiting ofcer means a person authorized to recruit stoppages means the recovery, by the deduction from the pay servicemen under section 172; of an offender, of a specied sum by way of compensation for any registrar means the Registrar of the High Court; expense, loss or damage occasioned by the offence; subject to this Act, in relation to a person, means that he is requisitioning order means a requisitioning order made under subject to this Act by virtue of Part III; section 159; superior ofcer, in relation to a person, means- reserve means the Kenya Army reserve, the Kenya Air Force reserve or the Kenya Naval reserve, as the case may be; (a) an ofcer, warrant ofcer or non-commissioned ofcer of reservist means a member of the reserve; superior rank; or (b) an ofcer, warrant ofcer or non-commissioned ofcer of rules of procedure means rules of procedure made under section equal rank but greater seniority while exercising authority 228; as that persons superior; sentence, in relation to imprisonment or active service visiting force has the meaning assigned to it in section 208; punishment, includes an award made upon a case being dealt with summarily; warrant ofcer means a serviceman holding the rank of warrant ofcer class I or warrant ofcer class II or corresponding rank.

service, used adjectivally, means belonging to or connected with the armed forces; (2) Except where otherwise provided, references in this Act- service custody means the holding of any person under arrest (a) to a particular rank are to that rank in the Kenya Army; or in connement by any of the armed forces, including connement in a service prison; (b) to a person holding a particular rank include references to service in the armed forces includes service in the Kenya a person acting in that rank: Military Forces; Provided that a punishment of a person acting in a rank may nevertheless be accompanied by an order that he revert to his substantive service of the armed forces means the Kenya Army, the Kenya rank.

Air Force or the Kenya Navy; part IIestablIshment and Command of armed service prison means premises set aside by one of the forCes Commanders as a place of imprisonment for persons serving a service 3.

(1) There are hereby established and there shall be maintained sentence of imprisonment; in accordance with this Act an army, an air force and a navy, to be Establishment and employment of service sentence of imprisonment means a sentence of known respectively as the Kenya Army, the Kenya Air Force and the armed forces.

imprisonment passed by a court martial or awarded on a charge being Kenya Navy, not exceeding such strength as may from time to time be 12 of 1978, Sch.

dealt with summarily; determined by the President on the advice of the Defence Council, and they shall rank in precedence in that order.

serviceman means any member of a service of the armed forces (2) The Kenya Army, the Kenya Air Force and the Kenya Navy who is not an ofcer; are charged with the defence of the Republic and the support of the civil steal has the same meaning as in Chapter XXVI of the Penal power in the maintenance of order, and with such other duties as may Cap.

63.

Code; from time to time be assigned to them by the Minister after consultation with the Defence Council.

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199 17 (3) The President shall be responsible for the organization and (3) The chairman of the Defence Council may assign to the command of the armed forces.

Permanent Secretary of the Ministry, the Chief of General Staff, the Commander of any service of the armed forces or the secretary of the (4) The President may, by notice in the Gazette, assign names to Council responsibility for any business of the Council: units of the armed forces and vary or replace any such names.

Provided that the exercise of powers and the performance of duties (5) The Minister may order that any member of the armed forces specically conferred or imposed on the Defence Council by this Act shall proceed to a place outside Kenya for the purpose of undergoing may not be assigned under this subsection.

instruction or training or for other duty or employment.

(4) The Defence Council may make rules and standing instructions Constitution of 4.

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

shall each consist of- (a) the organization of the work of the Council and the manner in (a) the regular force; which it may perform its functions, subject to any assignment (b) the reserve, consisting of- of responsibilities by the chairman under subsection (3); (b) the procedure to be followed by the Council in conducting (i) the regular reserve; and its business; and (ii) the volunteer reserve, if the Defence Council decides that (c) all matters which the Council may consider it necessary there shall be one; and or desirable to provide for, in order to secure the better (c) the cadet force, if the Defence Council decides that there performance of the functions of the Council.

shall be one.

(5) Acts and instructions of the Defence Council may be signied, 5.

(1) There is hereby established the Defence Council, which by command of the Defence Council, under the hand of the secretary of the Defence Council.

Defence Council, shall consist of- Chief of General Staff and Commanders.

(a) the Minister, who shall be chairman; (6) The President may appoint ofcers to be Chief of General Staff and Commanders of each service of the armed forces.

12 of 1978, s.2, 17 of 1979, Sch.

(b) the Assistant Minister, who shall be vice-chairman; 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.

(c) the Chief of General Staff; 12 of 1978, s.

3, and to this Act, be responsible for the overall control and direction of 17 of 1979, Sch.

(d) the Commander of each service of the armed forces; the armed forces, and shall perform the other functions given to it by this Act.

(e) the Permanent Secretary of the Ministry, (2) Subject to subsection (1) and to the other provisions of this and the chairman of the Council may appoint a person to be secretary Act, the Chief of General Staff shall, subject to the general direction of the Council.

of the Defence Council, be responsible for the control, direction and general superintendence of the armed forces.

(2) The Defence Council may delegate to the Minister, the (3) Subject to the directions of the Chief of General Staff, each Assistant Minister, a public ofcer or a member of the armed forces Commander shall have the command and administration of the service the exercise of any power or the performance of any duty conferred of which he is Commander.

or imposed on it by this Act, other than a power to make subsidiary legislation.

(4) The Chief of General Staff and each Commander may delegate 18 CAP.

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199 19 to an ofcer under his command any of his powers under this Act, except exercising authority under a provost ofcer or on his behalf, a power of delegation and a power for the exercise of which specic or by order of any ofcer, or by a member of the constabulary rank seniority or qualications (which the ofcer does not hold) are who is senior to him in rank; stipulated by this Act.

(d) the provisions of this Act relating to the investigation part IIIapplICatIon of aCt and summary trial of offences shall apply as they apply to 7.

(1) The following persons are subject to this Act- servicemen, except as otherwise expressly provided; Persons subject to (e) for the purposes of the provisions of this Act relating to the Act.

(a) ofcers and servicemen who are not reservists; 14 of 1971, Sch., investigation and summary trial of offences, the commanding 2 of 2002, Sch.

(b) reservists who have been called out under section 184, ofcer shall be the Commandant of the Constabulary and also section 185 or section 186; the ofcer commanding the unit with which the member is serving; and (c) any person who is serving with the armed forces under an (f) references in sections 141 and 142 to being, continuing to engagement whereby he agrees to be subject to this Act, and be or ceasing to be subject to this Act shall be replaced by who is not otherwise subject to this Act; and references to being, continuing to be or ceasing to be in (d) any person to whom Parts IV to XI (inclusive ) for the time circumstances in which Parts IV to XI (inclusive) apply, and being apply by virtue of section 8 or section 9.

section 141 (3) shall not apply.

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

being dealt with summarily, shall be recoverable as a debt due to the Government.

8.

(1) Parts IV to XI (inclusive) apply to members of the 9.

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

constabulary.

constabulary as they apply to ofcers and servicemen, but with the service, Parts IV to XI (inclusive) apply to any person who- 12 of 1978, Sch., modications specied in subsection (2).

(a) is employed in the service of that unit or of any part or 17 of 1979, Sch.

(2) The modications referred to in subsection (1) are- member thereof, or accompanies that unit or any part thereof; (a) the punishments which may be awarded by a court martial and shall include dismissal, reduction in rank and a ne, (b) is not otherwise subject to this Act, and stoppages where the offence has occasioned loss or damage, but shall not include any other punishment less as those Parts apply to ofcers and servicemen subject to this Act, but than imprisonment; with the modications specied in subsection (2).

(b) the only punishment which may be awarded for an offence (2) The modications referred to in subsection (1) are- where the charge is dealt with summarily shall be dismissal, reduction in rank and a ne not exceeding the equivalent (a) the punishments which may be awarded by a court martial of one months pay, and stoppages where the offence has shall include a ne, and stoppages where the offence has occasioned loss or damages; occasioned loss or damage, but shall not include any other (c) the following provision shall have effect in place of punishment less than imprisonment; subsections (2) and (3) of section 70, that is to say, a member (b) the punishment which may be awarded where a charge is of the constabulary may be arrested by a provost ofcer or dealt with summarily shall, in the case of any offence, be a by a warrant ofcer or non-commissioned ofcer legally ne not exceeding the equivalent of one months pay and 20 CAP.

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199 21 no other punishment; (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 (c) the following provision shall have effect in place of any duty or employment.

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 (4) An ofcer or serviceman on service outside Kenya by virtue or non-commissioned ofcer legally exercising authority of this section- under a provost ofcer or on his behalf, or by order of any ofcer, or by a member of the constabulary; (a) shall not, solely by reason thereof, cease to be subject to (d) the provisions of this Act relating to the investigation this Act; and summary trial of offences shall apply as they apply to (b) shall, for the purposes of gratuities and pension on discharge, servicemen, except as otherwise expressly provided; retain his rights and such service shall be taken into account (e) for the purposes of the provisions of this Act relating to the same extent as if it had been service in Kenya.

to the investigation and summary trial of offences, the 11.

(1) The Defence Council may attach to any unit of the armed Secondment or attachment to armed commanding ofcer shall be the ofcer commanding the forces any member of the military, air or naval forces of any country to forces.

unit in whose service the person is employed or which the which this section applies who is placed at its disposal for that purpose person accompanies; or 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 (f) references in sections 141 and 142 to being, continuing to period of his attachment- be or ceasing to be subject to this Act shall be replaced by references to being, continuing to be or ceasing to be in (a) have the like powers of command and punishment over circumstances in which Parts IV to XI (inclusive) apply, and members of the armed forces as are possessed by, and shall section 141 (3) shall not apply.

be deemed to be, an ofcer or serviceman of equivalent (3) The Chief of General Staff may determine the rank in respect rank; and of which Parts IV to XI (inclusive) shall apply to a person who is subject (b) be subject to this Act.

to this Act by virtue of this section.

(2) This section applies to any country in the Commonwealth, and (4) Any ne imposed on a person to whom this Act applies to any other country which the President may, by notice in the Gazette by virtue of this section, whether by a court martial or on a charge and with the approval of the National Assembly, declare to be a country being dealt with summarily, shall be recoverable as a debt due to the to which this section applies.

Government.

12.

(1) Notwithstanding section 11 (1), a person who is- Saving for members part IVCo-operatIon WIth forCes of other CountrIes of British forces.

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

Attachment to 10.

(1) The Defence Council may, subject to anything to the Naval Discipline Act; and other forces and employment outside contrary in the conditions applicable to his service, place any ofcer Kenya.

or serviceman at the disposal of the service authorities of any country (b) seconded or attached to the armed forces, to which this subsection applies for the purpose of his undergoing 12 of 1978, s.

4.

instruction or training.

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) Subsection (1) applies to any country in the Commonwealth, and to any other country which the President may, by notice in the (2) In the event of a person referred to in subsection (1) committing Gazette and with the approval of the National Assembly, declare to be an offence under the Army Act, the Air Force Act or the Naval Discipline a country to which that subsection applies.

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 23 part VserVICe offenCes (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 Treachery, Cowardice and Offences Arising out of Service court or authority made in pursuance of subsection (2) is in lawful Aiding enemy.

custody.

14.

(1) Any person subject to this Act who, with intent to assist (4) Nothing in this section confers on any of the persons referred the enemy- to in subsection (1) exemption from any law (other than this Act) or (a) abandons or delivers up any place or post which it is his from the jurisdiction of any civil court or authority in Kenya.

duty to defend, or abandons his place of duty, or induces 3 & 4 Eliz.

any person to abandon or deliver up any place or post which (5) In this section, the Army Act, the Air Force Act and it is that persons duty to defend, or induces any person to 2, c.18.

the Naval Discipline Act mean respectively the Army Act 1955, the abandon that persons place of duty; or 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.

(b) does any act calculated to imperil the success of operations 5 & 6 Eliz.

of the armed forces, or of any co-operating forces, or of any 2, c.

53.

part of the armed forces or of any co-operating forces; or 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 (c) having been captured by the enemy, serves with or aids the may place the armed forces or such part thereof under the command of enemy in the prosecution of hostilities, or in the taking of the ofcer commanding the other force, if that ofcer is senior in rank measures calculated to inuence morale, or in any other way to all the ofcers of the armed forces or such part thereof.

whatsoever not authorized by international usage; or (2) Where any part of the armed forces is acting in co-operation (d) furnishes the enemy with arms or ammunition or with with any other military, air or naval force, the commander of that part supplies of any description or with any other thing (whether of the armed forces may, in agreement with the commander of the other similar to the foregoing or not); or 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 (e) harbours or protects an enemy who is not a prisoner of relation to an ofcer or non-commissioned ofcer of the other force war; or who is of the equivalent rank.

(f) gives any false air signal, or alters or interferes with any air (3) In so far as powers of command depend on rank, any member signal or any apparatus for giving an air signal; or of any other military, air or naval force- (g) when ordered by his superior ofcer, or otherwise under (a) who is acting in co-operation with any unit of any of the orders, to carry out any warlike operations in the air, fails to armed forces; or use his utmost exertions to carry such orders into effect; or (b) whose unit is acting in co-operation with a unit of any of (h) causes the capture or destruction by the enemy of any of the the armed forces, aircraft of the armed forces or of any co-operating forces, shall have the same powers as a member of the armed forces of shall be guilty of an offence and liable, on conviction by court martial, corresponding rank; and for the purposes of sections 27 and 70 any such to suffer death or any other punishment provided by this Act.

member of another military, air or naval force shall be treated as if he were a member of the armed forces of corresponding rank.

(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.

24 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 25 16.

(1) Any person subject to this Act who is in command of any Misconduct in (3) Any person subject to this Act who negligently causes or aircraft, ship, vehicle or establishment of the armed forces, and who action by person in allows the capture or destruction by the enemy of any of the aircraft of with intent to assist the enemy- command.

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 (a) fails to use his utmost exertions to bring into action any provided by this Act.

aircraft, ship or vehicle which it is his duty to bring into 15.

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

the enemy, communicates with or gives intelligence to the enemy or (b) surrenders any aircraft, ship or vehicle of the armed forces to to any unauthorized person shall be guilty of an offence and liable, on 12 of 1978, Sch.

the enemy when it is capable of being successfully defended conviction by court martial, to suffer death or any other punishment or destroyed; or provided by this Act.

(c) fails to pursue any enemy whom it is his duty to pursue, or (2) Any person subject to this Act who, without authority, to assist to the utmost of his ability any friend whom it is communicates with or gives intelligence to the enemy shall be guilty of his duty to assist; or an offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

(d) in the course of any action by or against the enemy, improperly withdraws from the action or from his station, or (3) In this section, intelligence means information which is or fails in his own person and according to his rank to encourage purports to be information as to any matter about which information the persons under his command to ght courageously; or would or might be directly or indirectly useful to the enemy, and in particular (but without prejudice to the generality of the foregoing) as (e) surrenders any establishment, or any part of an establishment, to any matter falling within the following paragraphs, being a matter of the armed forces to the enemy when it is capable of being about which information would or might be directly or indirectly useful successfully defended or when it is his duty to cause it to to the enemy- be destroyed, (a) the number, description, armament, equipment, disposition, movement or condition of the armed forces or of any co- shall be guilty of an offence and liable, on conviction by court martial, to suffer death or any other punishment provided by this Act.

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 (2) Any person subject to this Act who is in command of any of the armed forces or any co-operating forces; aircraft, ship, vehicle or establishment of the armed forces, and who does (b) any operations or projected operations of the armed forces 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 or of any co-operating forces, or of any unit thereof, or of any of their aircraft or ships; offence and liable, on conviction by court martial, to imprisonment for life or any less punishment provided by this Act.

(c) any code, cipher, call sign, password, countersign or 17.

Any person subject to this Act who is not in command of any Misconduct in action frequency; by others.

aircraft, ship, vehicle or establishment of the armed forces, and who (d) any measures for the defence or fortication of any place on fails, when ordered to prepare for action by or against the enemy or behalf of the armed forces or of any co-operating forces; 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 (e) the number, description or location of any prisoners of and liable, on conviction by court martial, if the offence is committed war; 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 (f) weapons or munitions of war.

any less punishment provided by this Act.

18.

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

26 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 27 enemy- 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 (a) leaves the post, position or other place where it is his duty the case may be, to that other person shall be guilty of an offence.

to be; or (3) Any person guilty of an offence under this section shall be (b) throws away his arms, ammunition or tools; or liable, on conviction by court martial, to imprisonment for life or any (c) does any of the acts specied in paragraph (f), (g) and (h) less punishment provided by this Act.

of section 14 (1), 22.

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

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.

(a) sleeps at his post; or (2) Any person subject to this Act who, when before the enemy, (b) when not on duty at a post, is asleep at a time when he is induces other persons subject to this Act to commit an offence under not allowed to be asleep; or subsection (1) shall be guilty of an offence.

(c) is drunk; or (3) Any person guilty of an offence under this section shall be liable, on conviction by court martial, to imprisonment for life or any (d) leaves his post without having been regularly relieved or less punishment provided by this Act.

otherwise absents himself from any place where it is his 19.

Any person subject to this Act who neglects to perform or duty to be, Neglect of duty.

performs negligently any duty imposed on him shall be guilty of an shall be guilty of an offence.

offence and liable, on conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided (2) For the purposes of subsection (1), a person is drunk if, owing by this Act.

to the inuence of alcohol or any drug, whether alone or in combination Offences against with any other circumstances, he is unt to be entrusted with his duty morale.

20.

Any person subject to this Act who- 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 (a) spreads (whether orally, in writing, by signal or otherwise) armed forces.

reports relating to operations of the armed forces or of any co-operating forces, or of any part of any of the armed forces (3) Any person subject to this Act who strikes or otherwise uses or of any co-operating forces, being reports calculated to force against any person on guard duty or watch, being a member of create despondency or unnecessary alarm; or 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 (b) when before the enemy, uses words calculated to create person pass, shall be guilty of an offence.

despondency or unnecessary alarm, (4) Any person guilty of an offence under this section shall be shall be guilty of an offence and liable, on conviction by court martial, liable, on conviction by court martial, to imprisonment for life or any to imprisonment for life or any less punishment provided by this Act.

less punishment provided by this Act: Being captured 21.

(1) Any person subject to this Act who is captured by the Provided that, if the offence was not committed on active service, through disobedience enemy through disobedience of orders or wilful neglect of his duty he shall not be liable to imprisonment for more than ve years.

shall be guilty of an offence.

or neglect, and failure (5) References in this section to a person on guard duty or watch to rejoin forces.

(2) Any person subject to this Act who, having been captured by are references to a person who- the enemy, fails to take, or prevents or discourages any other person 28 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 29 (a) is posted or ordered to patrol, or has adopted the position of to suffer death or any other punishment provided by this Act.

sentry at a post or has undertaken the patrol; or (2) Any person subject to this Act who, in a case not falling within (b) is a member of a guard or other party mounted or ordered to subsection (1), takes part in a mutiny, or incites any person subject to this patrol, for the purpose of protecting any persons, premises or Act to take part in a mutiny whether actual or intended, shall be guilty of place, or of controlling access to or egress from any premises an offence and liable, on conviction by court martial, to imprisonment or place, or of regulating trafc by road or rail or on any for life or any less punishment provided by this Act.

inland navigation; or (3) In this Part, mutiny means a combination between two or (c) has been ordered to keep a specic watch.

more persons subject to this Act, or between persons two at least of Looting.

23.

Any person subject to this Act who- whom are subject to this Act- (a) to overthrow or resist lawful authority in the armed forces (a) steals from, or with intent to steal searches, the person of or any co-operating forces, or in any part of the armed forces anyone killed or wounded in the course of warlike operations; or any co-operating forces; or or (b) to disobey such authority in such circumstances as to make (b) steals any property which has been left exposed or the disobedience subversive of discipline, or with the object unprotected in consequence of warlike operations; or of avoiding any duty or service against, or in connexion with (c) takes otherwise than for the public service any aircraft, ship, operations against, the enemy; or vehicle, equipment or stores abandoned by the enemy, shall (c) to impede the performance of any duty or service in the be guilty of an offence and liable, on conviction by court armed forces or in any co-operating forces, or in any part of martial, to imprisonment for a term not exceeding ten years the armed forces or of any co-operating forces.

or any less punishment provided by this Act.

26.

Any person subject to this Act who, knowing that a mutiny 24.

Any person subject to this Act who outside Kenya commits is taking place or is intended- Failure to suppress Offences against civil mutiny.

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 (a) fails to use his utmost endeavours to suppress or prevent by court martial, to imprisonment for a term not exceeding two years it; or or any less punishment provided by this Act.

(b) fails to report without delay that the mutiny is taking place Mutiny and Insubordination or is intended, Mutiny.

25.

(1) Any person subject to this Act who- shall be guilty of an offence and liable, on conviction by court (a) takes part in a mutiny involving the use of violence or the martial- threat of the use of violence, or having as its object or one (i) if his offence was committed with intent to assist the of its objects the refusal or avoidance of any duty or service enemy, to suffer death or any other punishment provided against, or in connexion with operations against, the enemy by this Act; and or the impeding of the performance of any such duty or service; or (ii) in any other case, to imprisonment for life or any less (b) incites any person to take part in such a mutiny, whether punishment provided by this Act.

actual or intended, 27.

Any person subject to this Act who- Insubordinate behaviour.

shall be guilty of an offence and liable, on conviction by court martial, (a) strikes or otherwise uses violence against, or offers violence 30 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 31 to, his superior ofcer; or (2) This section applies to standing orders or other routine orders of a continuing nature made for any formation or unit or body (b) uses threatening or insubordinate language to his superior of servicemen, or for any command or other area, garrison or place, or ofcer, for any ship train or aircraft.

shall be guilty of an offence and liable, on conviction by court martial, Desertion and Absence without Leave to imprisonment for life or any less punishment provided by this Act: 31.

(1) Any person subject to this Act who- Provided that he shall not be liable to imprisonment for more Desertion.

(a) deserts; or 12 of 1978, Sch.

than ve years if the offence was not committed on active service and did not involve striking or otherwise using violence against, or offering (b) persuades or procures any person subject to this Act to violence to, a superior ofcer exercising authority as such.

desert, Disobedience to 28.

(1) Any person subject to this Act who, in such a manner as shall be guilty of an offence and liable, on conviction by court martial, particular orders.

to show a wilful deance of authority, disobeys any lawful command to imprisonment for life or any less punishment provided by this Act: 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 Provided that a person shall not be liable to imprisonment for punishment provided by this Act.

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

son in relation to whom it was committed was on active service or under orders for active service at that time.

Obstruction of 29.

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

(2) For the purposes of this Part, a person deserts if he- (a) obstructs; or (a) leaves the armed forces, or fails to join or rejoin the armed (b) when called on refuses to assist, 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 any person known to him to be a provost ofcer, duty ofcer or ofcer from his duty; or 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, (b) being an ofcer, enlists in or enters the armed forces without duty ofcer or ofcer of the patrol, shall be guilty of an offence and having resigned his commission, or being a serviceman liable, on conviction by court martial, to imprisonment for a term not enlists in or enters the armed forces without having been exceeding two years or any less punishment provided by this Act.

discharged from his previous enlistment; or Disobedience to 30.

(1) Any person subject to this Act who contravenes or refuses (c) absents himself without leave with intent to avoid serving in standing orders.

or fails to comply with any provision of orders to which this section any place outside Kenya or to avoid service or any particular applies, being a provision which he knows of or might reasonably service when before the enemy; or 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 (d) absents himself without leave for a continuous period of two years or any less punishment provided by this Act.

more than ninety days.

32 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 33 or (3) In addition to or without any other punishment, the court martial convicting a serviceman of desertion may direct that the whole (b) injures himself with intent thereby to render himself unt or or any part of his service preceding the period of desertion shall be temporarily unt for service, or causes himself to be injured forfeited: by any person with that intent; or Provided that this subsection does not apply to a reservist called (c) injures another person subject to this Act, at the instance of out on permanent service.

that person, with intent thereby to render that person unt Absence without 32.

Any person subject to this Act who- or temporarily unt for service; or leave.

(d) with intent to render or keep himself unt or temporarily (a) absents himself without leave; or 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 (b) persuades or procures any person subject to this Act to absent he produces, or prolongs or aggravates, any sickness or himself without leave, disability, shall be guilty of an offence and liable, on conviction by court martial, to 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 imprisonment for a term not exceeding two years or any less punishment provided by this Act.

provided by this Act.

Assisting desertion 33.

Any person subject to this Act who- Drunkenness.

or absence without 36.

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

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

or absent himself without leave; or any less punishment provided by this Act: (b) knowing that any person subject to this Act has deserted or Provided that, if he is neither on active service nor on duty, he absented himself without leave, or is attempting to desert or shall not be liable to imprisonment for more than six months.

absent himself without leave, fails to report that fact without delay, or fails to take any steps in his power to cause that (2) For the purposes of this section, a person is drunk if owing to person to be apprehended, 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 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 or with any duty which he may be called upon to perform, or behaves provided by this Act.

in a disorderly manner or in a manner likely to bring discredit to the armed forces.

Failure to perform 34.

Any person subject to this Act who without reasonable excuse 37.

Any person subject to this Act who- Quarrelling.

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 (a) ghts or quarrels with any other person whether subject to do so, shall be guilty of an offence and liable, on conviction by court this Act or not; or martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(b) uses threatening , abusive, insulting or provocative words Malingering, Drunkenness and Quarrelling or behaviour likely to cause a disturbance, 35.

Any person subject to this Act who- shall be guilty of an offence and liable, on conviction by court martial, to Malingering.

imprisonment for a term not exceeding two years or any less punishment (a) falsely pretends to be suffering from sickness or disability; provided by this Act.

34 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

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

Offences concerning 38.

Any person subject to this Act who- 41.

Any person subject to this Act who, being in command of an Improper carriage of public property.

goods.

aircraft, ship or vehicle of the armed forces or being a member of its (a) steals or fraudulently misapplies any public property, or crew, without lawful authority- is concerned in or connives at the stealing or fraudulent misapplication of any public property; or (a) receives or permits to be received on board the aircraft, ship or vehicle any goods or merchandise intended for disposal (b) receives or retains any public property, knowing or having or delivery by way of trade or business (whether on his reason to believe it to have been stolen or to have been own account or on account of any other person), not being fraudulently misapplied; or merchandise received in the course of salvage; or (c) wilfully damages, or is concerned in the wilful damage of, (b) agrees to carry any goods or merchandise on board the any public property; or aircraft, ship or vehicle in consideration of the payment of freight, or demands or receives any payment in respect of (d) by wilful neglect causes damage by re to any public such carriage, shall be guilty of an offence and liable, on property, conviction by court martial, to imprisonment for a term not exceeding two years or any less punishment provided by shall be guilty of an offence and liable, on conviction by court martial, this Act.

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

42.

Any person subject to this Act who- offences relating to Offences concerning 39.

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

property of persons which he has the charge or which has been entrusted to his subject to Act.

(a) steals or fraudulently misapplies any property belonging to care, or which forms part of property of which he has the a person subject to this Act, or is concerned in or connives charge or which has been entrusted to his care, or any service at the stealing or fraudulent misapplication of any such decoration granted to him; or property; or (b) loses, or by negligence damages, any clothing, arms, (b) receives or retains any such property, knowing or having ammunition or other equipment issued to him for his use reason to believe it to have been stolen or to have been for service purposes; or fraudulently misapplied; or (c) by negligence causes damage by re to any public property; (c) wilfully damages, or is concerned in the wilful damage of, or any such property, (d) fails to take proper care of any animal or bird of which he shall be guilty of an offence and liable, on conviction by court martial, to has the charge and which is used in the public service; or imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(e) makes away with (whether by pawning, selling or destruction or in any other way) any service decoration granted to him or Loss or hazarding 40.

Any person subject to this Act who, either wilfully or by any clothing, arms, ammunition or other equipment issued negligence, causes or allows any aircraft, ship or vehicle of the armed to him for his use for service purposes, of aircraft, ship or vehicle.

forces to be captured, lost, destroyed, damaged, stranded or hazarded shall be guilty of an offence and liable, on conviction by court martial, shall be guilty of an offence and liable, on conviction by court martial, to to imprisonment for life or any less punishment provided by this Act: imprisonment for a term not exceeding two years or any less punishment provided by this Act: Provided that, if he has not acted wilfully or with wilful neglect, 36 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 37 Provided that it shall be a defence for a person charged under this or thing as consideration for directions, or any particular section with losing any property or any service decoration that he took directions, for the provision of a vehicle not being given, all reasonable steps for its care and preservation.

or for possession of a vehicle not being taken or not being Offences relating to Billeting and Requisitioning of Vehicles retained, under a requisitioning order, shall be guilty of an offence and liable, on conviction by court martial, Billeting offences.

43.

Any person subject to this Act who- to imprisonment for a term not exceeding three years or any less (a) obtains billets, or orders or procures another person to obtain punishment provided by this Act.

them, knowing that no billeting order is in force authorizing (2) Subsection (1) applies in relation to aircraft, ships, boats, him to demand those billets or that he is otherwise not trains, railway rolling stock, horses, mules, donkeys and camels, food, authorized to demand them; or forage and stores (within the meaning of Part XII) as it applies in (b) takes, agrees to take or demands from a person on whom relation to vehicles.

he or any other person or any vehicle is or is to be billeted Flying Offences in pursuance of a billeting order any money or thing as consideration for not requiring, or for ceasing to require, 45.

Any person subject to this Act who, either wilfully or by accommodation for himself or the said other person or negligence, does any act or makes any omission in ying an aircraft of Dangerous ying.

standing room for the vehicle; or 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 (c) commits any wrongful act against the person or property of loss of life or bodily injury to any person shall be guilty of an offence the occupier of premises in which he is billeted in pursuance and liable, on conviction by court martial, to imprisonment for life or of a billeting order or of any other person who is in those any less punishment provided by this Act: premises, or against any other property in those premises, or wilfully or by wilful neglect damages those premises or Provided that, if he has not acted wilfully or with wilful neglect, any such property as aforesaid, he shall not be liable to imprisonment for more than two years.

shall be guilty of an offence and liable, on conviction by court martial, to 46.

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

imprisonment for a term not exceeding two years or any less punishment aircraft of the armed forces, ies it at a height less than the prescribed provided by this Act.

height, except- Offences in relation 44.

(1) Any person subject to this Act who- (a) while taking off or landing; or to requisitioning of (a) gives directions for the provision of a vehicle, or orders (b) in such other circumstances as may be prescribed, vehicles.

or procures another person to give them, knowing that no requisitioning order is in force authorizing him to give shall be guilty of an offence and liable, on conviction by court martial, to directions for the provision of that vehicle and that he is not imprisonment for a term not exceeding two years or any less punishment otherwise authorized to give such directions; or provided by this Act.

(b) in purported exercise of powers conferred by a requisitioning 47.

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

order, takes, or orders or procures any other person to take, aircraft of the armed forces, ies it so as to cause, or as to be likely to possession of a vehicle, knowing that no requisitioning order cause, unnecessary annoyance to any person shall be guilty of an offence is in force under which the taking possession of the vehicle and liable, on conviction by court martial, to imprisonment for a term could be authorized or that the taking possession thereof is not exceeding two years or any less punishment provided by this Act.

otherwise not authorized under such an order; or (c) takes or agrees to take, or demands, from a person any money 38 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 39 Offences relating to Custody be liable, on conviction by court martial, to imprisonment for a term not Irregular arrest and 48.

(1) Any person subject to this Act who, when another person exceeding two years or any less punishment provided by this Act.

connement.

subject to this Act is under arrest- 49.

(1) Any person subject to this Act who wilfully allows to Permitting escape, and unlawful release escape any person who is committed to his charge, or whom it is his of prisoners.

(a) unnecessarily delays the taking of such steps as it is his duty duty to guard, shall be guilty of an offence and liable, on conviction by to take for investigating the allegations against that other court martial, to imprisonment for a term not exceeding seven years or person, or for having the allegations against that other person any less punishment provided by this Act.

investigated by his commanding ofcer or the appropriate superior authority or tried by court martial; or (2) Any person subject to this Act who- (b) fails to release, or effect the release of, that other person (a) without proper authority releases any person who is when it is his duty to do so, committed to his charge; or shall be guilty of an offence.

(b) without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to guard, (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 shall be guilty of an offence and liable, on conviction by court martial, to ofcer or other ofcer or of a warrant ofcer or non-commissioned imprisonment for a term not exceeding two years or any less punishment ofcer, fails without reasonable cause to deliver- provided by this Act.

(a) at the time of the committal; or 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 (b) if it is not practicable so to do at the time of the committal, arrest, or strikes or otherwise uses violence against, or offers violence then within twenty-four hours thereafter, to, any such ofcer, shall be guilty of an offence, whether or not the to the person to whose custody the prisoner was committed a report in ofcer is his superior ofcer.

writing signed by himself of the offence which the prisoner is alleged (2) Any person subject to this Act who strikes or otherwise uses to have committed shall be guilty of an offence.

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 (3) Where any person (in this subsection referred to as the he is shall be guilty of an offence.

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 (3) Any person guilty of an offence under this section shall be does not, as soon as he is relieved from his guard and any further duty liable, on conviction by court martial, to imprisonment for a term not and in any case within twenty-four hours after the committal, give to exceeding three years or any less punishment provided by this Act.

the ofcer to whom it is his duty to report- 51.

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

(a) a written statement containing, so far as known to him, the or other lawful custody (whether service custody or not) shall be guilty prisoners name and alleged offence and the name and rank of an offence and liable, on conviction by court martial, to imprisonment or other description of the person by whom the prisoner is for a term not exceeding two years or any less punishment provided alleged to have committed the offence; and by this Act.

(b) if he has received it, the report required by subsection (2), Offences concerning Courts Martial and other Authorities he shall be guilty of an offence.

52.

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

(4) Any person who is guilty of an offence under this section shall (a) having been duly summoned or ordered to attend as a witness 40 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 41 before a court martial, fails to comply with the summons or any statement alleged to be false.

order; or 54.

Any person subject to this Act who prevents or obstructs any Obstruction of police (b) refuses to swear an oath when duly required by a court other person- ofcer.

martial to do so; or (a) in executing a warrant for the arrest of a person subject to this (c) refuses to produce any document in his custody or under Act who has committed or is suspected of having committed his control which a court martial has lawfully required him an offence triable by a civil court; or to produce; or (b) in lawfully arresting without a warrant a person subject to (d) when a witness, refuses to answer any question which a court this Act, martial has lawfully required him to answer; or shall be guilty of an offence and liable, on conviction by court martial, to (e) wilfully insults any person who is a member of a court imprisonment for a term not exceeding two years or any less punishment martial or a witness, or any other person whose duty it is to provided by this Act.

attend on or before the court, while that person is acting as a member thereof or is so attending, or wilfully insults any Prize Offences such person while that person is going to or returning from Prize offences by the proceedings of the court; or 55.

Any person subject to this Act who is in command of an person in command.

(f) wilfully interrupts the proceedings of a court martial or aircraft or ship and who- otherwise misbehaves before the court, (a) having taken any aircraft or ship as prize, fails to send to the High Court, or to some other prize court having jurisdiction shall be guilty of an offence and liable, on conviction by court martial, in the case, all the aircrafts papers or ships papers, as the other than the court in relation to which the offence was committed, to case may be, found on board; or imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(b) unlawfully makes any agreement for the ransoming of any aircraft, ship or goods taken as prize; or (2) Notwithstanding subsection (1), where an offence under paragraph (e) or paragraph (f) of that subsection is committed in relation (c) in pursuance of any such agreement as aforesaid, or to a court martial, that court martial, if of opinion that it is expedient otherwise by collusion, restores or abandons any aircraft, that the offender should be dealt with summarily by the court instead ship or goods taken as prize, 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 shall be guilty of an offence and liable, on conviction by court martial, to imprisoned for a term not exceeding twenty-one days.

imprisonment for a term not exceeding ve years or any less punishment False evidence.

53.

(1) Any person subject to this Act who, having been lawfully provided by this Act.

sworn as a witness or as an interpreter in proceedings before a court 56.

Any person subject to this Act who- Prize offences by martial or before any board or person having power under this Act to others.

administer oaths, makes a statement material in those proceedings which (a) strikes or otherwise ill-treats any person who is on board an he knows to be false or does not believe to be true shall be guilty of aircraft or ship taken as prize, or who unlawfully takes from an offence and liable, on conviction by court martial, to imprisonment any such person any thing in his possession; or for a term not exceeding seven years or any less punishment provided by this Act.

(b) removes out of any aircraft or ship taken as prize (otherwise than for safe keeping or for the necessary use of the armed (2) A person shall not be liable to be convicted of an offence under forces) any goods not previously adjudged by a prize court this section solely upon the evidence of one witness as to the falsity of to be lawful prize; or 42 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

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

(c) breaks bulk on board any aircraft or ship taken as prize, or any aircraft material; or detained in exercise of any belligerent right or under any law, with intent to embezzle or fraudulently misapply any (b) a certicate relating to any matter affecting the sea-going or thing therein, ghting efciency of any ship of the armed forces, shall be guilty of an offence and liable, on conviction by court martial, to without having ensured its accuracy shall be guilty of an offence and imprisonment for a term not exceeding ve years or any less punishment liable, on conviction by court martial, to imprisonment for a term not provided by this Act.

exceeding two years or any less punishment provided by this Act.

Miscellaneous Offences 61.

Any person subject to this Act who- Making false Political activities.

document.

57.

Any person subject to this Act who- (a) makes, signs or makes an entry in any service report, return, pay list or certicate or other service document, being a (a) promotes, or is a member of, or takes part in the activities document or entry which is to his knowledge false in a of, any political association; or material particular; or (b) expresses political views in a public place; or (b) alters any service report, return, pay list or certicate or other service document, or alters any entry therein, so that (c) addresses any meeting, or joins in any demonstration, the document or entry is to his knowledge false in a material the purpose of which is to express support for a political particular, or suppresses, defaces or makes away with any association or object or for a candidate in a national or local such document or entry which it is his duty to preserve or authority election, produce; or shall be guilty of an offence and liable, on conviction by court martial, to (c) fails to make an entry in any such document so that the imprisonment for a term not exceeding two years or any less punishment document is to his knowledge false in a material particular, provided by this Act: shall be guilty of an offence and liable, on conviction by court martial, to Provided that this section does not prevent any person from imprisonment for a term not exceeding two years or any less punishment recording his vote at such an election.

provided by this Act.

58.

Any person who, when before a recruiting ofcer for the 62.

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

statement on purpose of being attested in pursuance of Part XIII, knowingly makes unbecoming the character of an ofcer, shall be guilty of an offence enlistment.

a false answer to any question contained in the attestation paper and and shall, on conviction by court martial, be dismissed from the armed put to him by or by the direction of the recruiting ofcer shall, if he has forces.

since become and remains subject to this Act, be guilty of an offence and Ill-treatment of liable, on conviction by court martial, to imprisonment for a term not 63.

Any ofcer, warrant ofcer or non-commissioned ofcer subordinate.

exceeding three months or any less punishment provided by this Act.

who strikes or otherwise ill-treats a person subject to this Act who is of Falsely obtaining or inferior rank, or is of the same rank but of less seniority, shall be guilty prolonging leave.

59.

Any person subject to this Act who knowingly makes a false of an offence and liable, on conviction by court martial, to imprisonment statement to any member or authority of the armed forces, or to a police for a term not exceeding ve years or any less punishment provided ofcer, or to an administrative ofcer, for the purpose of obtaining by this Act.

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 64.

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

two years or any less punishment provided by this Act.

conduct of a cruel, indecent or unnatural kind shall be guilty of an Inaccurate offence and liable, on conviction by court martial, to imprisonment 60.

Any person subject to this Act who makes or signs- for a term not exceeding ten years or any less punishment provided 44 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 45 by this Act.

(b) in any other case, shall be liable to any punishment which False accusation.

a civil court could award for the civil offence if committed 65.

Any person subject to this Act who- in Kenya, being one or more of the punishments provided by this Act, or such punishment, less than the maximum (a) makes an accusation against any other person subject to punishment which a civil court could so award, as is provided this Act which he knows to be false or does not believe to by this Act: be true; or Provided that, where a civil court could not so award imprisonment, (b) in making a complaint where he thinks himself wronged, a person so convicted shall be liable to suffer such punishment, less than makes a statement affecting the character of another person dismissal from the armed forces, as is provided by this Act.

subject to this Act which he knows to be false or does not believe to be true, or wilfully suppresses any material (2) A person shall not, except with the consent of the Attorney- facts, General, be charged with an offence under this section committed in Kenya if the corresponding civil offence is treason, treasonable felony, shall be guilty of an offence and liable, on conviction by court martial, treachery, murder, manslaughter or rape.

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

(3) Where the civil offence is murder or manslaughter, an offence Attempt to commit under this section shall be deemed, for the purposes of subsection (2), offence.

66.

Any person subject to this Act who attempts to commit an to have been committed at the place where the act or omission which offence under any of the foregoing provisions of this Part shall be guilty caused the death occurred, irrespective of the place of death.

of an offence and liable, on conviction by court martial, to the same punishment as is provided for the offence attempted: part VIarrest Provided that, if the offence is one punishable by death or by 70.

(1) Any person subject to this Act who is found committing an Power to arrest offenders.

imprisonment for life, he shall not be liable to any greater punishment offence under this Act, or is alleged to have committed or is reasonably than imprisonment for a term not exceeding seven years.

suspected of having committed an offence under this Act, may be Aiding and abetting.

67.

Any person subject to this Act who aids, abets, counsels, arrested in accordance with this section.

procures or connives at the commission by another person of an offence (2) An ofcer may be arrested by an ofcer of superior rank, or, under any of the foregoing provisions of this Part shall be guilty of the if engaged in a quarrel or disorder, by an ofcer of any rank.

like offence and shall be liable to be charged, tried, and on conviction by court martial, punished as a principal offender.

(3) A serviceman may be arrested by an ofcer, a warrant ofcer 68.

Any person subject to this Act who is guilty of any act, conduct or a non-commissioned ofcer: Conduct to prejudice or neglect to the prejudice of good order and service discipline shall Provided that a serviceman shall not be arrested by virtue of this of good order and discipline.

be guilty of an offence and liable, on conviction by court martial, to subsection except by a person of superior rank.

imprisonment for a term not exceeding two years or any less punishment 12 of 1978, Sch.

provided by this Act.

(4) A provost ofcer may arrest any ofcer or serviceman: Civil Offences Provided that an ofcer shall not be arrested by virtue of this Civil offences.

69.

(1) Any person subject to this Act who commits a civil offence, subsection except on the order of another ofcer.

whether in Kenya or elsewhere, shall be guilty of an offence and, on (5) The power of arrest given by this section may be exercised conviction by court martial- either personally or by ordering into arrest the person to be arrested or (a) if the civil offence is treason or murder, shall be sentenced by giving orders for that persons arrest.

to death; and (6) In this section, provost ofcer includes an ofcer or 46 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 47 serviceman lawfully exercising authority under a provost ofcer or on (3) For the purposes of section 48 (1), the question whether there his behalf.

has been unnecessary delay in the taking of steps for investigating Power to arrest allegations against a person under arrest shall be determined without deserter or absentee.

71.

(1) A police ofcer may arrest any person whom he has regard to subsection (2) of this section.

reasonable cause to suspect of being an ofcer or serviceman who has 73.

(1) Where a person who is brought before a subordinate court Proceedings before deserted or is absent without leave.

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.

(2) Where no police ofcer is available, any person may arrest absentee arrested.

any person whom he has reasonable cause to suspect of being an ofcer (2) If he admits that he is illegally absent from the armed forces or serviceman who has deserted or is absent without leave.

and the court is satised of the truth of the admission, then- (3) Any person having authority to issue a warrant for the arrest (a) unless he is in custody for some other cause, the court of a person suspected of a criminal offence, if satised by evidence shall; and on oath that there is, or is reasonably suspected of being, within his jurisdiction a person who is reasonably suspected of being an ofcer (b) notwithstanding that he is in custody for some other cause, or serviceman who has deserted or is absent without leave, may issue a warrant authorizing his arrest.

the court may, (4) Any person who is arrested in pursuance of this section shall forthwith either cause him to be delivered into service custody in such as soon as practicable be brought before a subordinate court.

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 (5) Notwithstanding any other written law, a person arrested and such time as the court considers reasonably necessary for the purpose brought before a subordinate court under this section or under section of enabling him to be delivered into service custody) or until sooner 73 or section 74 shall not be admitted to bail.

delivered into service custody.

Provisions for 72.

(1) The allegations against a person arrested under section 70 (3) Any time xed by the court under subsection (2) may be avoiding delay after or section 71 shall be investigated without unnecessary delay, and as extended by the court from time to time if it appears to the court arrest.

soon as practicable thereafter either proceedings shall be taken to deal reasonably necessary to do so for the purpose aforesaid.

with the allegations or he shall be released from arrest.

(2) Wherever any person subject to this Act is arrested and remains (4) If he does not admit that he is illegally absent as aforesaid, or in custody for more than eight days without his being tried by court if the court is not satised of the truth of the admission, the court shall martial or dealt with summarily- 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 (a) a special report on the necessity for further delay shall be 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 made by his commanding ofcer to the prescribed authority in the prescribed manner; and other cause, the court shall cause him to be delivered into service custody or commit him as aforesaid, but otherwise shall discharge him: (b) a similar report shall be made to the prescribed authority Provided that if he is in custody for some other cause the court and in the prescribed manner every eight days until a court martial sits or the offence is dealt with summarily or he is shall have power, but shall not be required, to act in accordance with released from arrest: this subsection.

(5) The provisions of the Criminal Procedure Code relating to the Provided that, where the person is on active service, this subsection constitution and procedure of subordinate courts holding preliminary Cap.

75.

need be complied with only so far as is reasonably practicable, having inquiries and conferring powers of adjournment and remand on such regard to the exigencies of active service.

courts so acting, and those relating to evidence and the issue and 48 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 49 enforcement of summonses or warrants to secure the attendance of shall be evidence of the matters stated in the certicate.

witnesses, shall apply to proceedings under this section.

76.

It shall be the duty of the superintendent or other Superintendent of Deserter or absentee 74.

(1) Where a person surrenders himself, as being an ofcer person in charge of a civil prison, or the person in charge of prison to receive surrendering to deserters and police.

or serviceman who has deserted or is absent without leave, to a police any police station or other place provided for the connement absentees.

ofcer elsewhere than at a police station, the police ofcer shall bring of persons in custody, to receive any person duly committed to him to a police station.

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 (2) Where a person surrenders himself, as being an ofcer or to detain him until he is delivered in accordance with the directions of serviceman who has deserted or is absent without leave, to a police the court, into service custody.

ofcer at a police station, or is brought to a police station under Temporary reception subsection (1), the police ofcer in charge of the police station shall 77.

(1) Where a person is in service custody charged with, or with of person in service forthwith inquire into the case, and, if it appears to him that the person a view to his being charged with, an offence under Part V it shall be the custody into civil is an ofcer or serviceman who has deserted or is absent without leave, duty of the superintendent or other person in charge of a civil prison, or custody.

he may cause him to be delivered into service custody without bringing the person having charge of any police station or other place provided him before a subordinate court or may bring him before a subordinate for the connement of persons in custody, to receive that person and court.

to detain him for a period not exceeding fteen days, upon receiving a written order purporting to be signed by the persons commanding Certicate of arrest 75.

(1) Where a subordinate court deals with a person under ofcer.

or surrender of deserter or absentee.

section 73, then when that person is delivered into service custody there shall be handed over with him a certicate in the prescribed form, (2) Notwithstanding subsection (1), where a person is in service signed by a magistrate, containing particulars of his arrest or surrender custody charged with an offence under Part V or the corresponding and of the proceedings before the court.

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 (2) Where a person is delivered into service custody without made to him by afdavit or other sworn evidence by the commanding being brought before a court, whether under section 74 or under any ofcer of the person in custody and on being satised that it is in the other lawful power, there shall be handed over with him a certicate, interests of law and order to do so, by warrant from time to time remand in the prescribed form, signed by the police ofcer who causes him the person in custody for a reasonable time, not exceeding twenty-one to be delivered into service custody, containing the particulars of his days at any one time, to a civil prison, police station or other place surrender.

provided for the connement of persons in custody.

(3) In any proceedings for an offence under section 31 or section (3) A magistrate to whom an application under subsection (2) is 32- made, may, on the same application or on a subsequent application made by the commanding ofcer, order, by endorsement on the warrant, that (a) a document purporting to be a certicate under subsection (1) the person in custody be returned to service custody for such periods as or subsection (2) of this section, or under the corresponding may be necessary to enable a court martial to be held, or may order his provisions of any service law other than this Act, and to be discharge from the civil prison or other place where he is detained.

signed as thereby required, shall be evidence of the matter stated in the document; part VIIprelImInary InVestIgatIon and summary (b) where the proceedings are against a person who has trIal of Charges been taken into service custody on arrest or surrender, a 78.

(1) Instead of the accused being tried by court martial- Certain charges may be dealt with certicate purporting to be signed by a provost ofcer or any summarily.

corresponding ofcer of the forces of another country, or by (a) the commanding ofcer of the accused may deal summarily any other ofcer in charge of the guard-room or other place with the charge if it is for an offence prescribed as one which where that person was conned on being taken into custody, a commanding ofcer may deal with summarily; stating the fact, date, time and place of arrest or surrender, 50 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 51 (b) the appropriate superior authority may deal summarily with to an ofcer of the rank of captain or corresponding rank or below the charge if it is for an offence prescribed as one which the are, subject to the limitations hereinafter provided, those set out in the appropriate superior authority may deal with summarily, following scale- but subject in either case to any prescribed limitations.

(a) forfeiture of up to six months seniority of rank in the prescribed manner; (2) Notwithstanding subsection (1), a commanding ofcer of the rank of major or corresponding rank shall not deal summarily with (b) a ne not exceeding half a months pay; 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 (c) severe reprimand; corresponding rank shall not deal summarily with a charge against any ofcer.

(d) reprimand; (3) References in this Act to dealing summarily with a charge are (e) admonition; references to the commanding ofcer of the accused or the appropriate superior authority determining whether the accused is guilty and either (f) where the offence has occasioned any expense, loss or recording a nding of guilty and awarding punishment or dismissing damage, stoppages.

the charge.

Appropriate superior (3) Where the commanding ofcer refers the charge to the authority.

79.

For the purposes of this Act, the appropriate superior authority appropriate superior authority, the appropriate superior authority shall is the Commander or such ofcer, not below the rank of lieutenant- either- colonel or corresponding rank, as may be prescribed: (a) if the charge is one which he has power to deal with Provided that an ofcer of such rank as may be prescribed shall summarily and he considers that the charge should be so not be the appropriate superior authority for the purposes of a case in dealt with, deal summarily with the charge; or which the accused is above such rank as may be prescribed.

(b) in any other case, take the prescribed steps with a view to Commanding ofcer 80.

Where a person subject to this Act is accused of an offence the charge being tried by court martial: to investigate all charges.

under Part V, the accusation shall be reported in the form of a charge to the accuseds commanding ofcer, and the commanding ofcer shall Provided that the appropriate superior authority may refer the investigate the charge in the prescribed manner.

charge back to the accuseds commanding ofcer with a direction that it shall be dismissed or dealt with summarily, but without prejudice to Charges against 81.

(1) After investigating a charge against an ofcer, the the bringing of another charge if the appropriate superior authority so commanding ofcer shall either- directs or if the commanding ofcer thinks t.

ofcer.

19 of 1982, Sch.

(a) if the charge is one which he has power to deal with (4) Where the appropriate superior authority deals with a charge summarily and he considers that the charge should be so summarily and records a nding of guilty, the punishments which he dealt with, deal summarily with the charge; or may award are, subject to the limitations hereinafter provided, those (b) in any other case, refer the charge in the prescribed manner set out in the following scale- to the appropriate superior authority: (a) forfeiture of up to twelve months seniority of rank and the Provided that he may dismiss the charge if he is of the opinion prescribed manner; that it ought not to be further proceeded with.

(b) a ne not exceeding one months pay; (2) Where the commanding ofcer deals with a charge summarily (c) severe reprimand; and records a nding of guilty, the punishments which he may award 52 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 53 (d) reprimand; with, take the prescribed steps with a view to the charge (e) admonition; being tried by court martial; or (b) refer the charge back to the commanding ofcer with a (f) where the offence has occasioned any expense, loss or direction that it shall be dismissed or dealt with summarily, damage, stoppages.

and in any such case the commanding ofcer shall comply with that direction.

(5) Where the commanding ofcer or the appropriate superior authority deals with a charge summarily and considers that the accused (3) The reference back of a charge in pursuance of subsection is guilty, then, if he intends to award a punishment of forfeiture of (2) shall be without prejudice to the bringing of another charge if the seniority of rank, a ne or stoppages- appropriate superior authority so directs or if the commanding ofcer (a) a nding shall not be recorded until the accused has been thinks t.

afforded the opportunity of choosing to be tried by court (4) Where the commanding ofcer deals with a charge summarily martial; and and records a nding of guilty, the punishments which he may award are, subject to the limitations hereinafter provided, those set out in the (b) if the accused chooses to be tried by court martial, a nding following scale- shall not be recorded but the prescribed steps shall be taken with a view to the charge being tried by court martial.

(a) if the accused is a warrant ofcer or a non-commissioned ofcer- (6) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence.

(i) dismissal from the armed forces; (7) Stoppages may be awarded either in addition to or without (ii) reduction in rank to private or corresponding rank, or any other punishment.

any less reduction in rank; (8) A severe reprimand or a reprimand may be awarded in addition (iii) forfeiture of seniority of rank in the prescribed man- to forfeiture of seniority of rank or a ne.

ner; Charges against 82.

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

(iv) a ne of a sum not exceeding one months pay; commanding ofcer shall either- 12 of 1978, s.

5.

(v) severe reprimand; (a) if the charge is one which he has power to deal with summarily and he considers that the charge should be so (vi) reprimand; dealt with, deal summarily with the charge; or (b) in any other case, take the prescribed steps with a view to (vii) such minor punishments as may be prescribed; the charge being tried by court martial: (viii) admonition; Provided that he may dismiss the charge if he is of the opinion that it ought not to be further proceeded with.

(ix) where the offence has occasioned any expense, loss or damage, stoppages; (2) Where the commanding ofcer refers the charge for trial by (b) if the accused is a serviceman other than a warrant ofcer court martial, the convening ofcer to whom the charge is referred shall either- or non-commissioned ofcer- (a) if the charge is one which he considers should be so dealt (i) imprisonment for a term not exceeding forty-two days or, if the accused is on active service, active service punish- 54 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 55 ment for a period not exceeding forty-two days: (8) In the case of a warrant ofcer or non-commissioned ofcer, a Provided that, where more than one term of imprisonment or severe reprimand or reprimand may be awarded in addition to forfeiture active service punishment is awarded in the course of the same hearing, of seniority of rank or a ne.

the terms shall not exceed forty-two days in the aggregate; (9) Where an offender is on active service on the day of (ii) dismissal from the armed forces; the sentence, a ne may be awarded in addition to active service punishment.

(iii) a ne of a sum not exceeding one months pay; (10) Stoppages may be awarded either in addition to or without (iv) such minor punishments as may be prescribed; any other punishment.

(v) admonition; (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 (vi) where the offence has occasioned any expense, loss or ndings and awards.

not been dismissed, the reviewing authority may at any time review damage, stoppages.

12 of 1978, s.

6, the nding or award.

17 of 1979, Sch.

(5) Where the commanding ofcer deals with a charge summarily (2) Where on a review under this section it appears to the and considers that the accused is guilty, then, if he intends to award a reviewing authority expedient, by reason of any mistake of law in the punishment of dismissal from the armed forces, reduction in rank or proceedings on the summary dealing with the charge or of anything stoppages- occurring in those proceedings which in the opinion of the authority (a) a nding shall not be recorded until the accused has been involved substantial injustice to the accused, to do so, the authority afforded the opportunity of choosing to be tried by court may quash the nding; and if the nding is quashed the authority shall martial; and also quash the award.

(b) if the accused chooses to be tried by court martial, a nding (3) Where on a review under this section it appears to the shall not be recorded but the prescribed steps shall be taken reviewing authority that- with a view to the charge being tried by court martial: (a) a punishment awarded was invalid; or Provided that where the accused has not chosen to be tried by (b) a punishment awarded was too severe; or court martial the punishment of- (i) dismissal; (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; (ii) reduction in rank of a warrant ofcer; or or (iii) reduction in rank of senior sergeant or sergeant, or cor- (d) a punishment awarded was too lenient, responding rank, to private or corresponding rank, the authority may vary the award by substituting such punishment shall be subject to conrmation by the Commander.

or punishments as the authority thinks proper, being a punishment or punishments which could have been included in the original award: (6) Except where expressly provided by this Act, not more than one punishment shall be awarded under this section for one offence.

Provided that no award shall be varied to the prejudice of the (7) Where a serviceman is sentenced to imprisonment he may in accused under this subsection unless he has had an opportunity of addition be sentenced to dismissal from the armed forces.

being heard by, or of making written representation to, the reviewing 56 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 57 authority.

(ii) the only punishment or the maximum punishment which (4) In this section, the reviewing authority means- can be awarded in respect of the charge before the court (a) any ofcer superior in command to the ofcer who dealt is death.

summarily with the charge; or who- (2) The presiding ofcer of a court martial shall be a person (b) the Commander; or (a) is an ofcer not below the rank of major or corresponding (c) the Chief of General Staff, if the Commander was involved rank: in the summary proceedings; or Provided that, if the convening ofcer is of opinion that such an (d) the Defence Council.

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 part VIIICourts martIal an ofcer not below the rank of captain or corresponding rank; and Constitution of Courts Martial (b) has been an ofcer for a period of not less than ve years Trial by court or for periods amounting in the aggregate to not less than martial.

84.

Subject to this Act, a court martial shall have power to try ve years, 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 appointed in writing by the convening ofcer.

provided by this Act for that offence.

(3) The other members of a court martial shall be persons who Ofcers having 85.

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

have been ofcers for a period of not less than two years or for periods court martial.

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 12 of l978, Sch., (2) An order convening a court martial shall be signed either by 17 of 1979, Sch.

or above the rank of captain or corresponding rank.

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 87.

(1) The convening ofcer shall not be a member of the court Disqualications for by the Chief of General Staff to sign such orders on behalf of the Chief martial which he convenes.

membership of court of General Staff or the Commander.

martial.

(3) An order convening a court martial and purporting to be signed (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 by the Chief of General Staff, the Commander or an ofcer authorized been the accuseds commanding ofcer, and any other ofcer who has under subsection (2) shall, in proceedings be presumed to have been so investigated the charge against the accused, or who under service law signed, and in the last-mentioned case the ofcer shall be presumed to has held or been one of the persons holding an inquiry into matters have been duly authorized, until the contrary is proved.

relating to the subject-matter of the charge against the accused, shall Constitution of court 86.

(1) A court martial shall consist of a presiding ofcer and not not be a member of the court martial which tries that accused, nor shall martial.

less than two other members: he be judge advocate at the court martial.

4 of 1973, Sch.

88.

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

Provided that a court martial shall consist of a presiding ofcer and not less than four other members if- outside Kenya, as is specied in the order convening it.

(2) If the convening ofcer directs a court martial which is sitting (i) an ofcer is to be tried; or 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 58 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 59 some other place, it may adjourn for the purpose of sitting at that other that evidence unless it is corroborated by some other place.

material evidence supporting it and implicating the ac- Appointment of 89.

Except with the written consent of the Attorney-General, there cused; and judge advocate.

shall be a judge advocate at each court martial who shall be a magistrate (ii) if a person objects to being sworn on the ground either 12 of 1978, Sch., or an advocate appointed by the Chief Justice.

that he has no religious belief or that the taking of an oath 2 of 2002, s.

89.

is contrary to his religious belief, or if it is not reason- Provisions Relating to Trial ably practicable to administer an oath to a person in the Challenge.

90.

(1) An accused about to be tried by a court martial shall be manner appropriate to his religious belief, he shall make an afrmation instead.

entitled to object, on any reasonable grounds, to any member of the 4 of 1973, Sch.

court, whether appointed originally or in place of another member.

(3) An oath or afrmation required to be made under this section (2) To enable the accused to avail himself of the right of objection shall be in the prescribed form and shall be administered at the prescribed time, by the prescribed person and in the prescribed manner.

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 92.

(1) Subject to this section, a court martial shall sit in open Court martial to sit in shall be asked whether he objects to any of those members.

court and in the presence of the accused.

open court.

(3) Every objection to a member made by an accused shall be (2) A court martial may sit in closed court if it considers it considered by the other members of the court.

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 (4) If the objection is to the presiding ofcer and not less than one- that, subject to any exceptions the court may specify, the public shall third of the other members of the court allow it, the court shall adjourn be excluded from all or any part of the proceedings of the court if it and the convening ofcer shall appoint another presiding ofcer.

appears to the court that any evidence to be given or statement to be (5) If the objection is to any other member of the court and not 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 less than one-half of the members entitled to vote allow it, the member directly or indirectly endanger national security.

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 (3) A court martial shall sit in closed court while deliberating on in the prescribed manner by another ofcer.

its nding or sentence on any charge.

Oaths and 91.

(1) An oath shall be administered to every member of a court (4) A court martial may sit in closed court on any other deliberation afrmations.

martial, to the judge advocate and to any person attending as ofcer amongst its members.

under instruction, shorthand writer or interpreter.

(2) Every witness before a court martial shall give evidence on (5) Where a court martial sits in closed court, no person shall oath: be present except the members of the court and such other persons as may be prescribed.

Provided that- 93.

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

(i) if a child called as a witness does not in the opinion of 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 the court understand the nature of the oath, his evidence court martial to answer any question or to produce any document which may be received unsworn if in the opinion of the court he could not be required to answer or produce in similar proceedings he is sufciently intelligent to justify his evidence being before a civil court.

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 (2) Notwithstanding subsection (1), a statutory declaration shall, in a trial by court martial, be admissible as evidence of the facts declared 60 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 61 in it in a case where, and to the extent to which, oral evidence to similar effect would be admissible in that trial: (b) refuses to swear an oath when duly required by a court Provided that a statutory declaration shall not be admitted in martial to do so; or evidence in a trial by court martial on behalf of either the prosecution (c) refuses to produce any document in his custody or under or the defence- his control which a court martial has lawfully required him (i) where the declaration is put forward on behalf of the to produce; or prosecution, unless a copy of the declaration has, not less (d) refuses, when a witness, to answer any question which a than seven days before the commencement of the trial, court martial has lawfully required him to answer; or been delivered to the accused; nor (e) wilfully insults any person who is a member of a court (ii) where the declaration is put forward on behalf of the martial or a witness or any other person whose duty it is to defence, unless a copy of the declaration has, not less attend the court, while that person is acting as a member of than seven days before the commencement of the trial, the court or is so attending, or wilfully insults any such person or within such shorter period as the court may allow, as aforesaid while that person is going to or returning from been delivered to the commanding ofcer of the ac- the proceedings of the court; or cused; nor (f) wilfully interrupts the proceedings of a court martial or (iii) in any case, if, within three days before the commence- otherwise misbehaves before the court; or ment of the trial or such longer period as the court may in special circumstances allow, the accused or the com- (g) does any other thing which would, if the court martial had manding ofcer of the accused has delivered a notice been a court of law having power to commit for contempt, in the prescribed form to the other of them requiring have been contempt of that court, that oral evidence shall be given instead of a statutory declaration; nor the presiding ofcer of the court martial may in writing report the contempt to any court of law having jurisdiction in the place where (iv) in any case, if the court martial is of the opinion that it the contempt is alleged to have been committed, being a court having is desirable in the interests of justice that oral evidence power to commit for contempt, and that court of law may thereupon should be given instead of a statutory declaration and inquire into the reported contempt and, after hearing any witnesses records that it is of that opinion.

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 (3) A court martial shall take judicial notice of all matters of defence, punish or take steps for the punishment of that person in the common knowledge, including all matters within the general service same way as if he had been guilty of contempt of the court to which knowledge of the court, and of all other matters of which judicial notice the contempt is reported.

would be taken in a civil court.

96.

(1) An accused charged before a court martial with an offence Power to convict of Privileges of 94.

A witness before a court martial or any other person whose under Part V may, if it is not proved that the offence was committed offence other than witnesses and others.

duty it is to attend the court is entitled to the same immunities and in circumstances involving a greater punishment, be convicted of the that charged.

privileges as a witness before the High Court.

offence as having been committed in circumstances involving a less Contempt of court 95.

Where in Kenya any person other than a person subject to punishment.

martial by civilian.

this Act- (2) An accused charged before a court martial with an offence 4 of 1973, Sch.

may be convicted of attempting to commit that offence.

(a) having been duly summoned to attend as a witness before a court martial, fails to comply with the summons; or (3) An accused charged before a court martial with attempting to commit an offence may be convicted on that charge notwithstanding 62 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 63 that it is proved that he actually committed the offence, (a) if the senior of the other members of the court is not below (4) Where an accused is charged before a court martial under the rank of captain or corresponding rank, the convening section 69 with attempting to commit a civil offence, he may be ofcer may appoint him presiding ofcer of the court and convicted on that charge notwithstanding that it is proved that he actually the trial shall proceed accordingly; and committed the civil offence.

(b) if he is below that rank, the convening ofcer shall dissolve (5) Where an accused is charged before a court martial with an the court.

offence under section 69, and- (4) Where a court martial is dissolved under this section, the (a) the corresponding civil offence is one in proceedings for accused may be tried by another court martial.

which, if he had been tried by a civil court for committing the 98.

(1) Subject to this section, every question to be determined on Decision of court offence in Kenya, he might have been convicted of another a trial by court martial shall be determined by a majority of the votes martial.

civil offence; and of the members of the court.

4 of 1973, Sch.

(b) the court nds that he has committed that other civil (2) In the case of an equality of votes on the nding, the court offence, shall acquit the accused.

he may be convicted of an offence under section 69 in respect of the (3) A conviction where the only punishment which the court commission of that other civil offence.

can award is death shall not have effect unless it is reached with the (6) An accused charged before a court martial with one of 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 offences specied in the rst column of the First Schedule, may be and the accused may be tried by another court.

convicted of the offence bearing the same number in the second column of that Schedule.

(4) Where the accused is convicted and the court has power to Dissolution of court 97.

(1) If, whether before or after the trial has begun, it appears sentence him either to death or to some other punishment, sentence of martial.

to the convening ofcer necessary or expedient in the interests of the death shall not be passed without the concurrence of all the members 4 of 1973, Sch.

administration of justice that a court martial should be dissolved, the of the court.

convening ofcer may by order dissolve the court martial.

(5) In the case of an equality of votes on the sentence, or on any (2) Without prejudice to the generality of subsection (1), if after question arising after the trial has begun, except the nding, the presiding the trial has begun- ofcer of the court shall have a second or casting vote.

(a) the court is, by reason of the death of one of the members 99.

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

or for any other reason, reduced below the legal minimum, martial on each charge shall be announced in open court.

the convening ofcer shall dissolve the court; (2) A conviction shall be, and shall be announced as being, subject (b) it is represented to the convening ofcer that owing to the to conrmation.

sickness or other incapacity of the accused it is impracticable having regard to all the circumstances to continue the trial (3) The sentence of a court martial, together with any within a reasonable time, the convening ofcer may dissolve recommendation to mercy, shall be announced in open court, and every the court.

sentence of a court martial shall be, and shall be announced as being, subject to conrmation.

(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- 64 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

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

Where accused 100.

(1) Where, on the trial of a person by court martial, the court provided, those set out in the following scale- incapable of making is of the opinion that he is of unsound mind and consequently incapable (a) death; defence.

of making his defence, the court shall so nd.

(b) imprisonment; is- (2) A nding under subsection (1) shall not have effect until it (c) dismissal from the armed forces; (a) conrmed by an ofcer who would have had power to (d) reduction in rank by one rank; conrm a nding of guilty made by the same court martial; and (e) forfeiture of seniority of rank in the prescribed manner; (b) promulgated.

(f) a ne not exceeding the equivalent of three months pay; (3) Where a nding under subsection (1) has been conrmed (g) severe reprimand or reprimand; and promulgated, it shall forthwith be reported to the President, and the accused shall be kept in custody during the Presidents pleasure in (h) admonition; such place and manner as the President may direct, and pending the Presidents directions the accused shall be kept in service custody.

(i) where the offence has occasioned any expense, loss or Where accused 101.

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

is of the opinion that he did the act or made the omission charged but was and in relation to an ofcer references in this Act to punishments are insane so as not to be responsible for his acts or omissions at the time references to those punishments.

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 (2) For the purposes of this Act, a punishment specied in any was insane as aforesaid when he did the act or made the omission.

paragraph of the scale contained in subsection (1) shall be treated as less than the punishments specied in the preceding paragraphs, and greater (2) Where under subsection (1) the court or the conrming ofcer than those specied in the succeeding paragraphs, of the scale.

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 (3) Except where expressly provided by this Act, not more than power to substitute for that nding a nding of guilty; but otherwise the one punishment shall be awarded under this section for one offence.

provisions of this Act as to revision, conrmation and review (and in particular the provisions which confer power to substitute for a nding (4) Stoppages may be awarded either in addition to or without any other nding which could have been come to by the same court any other punishment.

martial) shall apply in relation to a nding under subsection (1) as they apply in relation to a nding of guilty.

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

(3) Where a nding under subsection (1) has been conrmed and promulgated, it shall forthwith be reported to the President, and (6) Where an ofcer is sentenced by a court martial to the accused shall be kept in custody during the Presidents pleasure in imprisonment, he shall also be sentenced to dismissal from the armed such place and manner as the President may direct, and pending the forces; and, if the court martial fails to sentence him to such dismissal, Presidents directions the accused shall be kept in service custody.

the sentence of imprisonment shall not be invalid but shall be deemed Punishments to include a sentence of such dismissal.

Punishment of 103.

(1) The punishments which may be awarded to a serviceman servicemen.

Punishment of 102.

(1) The punishments which may be awarded to an ofcer by sentence of a court martial are, subject to the limitations hereinafter 66 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 67 provided, those set out in the following scale- (6) In the case of a warrant ofcer or non-commissioned ofcer, (a) death; a severe reprimand or a reprimand may be awarded by a court martial (b) imprisonment; in addition to forfeiture of seniority of rank or a ne.

(7) Where an offender is on active service on the day of (c) dismissal from the armed forces; the sentence, a ne may be awarded in addition to active service (d) where the offender is on active service on the day of punishment.

the sentence, active service punishment for a period not (8) Stoppages may be awarded by a court martial either with or exceeding ninety days; without any other punishment.

(e) in the case of a warrant ofcer or non-commissioned ofcer, (9) Active service punishment shall consist of such duties or drills reduction in rank to private or corresponding rank, or any (in addition to those which the offender might be required to perform if less reduction in rank; he were not undergoing punishment) and such loss of privileges, as may be prescribed, and may include connement in such place and manner (f) in the case of a warrant ofcer or non-commissioned ofcer, as may be prescribed and such personal restraint which is necessary to forfeiture of seniority of rank in the prescribed manner; prevent the escape of the offender as may be prescribed.

(g) a ne not exceeding the equivalent of three months pay; 104.

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

severe reprimand or reprimand; whether by stealing it, by receiving or retaining it knowing or having reason to believe it to have been stolen, by fraudulently misapplying it (i) admonition; or by any other means.

(j) where the offence has occasioned any expense, loss or (2) If any of the property unlawfully obtained has been found in damage, stoppages.

the possession of the offender, it may be ordered to be delivered or paid to the person appearing to be its owner.

(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 (3) If there has been found in the possession of the offender any than the punishments specied in the preceding paragraphs, and greater property (other than money) appearing to have been obtained by him by than those specied in the succeeding paragraphs, of the scale.

the conversion or exchange of any of the property unlawfully obtained, the property may be ordered to be delivered to the person appearing to (3) Except where expressly provided by this Act, not more than be the owner of the property unlawfully obtained.

one punishment shall be awarded under this section for one offence.

(4) Where money is found in the possession of the offender, (4) Where a serviceman is sentenced by a court martial to whether or not it appears to have been obtained as aforesaid, or any imprisonment, he may in addition be sentenced to dismissal from the pay or other money is due or is to become due to the offender, an order armed forces.

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 (5) Where a warrant ofcer or non-commissioned ofcer or towards compensation for the loss caused to him by the offence, in is sentenced by a court martial to imprisonment or active service so far as not otherwise made good under this Act or by the recovery of punishment, he shall also be sentenced to reduction in rank to private the property unlawfully obtained.

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 (5) Where any of the property unlawfully obtained has been sold deemed to include a sentence of such reduction in rank.

or given in pawn to some other person who did not then know that it had 68 CAP.

199 Armed Forces [Rev.

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199 69 been unlawfully obtained, an order may be made that that other person, although the conviction is not quashed; 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 (iii) the prescribed steps shall be taken for the safe custody, offender (whether or not the money appears to be proceeds of the sale during the period during which the operation of the order or giving in pawn) or out of any pay or other money due or to become is suspended, of the property ordered to be restored or due to the offender, as or towards compensation for the loss caused to the money ordered to be paid.

him in consequence of the sale or giving in pawn.

(10) Notwithstanding subsection (9) an order under this section (6) Where any of the property unlawfully obtained has been given shall not be suspended, so far as it relates to the restoration of property in exchange to some other person who did not then know that it had to the person appearing to be its owner, if the court, ofcer or authority been unlawfully obtained, an order may be made that that other person, making the order directs to the contrary in any case in which the title upon restoring to its owner the property given as aforesaid, shall have to the property appears to be undisputed.

restored to him the property given by him in exchange for the property unlawfully obtained.

(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 (7) An order under this section may be made by the court martial recover any property delivered or money paid in pursuance of the order by whom the offender is convicted or by the commanding ofcer or from the person to whom it is delivered or paid.

appropriate superior authority making the nding of guilty, as the case may be, or by the conrming ofcer or by any reviewing authority; PromulgationPetitions and in this section appearing means appearing to the court, ofcer Promulgation of or authority making the order.

105.

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

(8) An order made under this section by a court martial shall communicated to the accused or in such other manner as may be not have effect until it is conrmed by the conrming ofcer; and the prescribed or as the conrming ofcer or reviewing authority, as the provisions of this Part as to the conrmation, revision and review of the case may be, may direct.

proceedings of court martial shall apply to an order under this section as they apply to a sentence.

106.

(1) At any time after a court martial has convicted and Petition against nding or sentence.

sentenced a person, but not later than the prescribed time after (9) The operation of an order under this section shall be conrmation is completed, the convicted person may in the prescribed suspended- manner present a petition against the conviction or the sentence or (a) if an application for leave to appeal to the High Court against both.

the conviction is duly lodged, until either the application is (2) Where the person is sentenced to death, the sentence shall not nally refused or is withdrawn or the appeal is determined be executed until his case has been reviewed under section 111.

or abandoned; (b) in any other case, until the expiration of the period prescribed Conrmation, Revision and Review under Part IX as the period within which such an application 107.

Where a court martial convicts a person of an offence, the Conviction and may be made, 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 and where the operation of such an order is suspended by this of the court.

section- 108.

(1) A conrming ofcer shall deal with the conviction and Powers of conrming (i) it shall not take effect if the conviction is quashed on sentence of a court martial either- ofcer.

appeal; (a) by withholding conrmation, if he is of opinion that the (ii) the High Court may by order annul or vary the order nding of the court is unreasonable, or cannot be supported, 70 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 71 having regard to the evidence, or involves a wrong decision (6) A conviction, nding or sentence substituted by the conrming on a question of law, or that on any ground there was a ofcer, or any sentence having effect after the conrming ofcer has miscarriage of justice; or remitted or commuted punishment, shall be treated for all purposes as (b) by conrming the conviction or sentence; or a conviction, nding or sentence of the court duly conrmed.

(7) The conrmation of a conviction or sentence shall not be (c) by referring the conviction or sentence or both for deemed to be completed until the conviction or sentence has been conrmation to a higher conrming ofcer; or promulgated; and in the event of any such substitution, remission or commutation as aforesaid the conviction, nding or sentence shall (d) by directing that a court martial shall revise the conviction be promulgated as it has effect after the substitution, remission or under section 110.

commutation.

(2) Instead of withholding conrmation of the conviction, a (8) Where the conrming ofcer withholds conrmation, the conrming ofcer may, if- decision shall be promulgated and shall have effect as from the date (a) some other conviction could have been validly made by the of promulgation.

court martial on the charge before it; and 109.

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

(b) he is of opinion that the court martial must have been satised conrm the conviction and sentence of a court martial, that is to say- of the facts necessary to justify that other conviction, (a) the convening ofcer of the court martial or any ofcer superior in command to him; or 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 (b) failing him, an ofcer appointed by the Defence Council be exercised.

to act as conrming ofcer, whether for a particular case or for a particular class of cases.

(3) Where it appears to a conrming ofcer that a sentence is invalid, he may instead of withholding conrmation of the sentence (2) The following persons shall not have power to conrm the substitute for it a sentence of any punishment or punishments which conviction or sentence of a court martial- could have been awarded by the court martial, not being greater than the punishment or the greatest of the punishments awarded by the (a) a person who was a member of the court martial; court and not in his opinion more severe than that punishment or those punishments.

(b) a person who as commanding ofcer of the accused investigated the allegations against him, or who is for the (4) In conrming a sentence, a conrming ofcer may- time being the commanding ofcer of the accused; (a) remit in whole or in part any punishment awarded by the (c) a person who, as appropriate superior authority, investigated court martial; or the allegations against the accused.

(b) commute any such punishment for one or more of the (3) An authorization authorizing the convening of a court martial punishments provided by this Act, being less than the may reserve for conrmation by superior authority convictions or punishment commuted.

sentences, or both, in such circumstances as may be specied by or under the authorization, and the powers conferred by subsection (1) (5) In conrming a sentence, a conrming ofcer may postpone shall be exercisable subject to any such reservation.

the carrying out of the sentence for such time as he considers expedient, and a conrming ofcer may extend or terminate any postponement (4) Where a person is convicted by a court martial held on board made under this subsection.

a ship and is disembarked before the conviction or sentence has been conrmed, it may be conrmed by any ofcer having command over 72 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 73 the person or over the area in which he then is, being an ofcer having be required to be announced in open court.

power to conrm convictions and sentences of courts martial of the same kind.

111.

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

conviction of court 110.

(1) A conrming ofcer may direct that a court martial shall of a conviction or sentence a petition is duly presented under section martial.

revise any conviction made by the court in any case where it appears 106 against the conviction or sentence then, subject to this section, the to him that- conviction or sentence shall be so reviewed as soon as practicable after the presentation of the petition and after consideration of the matters (a) the conviction was against the weight of evidence; or set forth in it: (b) some question of law determined at the trial and relevant Provided that if the petitioner also appeals or has appealed under to the conviction was wrongly determined.

Part IX the review need not be made or continued.

(2) Any such direction shall be accompanied by the necessary (2) The reviewing authorities for the purposes of this Act- directions for the reassembly of the court, and shall contain a statement of the reasons for the direction.

(a) the Defence Council; or (3) On a revision of a conviction, the court shall reconsider the (b) any ofcer superior in command to the conrming ofcer.

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 (3) A conviction and a sentence of a court martial shall not be originally have made at the trial in place of the conviction.

treated as a conviction or a sentence of the court until conrmed: (4) On a revision of a conviction the court shall not have power Provided that- to hear further evidence.

(i) this subsection does not affect the keeping of the accused (5) Where on a revision of a conviction the court either adheres in custody pending conrmation, revision or approval, or to the conviction or substitutes for it a conviction of another offence, or pending the disposal of a petition or appeal; and of the same offence in different circumstances, the court may substitute a different sentence for the original sentence: (ii) a sentence of death passed on a person on active service and the conviction in consequence of which it was passed Provided that the court shall not have power to substitute a need not be reviewed if in the opinion of the conrming sentence of a punishment greater than the punishment or the greatest ofcer it is essential in the interests of discipline and for of the punishments awarded by the original sentence, or to substitute securing the safety of the force with which the person a sentence which in the opinion of the court is more severe than the sentenced is present that the sentence should be carried original sentence.

out at once, and the conrming ofcer records that opin- ion on conrming the sentence.

(6) The conrming ofcer shall not have power to direct the revision of any substituted conviction or nding come to by the court (4) On a review under this section, the reviewing authority on a previous direction of the conrming ofcer, or the revision of may- 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 (a) in so far as the review is of a conviction, quash the conviction court on any such revision as it applies to their deliberations on the and, if the sentence relates only to the conviction quashed, original nding or sentence, and any substituted conviction, nding the sentence; or or sentence shall be treated for all purposes as an original conviction, nding or sentence of the court: (b) in so far as the review is of a sentence, quash the sentence; Provided that the decision of the court on the revision shall not or 74 CAP.

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199 75 (c) in any case, exercise the like powers of substituting period, his personal representative or any person who in the opinion of convictions and ndings, substituting sentences and remitting the Commander ought to be treated as his personal representative for or commuting punishment as are conferred on a conrming the purposes of this section shall, subject to this section, be entitled to ofcer by subsections (2), (3) and (4) of section 108, 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 and any substituted conviction, nding or sentence, or sentence having of the prescribed fee.

effect after the remission or commutation of punishment, shall be treated for all purposes as a sentence of the court duly conrmed.

(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 (5) Where a reviewing authority exercises any of the powers is requisite for reasons of security that the proceedings or a part thereof conferred by subsection (4), the determination of the authority shall be should not be disclosed, the applicant shall not be entitled to a copy of promulgated and shall have effect as from the promulgation thereof.

the proceedings or of that part.

Reconsideration 112.

(1) A sentence of imprisonment may be reconsidered by (5) In this section, the prescribed period, in relation to any person of sentences of the Commander; and if on any such reconsideration it appears that the tried by court martial, means the period of ve years beginning with the imprisonment.

conduct of the offender since his conviction has been such as to justify date of his acquittal or, where he was convicted, of the promulgation of remission of the sentence, whether in part or in whole, the Commander the conviction and sentence or, where a conviction was not conrmed, may remit it accordingly.

of the promulgation of the withholding of conrmation: (2) The power to reconsider a sentence may be exercised at Provided that, where the proceedings relate to two or more charges any time after conrmation, and where after a review a sentence and the person tried was acquitted on one or more of the charges and remains effective it shall be reconsidered at such intervals as may be convicted on another or others, the prescribed period shall be the prescribed: period of ve years beginning with the date of the promulgation of the conviction or convictions and the sentence thereon or of the withholding Provided that delay in complying with this subsection does not of conrmation of that conviction or those convictions.

invalidate the sentence.

(6) A reference in this section to the record of the proceedings of Death sentence 113.

Without prejudice to section 124, a sentence of death shall a court martial includes a reference to the record of any proceedings requires Presidents not be carried out unless it has been approved by the President: with respect to the conrmation, revision or review of the conviction approval.

and sentence of the court martial.

Provided that a sentence of death passed on a person on active service may be carried out without the approval of the President under part IXappeals from Courts martIal that section, where in the opinion of the conrming ofcer it is essential 115.

(1) Subject to this Part, where a person has been convicted Appeal to High in the interests of discipline and for securing the safety of the force by a court martial- Court.

with which the person sentenced is present that the sentence should be 14 of 1971, Sch., carried out at once, and the conrming ofcer records that opinion on (a) the person convicted may, with the leave of the High Court 19 of 1984, 12 of 2012, Sch.

conrming the sentence.

Custody of court given pursuant to section 116, appeal to the High Court martial records and 114.

(1) The record of the proceedings of a court martial shall be against the conviction, or against the sentence, or against right of accused to kept in the custody of the Commander for the prescribed period.

both; copy.

(b) the Director of Public Prosecutions may, in any case, within (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 forty days of the promulgation of the conviction, appeal to the prescribed period a copy of the record of the proceedings of the the High Court against the sentence.

court, on payment of the prescribed fee.

(2) Subject to this Part, where a person has been acquitted of a (3) Where a person tried by court martial dies within the prescribed charge by a court martial, the Attorney-General may, within forty days 76 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 77 of the acquittal, appeal to the High Court against the acquittal.

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 (3)The decision of the High Court on any appeal under this Act miscarriage of justice has actually occurred.

shall be nal and shall not be subject to any further appeal.

(2) The court shall allow an appeal against acquittal and convict Application for leave 116.

(1) Leave to appeal to the High Court shall not be given unless the accused if it considers that- 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.

(a) the evidence was such that the person acquitted should have (2) An application for leave to appeal shall be in the prescribed been convicted; or form and shall specify the grounds on which leave to appeal is sought, (b) the acquittal involves a wrong decision on a question of and shall give such other particulars as may be prescribed.

law, (3) Except in the case of a conviction involving sentence of death, and shall pass such sentence as it thinks proper, and otherwise it shall the High Court may extend the period within which an application dismiss the appeal; and section 96 shall apply as it applies to a trial by for leave to appeal must be lodged, whether that period has expired court martial.

or not.

(3) On an appeal against sentence, the court may reduce or increase (4) In considering whether or not to give leave to appeal, the High the sentence or alter the nature of the sentence, as it thinks proper.

Court shall have regard to any expression of opinion made by a judge Powers of court in advocate that the case is at one for appeal, and, if any such expression 119.(1) If the High Court considers that an appellant- special cases.

is made, may without further proceedings give leave to appeal.

(a) was not properly convicted on a particular charge brought (5) Where the High Court dismisses an application for leave to against him before the court martial which tried him; but appeal, it may, if it considers the application frivolous or vexatious, order that any sentence passed by the court martial shall run from the (b) was properly convicted on some other charge so brought, day on which the Court dismisses the application.

then, if the sentence passed by the court martial on the Appellant may 117.

An appellant may, if he so desires, present his case in appellant was not one which could lawfully be passed for present case in writing.

the offence of which he was convicted on that other charge, writing.

the High Court shall pass on the appellant such sentence as it thinks proper, in substitution for the sentence passed on 14 of 1971, Sch.

him by the court martial.

118.

(1) Subject to section 119, the High Court shall allow an Determination of appeal against conviction and quash the conviction if it considers that (2) Where an appellant has been convicted of an offence, and - appeal in ordinary the conviction- (a) the court martial by which he was tried could lawfully have cases.

convicted him of some other offence; and (a) is unreasonable; or (b) cannot be supported, having regard to the evidence; or (b) it appears to the High Court that the court martial must have been satised of facts which proved him guilty of that (c) involves a wrong decision on a question of law, other offence, the High Court may, instead of allowing or dismissing the appeal, or that on any ground there was a miscarriage of justice, and otherwise it shall dismiss 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 Provided that the High Court may, notwithstanding that it offence and not one of greater severity), in substitution for the sentence 78 CAP.

199 Armed Forces [Rev.

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199 79 passed on him by the court martial.

appeal, except where- appellant.

(3) Where- (a) rules of court provide that he shall have the right to be (a) an appellant has been convicted of an offence committed present; or in circumstances involving the greater of two punishments, (b) the High Court gives him leave to be present; and it appears to the High Court that the court martial ought to have found him guilty of an offence as being committed and accordingly any power of the High Court under this Part to make in circumstances involving the less punishment; or a determination or pass a sentence may be exercised notwithstanding (b) an appellant has been convicted of an offence and it the absence of the appellant.

appears to the High Court that the court martial ought to 123.

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

have convicted him of the offence subject to exceptions or General shall make arrangements for the defence of the appeal.

variations, 124.

Where a person is convicted by court martial and sentenced Person sentenced the High Court may, instead of allowing or dismissing the appeal, to death- to death to have substitute for the conviction a conviction of the offence as being opportunity to committed in circumstances involving the less punishment or, as the case (a) the sentence shall not be executed until after the expiration of appeal.

may be, a conviction of the offence subject to exceptions or variations, the period within which an application for leave to appeal to and pass on the appellant such sentence as it thinks proper (being a the High Court against the conviction may be lodged; and sentence which could lawfully have been passed for the offence specied or involved in the substituted nding and not one of greater severity) in (b) if such an application is duly lodged, the sentence shall not substitution for the sentence passed on him by the court martial.

be executed until either the application is nally refused or is withdrawn or (if it is granted) the appeal is determined (4) If on an appeal the High Court considers that the appellant or abandoned: 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 Provided that the foregoing provisions of this section do not or the omission was made, it shall quash the conviction and substitute apply to a sentence of death passed on a person on active service, where a special nding that the appellant was guilty of the act or omission in the opinion of the conrming ofcer it is essential in the interests charged but was insane as aforesaid when he did the act or made the of discipline and for securing the safety of the force with which the omission, and section 101 (3) shall apply accordingly.

person sentenced is present that the sentence should be carried out at once, and the conrming ofcer records that opinion on conrming (5) The term of any sentence of imprisonment passed by the High the sentence.

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 125.

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

in the proceedings appealed against, and a sentence passed by the High custody at and brought back from any place at which he is entitled to Court shall be deemed for the purposes of this Act to be a sentence be present for the purposes of this Part in the prescribed manner, and passed by the court martial and conrmed.

the High Court may order him to be taken to any prescribed place for Court may appoint 120.

The High Court may appoint a person with special or expert the purpose of any proceedings of the High Court.

assessor.

knowledge to act as assessor, if the court considers that such knowledge 126.

Upon the hearing of an appeal under this Part, the High Court Composition of is required for the proper determination of an appeal before it.

shall consist of one or more judges.

court.

121.

(Repealed by 12 of 1978, Sch.).

127.

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

heard in absence of 122.

An appellant shall not be entitled to be present at the hearing registrar, in accordance with rules of court, a record of the proceedings of an appeal or at any proceedings preliminary or incidental to such an of the court martial including any proceedings with respect to the 80 CAP.

199 Armed Forces [Rev.

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199 81 conrmation, revision or review of the conviction and sentence of the respect of an offence under Part V becomes unlawfully at large during court martial, and any petition presented by the person convicted.

the currency of the sentence, no account shall be taken, in calculating Duties of registrar.

the period for which he is liable to be imprisoned in pursuance of the 128.

(1) The registrar shall take all necessary steps for obtaining sentence, of the time beginning with the day on which he became at the determination of an application or appeal under this Part, and shall large and ending with the day on which he is taken into service custody obtain and lay before the High Court in proper form all documents, or the custody of a civil authority or (not having been taken into such exhibits and other things relating to the proceedings before the court custody) returns to the place in which he was imprisoned before he martial which appear necessary for the proper determination of the become unlawfully at large: application or appeal.

Provided that, if he satises the prescribed authority that during (2) The registrar shall furnish the necessary forms and instructions any part of such time he was in the custody of a civil authority otherwise relating to applications for leave to appeal under this Part to any person than on account of an offence committed by him while unlawfully at who asks for them, to persons in charge of prisons and to such other large, such part shall not be disregarded in calculating the period for persons as he thinks t; which he is liable to be imprisoned in pursuance of the sentence.

and every person in charge of a prison shall cause the forms and (2) In subsection (1), civil authority means an authority, other instructions so furnished to be placed at the disposal of persons than a service authority, of Kenya or of a foreign country (including a imprisoned who desire to make application for leave to appeal under police ofcer), authorized by law to detain persons.

this Part.

(3) A person who- Saving of prerogative 129.

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

prerogative of mercy.

(a) is serving a sentence of imprisonment in a civil prison in 130.

Subject to this Part and to any rules of court, the provisions respect of an offence under Part V; and Procedure.

of the Criminal Procedure Code relating to the hearing of appeals (b) after being temporarily released under some law, is at large Cap.

75.

from subordinate courts shall apply to the hearing and determination at any time during the period for which he is liable to be of appeals under this Part.

imprisoned in a civil prison in pursuance of his sentence, part XproVIsIons ConCernIng trIal and punIshment shall be deemed to be unlawfully at large if the period for which he was Commencement 131.

Subject to sections 108 (5), 116 (5) and 135, a sentence of temporarily released has expired or if an order recalling him has been of sentence of imprisonment or of active service punishment in respect of an offence made in pursuance of that law.

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 (4) Without prejudice to subsection (1), where any person serving a sentence of imprisonment for an offence under Part V has in the awarded by the commanding ofcer, as the case may be: prescribed circumstances been temporarily released on compassionate grounds, no account shall be taken, in calculating the period for which Provided that, where a person after being convicted or found guilty of an offence is convicted or found guilty of another offence 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 either before sentence is passed upon him under the rst conviction or with the day on which he is required to return to custody.

before the expiration of that sentence, any sentence of imprisonment or active service punishment which is passed upon him in respect of (5) A person who is- the subsequent conviction shall be executed after the expiration of the former sentence, unless the court martial or other authority imposing the (a) released as mentioned in subsection (4) for any period; or sentence directs that it shall be executed concurrently with the former sentence or any part thereof.

(b) otherwise allowed out of service custody, in pursuance of Duration of sentence of imprisonment.

132.

(1) Where a person serving a sentence of imprisonment in regulations made under this Act, for any period or subject to any condition, 82 CAP.

199 Armed Forces [Rev.

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

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 (7) Without prejudice to the further suspension of the earlier unlawfully at large.

sentence or punishment, termination under subsection (6) of this section of the suspension of that sentence or punishment shall not be Service of sentence 133.

Where a sentence of imprisonment is passed on or awarded affected by the latter sentence or punishment not being conrmed or of imprisonment to a person for an offence under Part V, the persons commanding ofcer by its being quashed.

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 (8) Where the sentence or punishment of a person in custody is he has served his sentence or the person is otherwise lawfully required suspended, he shall thereupon be released, and no suspended sentence to be delivered from the prison.

or punishment shall be executed until the suspension is terminated.

Committed to civil 134.

A person who is sentenced to death or imprisonment, and who 136.

Where a person is sentenced by a court martial held outside Sentence of prison.

is committed or transferred to a civil prison shall while in that prison Kenya to imprisonment for a term exceeding forty-two days, he shall imprisonment passed be imprisoned and otherwise dealt with in the same manner as a person be returned to Kenya as soon as practicable after the sentence has been outside Kenya.

imprisoned therein under a similar sentence of civil court.

conrmed.

Suspension 135.

(1) Without prejudice to section 108 (5), a conrming ofcer, 137.

No action shall lie in respect of anything done by any person Indemnity for person of sentence or in conrming a sentence passed by a court martial on a serviceman, may in pursuance of a sentence of imprisonment for an offence under Part acting under warrant.

punishment.

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

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.

(2) A commanding ofcer may recommend to the Commander 138.

(1) The following provisions shall have effect with respect Proof of certain facts that a punishment awarded on a case being dealt with summarily shall by documentary to evidence in proceedings under this Act, whether before a court be suspended wholly or in part, and the Commander may order that the evidence.

sentence be suspended wholly or in part accordingly.

martial, a commanding ofcer, the appropriate superior authority, a court or otherwise.

12 of 1978, Sch., (3) A sentence passed on or punishment awarded to a serviceman 17 of 1979.

Sch.

(2) A document purporting to be a copy of the attestation paper which is not for the time being suspended may, on the review or reconsideration of the sentence or punishment be suspended wholly or signed by any person and to be certied to be a true copy by a person in part by order of the authority reviewing or reconsidering the sentence stated in the certicate properly to have the custody of the attestation or punishment.

paper shall be evidence of the enlistment of the person attested.

(4) The suspension under this section of a sentence or punishment (3) The attestation paper purporting to be signed by a person on may (without prejudice to its again being re-effected) be terminated on his enlistment shall be evidence of his having given the answers to review or reconsideration of a sentence or punishment by an order of the questions which he is therein recorded as having given.

authority reviewing or reconsidering the sentence or punishment.

(4) A letter, return or other document stating that a person (5) A sentence or punishment which is suspended shall be (a) was or was not serving at any particular time or during any reviewed, under section 83 or section 111, at intervals of not more particular period in the armed forces or in any particular than three months, and if the suspension is not previously terminated it shall be remitted by the reviewing authority after not more than one service of the armed forces or part thereof, or was discharged year from the date of award.

therefrom at or before any particular time; or (b) held or did not hold at any particular time any particular rank (6) Where, while a persons sentence or punishment is suspended or appointment in any particular service of the armed forces, under this section, the person receives a sentence or punishment for a or had at or before any particular time been attached, posted fresh offence, the suspended sentence or punishment shall be reviewed; or transferred to the armed forces or any particular service of and, if the reviewing authority terminates the suspension it shall direct 84 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 85 the armed forces or part thereof, or at any particular time or during any particular period was or was not serving or held (a) any formation or unit or body of men of the armed forces; or did not hold any rank or appointment in any particular or country or place; or (b) any command or other area, garrison or place; or (c) was or was not at any particular time authorized to use or wear any particular decoration, badge, wound stripe or (c) any aircraft, ship or train, emblem, shall in proceedings against that person be evidence of the matters shall, if purporting to be issued by the President, the Chief of General stated in the certicate.

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 (9) A certicate purporting to be signed by the Defence Council subsection, the armed forces includes the Kenya Military Forces.

that any unit is a unit of the armed forces shall be conclusive evidence (5) A record made in any service book or other prescribed of the facts stated therein.

document, being a record made in pursuance of this Act or otherwise (10) A certicate purporting to be signed by a persons in pursuance of service duty, and purporting to be signed by the commanding ofcer stating that such person is or is not a member of commanding ofcer or by any person whose duty it was to make the any unit of the armed forces shall, in proceedings against such person, record, shall be evidence of the facts stated therein; and a document be evidence of the facts stated in such certicate.

purporting to be a copy of any such record (including the signature Proof of outcome of thereto) and to be certied to be a true copy by a person stated in the 139.

(1) Where a person subject to this Act has been tried by a civil trial.

certicate properly to have the custody of the service book or other civil court (whether at the time of the trial he was subject to this Act or prescribed document shall be evidence of the record.

not), a certicate of the court- (6) A document purporting to be issued by order of the President, (a) that the person has been tried by the court for a particular the Chief of General Staff or the Commander and to contain instructions offence; 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 (b) as to the result of the trial; making of the orders and of their contents.

(c) as to what judgment or order was given or made by the (7) A certicate purporting to be signed by the President or the court; Chief of General Staff, or by a person authorized in writing by either of them, and stating- (d) that other specied offences were taken into consideration (a) that a decoration of a description specied in or annexed to at the trial, the certicate is a service decoration; or shall for the purposes of this Act be evidence of the matters so (b) that a badge, wound stripe or emblem of a description certied.

specied in or annexed to the certicate is one supplied or (2) A document purporting to be a certicate under this section authorized by the President or the Chief of General Staff, and to be signed by a judge or a magistrate shall, unless the contrary is shown, be taken to be such a certicate.

shall be evidence of the matters stated in the certicate.

140.

(1) The original proceedings of a court martial purporting Evidence of (8) A certicate purporting to be signed by a persons commanding to be signed by the presiding ofcer of the court shall, on production proceedings of court ofcer or by an ofcer purporting to be authorized by him to give the from proper custody, be admissible in evidence before a court martial martial.

certicate, and stating the contents of, or of any part of, standing orders or a civil court.

4 of 1973, Sch.

or other routine orders of a continuing nature made for- 86 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 87 (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 (4) Where apart from this subsection any provision of this Act to be a true copy by a person stated in the document properly to have would under subsection (3) apply to a person, in relation to different the custody of the record shall be evidence of the record or of that part offences, as to a person having different ranks, it shall apply to him as thereof.

to a person having the lower or lowest of those ranks.

Trial of offence after 141.

(1) Subject to section 142, where a person subject to this 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, offender ceases to be Act has committed, or is reasonably suspected of having committed, other than an offence under section 25, section 26 or section 31 (1) (a), trial of offences.

subject to Act.

an offence under Part V, he shall in relation to that offence or suspected unless the trial is begun within three years after the commission of the I4 of l971, Sch.

offence be treated, for the purposes of the provisions of this Act offence, any period during which he was illegally absent or a prisoner relating to arrest, keeping in custody, investigation or charges, trial of war being disregarded: and punishment by court martial (including conrmation, review and reconsideration) and execution of sentences, as being still subject to Provided that- this Act notwithstanding that he may have ceased to be subject to this Act.

(i) in the case of an offence under section 69, where any writ- (2) Where a person- ten law requires that proceedings for the corresponding civil offence shall be brought within a particular time, (a) is, by virtue of subsection (1), treated as being still subject that time limit shall apply to the trial of the offence under to this Act and is in service custody; and that section instead of three years (the same periods being disregarded); and (b) while in such custody (whether before or after trial) commits, (ii) subject to any time limit applicable by virtue of para- or is reasonably suspected of having committed, an offence graph (i) of this proviso, a person may be tried by court which, if he were actually subject to this Act, would be an martial for a civil offence committed outside Kenya offence under Part V, notwithstanding that it was committed more than three years before the beginning of the trial, if the Attorney- he shall, in relation to that offence or suspected offence, be treated, for General consents to the trial.

the purposes of the provisions of this Act mentioned in subsection (1) and the provisions of this Act relating to dealing summarily with charges, (2) A person shall not be tried by court martial for an offence under 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 Part V, other than an offence under section 25, section 26 or section 31 to this Act thereafter.

(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 (3) Where by virtue of either or both of subsections (1) and (2) a outside Kenya and the Attorney-General consents to the trial.

person is treated as being at any time subject to this Act, such treatment (3) Where a person who has committed an offence under section shall extend to him- 31 (1) (a) (otherwise than on active service) has since the offence served (a) if he holds any rank in the armed forces, as to a person as a member of the armed forces continuously in an exemplary manner having that rank; for not less than three years, he shall not be tried for that offence.

(b) in any other case, as to a person having the rank which he 143.

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

held when he was last actually subject to this Act: 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.

Provided that, when he has been sentenced for the offence in question and the sentence has been conrmed, the said treatment shall (2) Where a person- extend to him (in any case) as an ofcer or serviceman, as the case may be.

88 CAP.

199 Armed Forces [Rev.

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199 89 (a) is tried by a civil court for a civil offence; and commanding ofcer of a person alleged to have committed the offence if, and only if, that ofcer or any ofcer authorized (b) has already been sentenced to or awarded punishment for by him in relation to the alleged offence has with knowledge an offence under Part V consisting of an act or omission of all relevant circumstances informed him that he will not be that constitutes (whether wholly or in part) the civil offence, charged therewith; Cap.

2.

section 63 of the Interpretation and General Provisions Act shall be construed as if the words but shall not be liable (e) a person ordered under section 52 (2) to be imprisoned for to be punished twice for the same offence were omitted an offence under that section shall be deemed to have been therefrom, but the civil court shall, in sentencing the person, tried by court martial for the offence.

have regard to the punishment imposed in respect of the offence under Part V.

(3) Where conrmation of a nding of guilty is withheld, the Persons not to be accused shall not be tried again by court martial for the offence unless tried under this Act 144.

(1) Where a person subject to this Act- the order convening the second court martial is issued not later than for offences already twenty-eight days after the promulgation of the decision to withhold disposed of.

(a) has been tried for an offence by a competent civil court or conrmation.

under Part V, or has had an offence committed by him taken into consideration by any such court or by a court martial (4) Except as provided by the foregoing provisions of this section, in sentencing him; or proceedings for an offence under Part V (whether before a court martial or before a commanding ofcer or appropriate superior authority) shall (b) has been charged with an offence under Part V, and has not be barred on the ground of condonation.

had the charge dismissed, or has been found guilty on the charge, by his commanding ofcer or the appropriate superior part XIforfeItures and deduCtIons authority; or 145.

(1) No forfeiture of the pay of an ofcer or serviceman Forfeitures and (c) has had an offence condoned by his commanding ofcer, 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.

he shall not be liable in respect of that offence to be tried by court martial prescribed.

or to have the case dealt with summarily.

(2) Notwithstanding that deduction is ordered from the pay of an (2) For the purposes of this section- 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 (a) a person shall not be deemed to have been tried for an offence purposes of this section.

under Part V if conrmation is withheld of a nding that he is guilty of the offence; (3) Notwithstanding that forfeiture of pay of an ofcer or serviceman for any period has been ordered, he shall be allowed to (b) a person shall not be deemed to have had an offence remain in receipt of pay at a rate not less than that prescribed for the committed by him taken into consideration by a court martial purposes of this section, but any amount which he should have forfeited in sentencing him if conrmation of the sentence of the court for that period may be recovered from him by deduction from pay after martial is withheld or the sentence is quashed; the end of the period.

(c) a case shall be deemed to have been dealt with summarily (4) Any amount authorized to be deducted from the pay of an by the commanding ofcer or appropriate superior authority ofcer or serviceman may be deducted from any balance (whether or not notwithstanding that the nding of that ofcer or authority representing pay) which may be due to him as an ofcer or serviceman, has been quashed, or the award of that ofcer or authority and references in this Act to the making of deductions from pay shall quashed or varied, on the review thereof; be construed accordingly.

146.

(1) The pay of an ofcer or serviceman shall be forfeited- Forfeiture of pay for (d) an offence shall be deemed to have been condoned by the 90 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 91 absence from duty 12 of l978, Sch., (a) for any day of absence in circumstances which constitute 148.

(1) Without prejudice to the provisions of this Act as to the Compensation for 17 of 1979, Sch.

loss occasioned an offence under section 31 or section 32 or, if the Chief of imposition of stoppages as a punishment, the following provisions shall by wrongful act or General Staff or an ofcer authorized by him so directs, for have effect where, after the prescribed investigation, it appears to the negligence.

any day of other absence without leave (other than absence Commander or an ofcer authorized by him in writing that any loss of, by reason of having been captured by the enemy); 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 (b) for any day of imprisonment or active service punishment to the person responsible).

which he is sentenced by a court martial or which is awarded by his commanding ofcer or the appropriate superior (2) The Commander or authorized ofcer may order the person authority, or imprisonment of any description to which he is responsible to pay a specied sum as or towards compensation for the liable by virtue of a sentence or order of a civil court; loss or damage, and any such sum may be deducted from his pay, so far (c) where he is convicted or found guilty of an offence under as it has not otherwise been paid by the person responsible.

Part V, for any day (whether before or after he is convicted (3) No order shall be made under subsection (2) if, in proceedings or found guilty) on which he is in hospital on account of before a court martial, the commanding ofcer or the appropriate sickness or injury certied by a medical ofcer to have been superior authority, the person responsible- occasioned by the offence.

(a) has been exonerated by a nding that he was not guilty of (2) The pay of an ofcer or serviceman shall be forfeited for any the wrongful act or negligence in question; or day of absence by reason of his having been captured by the enemy, if the Defence Council is satised that- (b) has been awarded stoppages in respect of the same loss or (a) he was captured through disobedience of orders or wilful damage, neglect of his duty; or but otherwise the fact that such proceedings have been brought in respect of the wrongful act or negligence in question shall not prevent (b) having been captured he failed to take any reasonable steps the making of an order under subsection (2).

available to him to rejoin the armed forces; or 149.

(1) Where damage occurs to any premises in which one or Deduction for (c) while in captivity he served with or aided the enemy in more units of the armed forces, or parts of such units, are quartered barrack damage.

the prosecution of hostilities or in the taking of measures or billeted, or any xtures, furniture or effects in or belonging to calculated to inuence morale, or in any other way such premises are damaged or lost, and it appears on investigation whatsoever not authorized by international usage.

in the prescribed manner that the damage or loss was occasioned by the wrongful act or negligence of persons belonging to any of the (3) Time shall be computed for the purposes of this section (and units or parts of units but that those persons cannot be identied, any in particular, as to the counting or disregarding of parts of days) in the person belonging to any of the units or parts of units may be required prescribed manner.

to contribute in the prescribed manner, towards compensation for the Deductions for damage or loss, such amount as may be determined to be just, and the penalties.

147.

(1) Where a ne is imposed on an ofcer or service man under amount may be deducted from his pay.

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

(2) Subsection (1) extends to vehicles, aircraft, ships and trains in (2) Where an ofcer or serviceman is charged with a civil offence which units or parts of units of the armed forces are being transported, (whether within or outside Kenya) and is sentenced or ordered by the and reference to premises, quartering and occupation shall be construed court to pay any ne, penalty, damages, compensation or costs, and accordingly.

the whole or part thereof is met by a payment made by or on behalf Remission of of any service authority, the amount of the payment may be deducted 150.

A forfeiture or deduction imposed under any of sections forfeitures and from his pay.

146, 147, 148 and 149 or under regulations made under this Act 92 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 93 deductions.

may be remitted by the Commander, or by such authority as may be (3) The police ofcer in charge of police may, to such extent and prescribed.

subject to such restrictions as he thinks proper, authorize any police ofcer to exercise his functions under this section on his behalf, and the part XIIbIlletIng and requIsItIonIng of VehICles foregoing provisions of this section shall apply accordingly.

Billeting 154.

(1) Where persons are billeted in pursuance of a billeting Accommodation to order, the occupier on whom they are billeted shall furnish such 151.

At any time when this section is in operation by virtue of accommodation and meals as the ofcer or serviceman demanding the be provided, and Billeting orders.

payment therefor.

an order under section 168, an ofcer not below the rank of major or billets may require, not exceeding such accommodation and meals as corresponding rank commanding a unit of the armed forces may, if he may be prescribed.

considers it necessary for the purpose of securing accommodation for members of the armed forces or their vehicles, issue a billeting order (2) Where vehicles are billeted in pursuance of a billeting order, requiring the police ofcer in charge of police for a specied area to the occupier on whom they are billeted shall furnish standing room for provide billets at specied places in that area for a specied number of the vehicles.

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.

(3) Where persons or vehicles have been billeted in pursuance of a billeting order, they may continue to be billeted, so long as section Premises in which 152.

(1) Billets for persons may be required to be provided- 151 is in operation, for such period as is requisite, and the allotment billets may be of the billets among the persons or vehicles concerned may be varied required.

(a) in any hotel (whether licensed or not) or in any other from time to time.

premises occupied for the purposes of a business consisting of or including the provision of sleeping accommodation (4) The occupier on whom any person or vehicle is billeted shall for reward; or be entitled to receive the prescribed payment for the billeting: (b) in any other building to which the public habitually have Provided that no payment shall be required in respect of vehicles access, whether on payment or otherwise, or which is wholly billeted otherwise than in a building unless the land on which they are or partly provided or maintained out of public funds; or billeted- (c) in any dwelling, outhouse, warehouse, barn or stables, but (i) has its surface made up for the passage or parking of not in any other premises.

vehicles; and (2) Billets for vehicles may be required to be provided in any (ii) is not land where vehicles are normally allowed to stand building or on any land.

free of charge irrespective of the persons by whom they 153.

(1) Where a billeting order has been produced to the police are owned or driven.

Billeting.

ofcer in charge of police for the specied area, he shall, on the demand (5) Payment for billeting shall be made- 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, (a) at least once in every seven days, where the billeting billet on the occupiers of premises which fall within section 152, and continues for more than seven days; 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 (b) before the persons billeted nally leave, or the vehicle exceeding the number specied in the billeting order.

are nally removed from, the premises where they are billeted.

(2) The police ofcer in charge of police shall exercise his functions under this section in such manner as in his opinion will cause 155.

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

least hardship to persons on whom billeting takes place.

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

94 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 95 Appeals against 156.

(1) Any person who- Requisitioning of Vehicles billeting.

Requisitioning (a) is aggrieved by having an undue number of persons billeted 159.

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

upon him in pursuance of a billeting order; or order made under section 168, an ofcer not below the rank of major or corresponding rank commanding any part of the armed forces may, (b) claims that by reason of special circumstances he should if it is necessary in the interests of defence or public safety and the be exempted from having persons so billeted on him, necessity is such as to afford reasonable justication for the causing either generally or on a particular occasion, may apply to of any hardship that may result to any person having an interest in or a tribunal consisting of a person or persons appointed by right over the vehicles, issue a requisitioning order authorizing the the Minister.

requisitioning of specied vehicles, or of a specied number of vehicles of a specied description, from among the vehicles in a specied area (2) On an application under subsection (1) (a), the tribunal may for meeting the needs of any specied unit of the armed forces or any direct that such number of the persons billeted as may seem just shall part thereof.

be billeted on some other occupier, or may dismiss the application.

160.(1) A requisitioning order may be issued to the ofcer Requisitioning of (3) On an application under subsection (1) (b), the tribunal commanding any part of the armed forces, and that ofcer, or any ofcer vehicles.

may grant such exemption as may seem just, or may dismiss the or serviceman authorized by him in writing, may give directions for application.

the provision- (4) An application under subsection (1) shall not affect billeting (a) in so far as the requisitioning order authorizes the pending the determination of the application.

requisitioning of specied vehicles, of all or any of those 157.

(1) Where any damage is caused to any premises by the vehicles; Compensation for billeting of persons or vehicles in pursuance of a billeting order, the (b) in so far as the order authorizes the requisitioning of vehicles damage.

occupier may recover from the Government compensation of an amount of a specied description, of the number of vehicles of that equal to the depreciation of the premises caused by the damage.

description specied in the order or any lesser number of such vehicles.

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

(a) to furnish it immediately at the place where it is; or (3) The Resident Magistrates Court shall have jurisdiction to deal with any claim arising under subsection (1) or subsection (2), (b) to furnish it at a place within one hundred miles from the irrespective of the amount of the claim.

premises of that person, at a time specied by the ofcer or Application to 158.

(1) In relation to persons employed with the armed forces serviceman giving the direction: civilians employed and not entitled under the foregoing provisions of this sub-Part to be Provided that no direction shall be given under paragraph (b) as with armed forces, billeted, being persons of such descriptions as may be prescribed, respects a vehicle which is neither mechanically propelled nor a trailer and to aircraft, ships those provisions shall apply as they apply in relation to members of normally drawn by a mechanically-propelled vehicle.

and boats.

the armed forces.

(3) If the ofcer to whom the requisitioning order was issued, or (2) The foregoing provisions of this sub-Part apply to and in any ofcer or serviceman authorized by him in writing- 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.

(a) is satised that a person who has been directed to furnish a 96 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 97 vehicle under subsections (1) and (2) has refused or failed to furnish it in accordance with that direction; or (c) if, during the said period, a total loss of the vehicle occurs, a sum equal to the value of the vehicle immediately before (b) has reasonable grounds for believing that it is not practicable the occurrence of the damage which caused the loss, without undue delay to give such a direction to the person having possession of the vehicle, 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 he may take, or authorize any ofcer or serviceman to take, possession was requisitioned.

of the vehicle; and, where possession is taken of a vehicle in pursuance of this subsection, this sub-Part shall, with the necessary modications, (2) The person by whom a vehicle is furnished in pursuance of apply as if the vehicle had been furnished by the person having a requisitioning order for the purpose of its being purchased shall be possession of the vehicle in accordance with a direction to furnish it entitled to be paid the value of the vehicle at the time at which it is immediately at the place where it is, and, in particular, payment shall furnished.

be made therefor as if it had been so furnished.

(3) Where a vehicle is furnished in pursuance of a direction under (4) The police ofcer in charge of police for any area specied in section 160 (2) (b)- a requisitioning order shall, on being so requested by or on behalf of the ofcer to whom the requisitioning order was issued, give instructions (a) for the purposes of paragraphs (a) and (b) of subsection for securing that so far as practicable police ofcers will be available, (1) of this section (if that subsection applies), the period for if required, for accompanying ofcers or servicemen requisitioning which possession of the vehicle is retained shall be deemed vehicles in pursuance of the requisitioning order.

to begin at the time when the direction is given, and for the purposes of subsection (2) of this section (if that subsection Period for which 161.

Where a vehicle has been furnished in pursuance of a applies) the vehicle shall be deemed to have been furnished vehicles to be requisitioning order, it may be retained, so long as section 159 is in at that time; requisitioned.

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

(b) in addition to the payments provided for by subsection (1) Provision of vehicles or subsection (2) of this section, the person by whom the for purchase.

162.

A requisitioning order may require any person to furnish a vehicle is furnished shall be entitled to be paid the amount vehicle for the purpose of its being purchased by the Government.

of any expenditure reasonably incurred by him in complying Payment for vehicles 163.

(1) The person by whom a vehicle is furnished in pursuance with the direction.

requisitioned.

of a requisitioning order, otherwise than for the purpose of its being (4) Where a direction to furnish a vehicle is given under section 14 of 1971, Sch.

purchased, shall be entitled to be paid- 160 (2) (b), and after the giving of the direction any damage occurs to the (a) a sum for the use of the vehicle calculated, by reference to vehicle (whether or not resulting in its total loss), if the damage prevents the vehicle being furnished in accordance with the requisitioning order the period for which possession of the vehicle is retained, the foregoing provisions of this section shall apply as if the vehicle had at the rate of payment commonly recognized or generally been furnished and had been furnished otherwise than for the purpose prevailing in the area at the time at which the vehicle is of its being purchased (notwithstanding that it may have been required furnished or, if no such rate is readily ascertainable, at such rate as may be just; and to be furnished for the purpose of its being purchased), subject however to the following modications, that is to say- (b) a sum equal to the cost of making good any damage caused (a) paragraphs (a), (b) and (c) of subsection (1) of this section to the vehicle, not being damage resulting in its total loss shall have effect as if for the period therein mentioned there or damage attributable to fair wear and tear, which may were substituted the period beginning with the giving of the have occurred during the period for which possession of the direction and ending immediately after the occurrence of vehicle is retained and which has not been made good during the damage; that period by the Government; and 98 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 99 (b) paragraph (b) of subsection (3) of this section shall have other person or property, to be so using the vehicle as a servant of the Cap.

405.

effect as if in complying with there were replaced by Government, and section 4 of the Insurance (Motor Vehicles Third Party by reason of anything done for the purpose of complying Risks) Act shall not apply to the use of a vehicle for that purpose.

with.

167.

(1) Subject to this section, the foregoing provisions of this Application to (5) Where a person is required by a direction to furnish a sub-Part, except those provisions which relate only to mechanically- aircraft, ships, horses, vehicle- propelled vehicles and trailers normally drawn thereby, apply to and in etc., food, forage and stores.

respect of aircraft, ships, boats, horses, mules, donkeys, camels, food, (a) he shall notify the details of the requisitioning and of any forage, fuel and stores as they apply to and in respect of vehicles.

payment thereof to any person whom he knows to have an interest in the vehicle; and (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) any person having such an interest shall be entitled to recover (b), such a direction may be given as well in relation to the stores as from him such part (if any) of the payment received by him in relation to the vehicle, and the foregoing provisions of this sub-Part for the vehicle as may be just.

shall apply accordingly: (6) Where, during the period for which possession of a vehicle is Provided that section 163 (4) shall not apply, but, if after the retained, a total loss of the vehicle occurs, then- 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 (a) for the purposes of paragraphs (a) and (b) of subsection of the stores as may be just in all the circumstances.

(1), that period shall be deemed to have come to an end immediately after the occurrence of the loss; and (3) In this section, stores means any chattel (other than a vehicle, aircraft, ship, boat, horse, mule, donkey or camel, or food, forage or (b) no claim shall be made for the return of the vehicle (if it fuel) which is required for, or for use in connexion with- still exists), or for any payment in respect thereof other than such as is provided for by subsection (1).

(a) persons, vehicles, aircraft, ships or boats billeted or to be billeted in pursuance of a billeting order or (7) The Resident Magistrates Court shall have jurisdiction to deal otherwise temporarily accommodated or to be temporarily with any claim arising under this section irrespective of the amount of accommodated; or the claim.

(b) vehicles, aircraft, ships, boats, horses, mules, donkeys Avoidance of 164.

In deciding which, of alternative vehicles, is to be specied in or camels furnished or to be furnished in pursuance of a hardship in a requisitioning order or is to be the subject of a direction under section requisitioning order.

requisitioning vehicles.

160, the person issuing the direction given shall act in such manner as will in his opinion cause least hardship.

Supplemental 14 of 1971, Sch.

Issue of search 165.

If a magistrate is satised that a person has failed to afford 168.

Whenever it appears to the President that the public interest Bringing into warrant.

facilities for inspection which he has been required to afford by or under operation sections regulations made under section 227 (1) (t), he may issue a search warrant so requires, he may, by order in the Gazette, direct that either or both of 151 and 159.

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

authorizing a named police ofcer to enter any premises within which either generally or in respect of a specied area, and that section or those the facilities are required, accompanied by that person, at any time sections, as the case may be, shall thereupon come into operation and between six oclock in the morning and nine oclock in the evening, and to inspect anything which may be found therein.

remain in operation for the specied period.

166.

The person using a vehicle for the purpose of its being part XIIICommIssIonIng of offICers and Damage by vehicles furnished in pursuance of a direction under section 160 (2) (b) shall be enlIstment of serVICemen being delivered for requisitioning.

deemed, as respects any claim in respect of injury or damage to any 169.

(1) The Defence Council may, in the name of the President, Grant of 100 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 101 commissions.

grant a commission in the armed forces to a citizen of Kenya who has 173.

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

been recommended for a commission in that service by a commissions be given a notice in the prescribed form setting out the questions to board established by regulations made under this Act.

be answered on attestation and stating the general conditions of the enlistment, and a recruiting ofcer shall not recruit any person unless that (2) Every person who is granted a commission shall, on being person satises him that he has been given such a notice, understands granted the commission, take an oath of allegiance in the form in the it and wishes to enlist.

Second Schedule.

170.

(1) A commission may be either- (2) A recruiting ofcer shall not recruit a person under the apparent Term of commission.

age of eighteen years unless written consent to the enlistment has been 19 of 1982, Sch.

(a) a regular commission; or 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 (b) a short service commission, that is to say a commission for the person resides.

a term of years not exceeding ve in the rst instance.

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

(2) An ofcer holding a regular commission who retires from the armed forces with a pension or gratuity shall thereupon be transferred (4) A person on attestation shall take an oath of allegiance in the to the reserve, and shall serve in it until the age of- form in the Second Schedule.

(a) sixty-ve years in the case of an ofcer retiring with the rank 174.

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

of major-general or corresponding rank or above; or the age of eighteen years may enlist shall be one of the prescribed (b) fty-ve years in the case of an ofcer retiring with the rank periods of colour service (not exceeding twelve years) beginning on of colonel or corresponding rank or above; or the date of his attestation.

(c) the age of fty years in the case of a person retiring with the (2) The period for which a person who has not apparently attained rank of lieutenant-colonel or corresponding rank or below.

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) 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 (3) In reckoning the service of a serviceman, there shall be for a period of three years.

excluded therefrom- 171.

(1) The Commander may terminate the commission of (a) all periods during which he has been absent from his duty Termination of by reason of- commission.

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

(i) imprisonment; or (2) The Defence Council may terminate the commission of any (ii) desertion; or ofcer of the rank of major or corresponding rank or below.

(iii) absence without leave exceeding seven days; and (3) The President may terminate the commission of any ofcer above the rank of major or corresponding rank or above.

(b) any period ordered by a court martial to be forfeited.

172.

Any person authorized in that behalf by the Defence (4) A serviceman who is of good character, may, within two years Recruiting ofcers.

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

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: 102 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 103 Provided that, except as provided by subsection (5), the further (e) on reduction of establishment; or period of colour service, together with the previous period of colour service, shall not exceed a total continuous period of twenty-one years (f) at his own request on compassionate grounds; or colour service from the date of his original attestation or the date upon which he apparently attained the age of eighteen years, whichever is (g) if for any reason his services are no longer required; or the later.

(h) if he is granted a commission; or (5) A serviceman who has completed a period of twenty-one years colour service may, with the approval of the competent service (i) if he is sentenced by court martial to be dismissed from the authority, continue to serve from year to year in all respects as if his armed forces.

period of colour service were still unexpired: 177.

A serviceman may claim to be discharged at anytime within Right to purchase Provided that he may at any time give to his commanding ofcer three months after the date of his attestation on payment of the sum of discharge.

three months notice that he wishes to be discharged, and on the two hundred shillings: expiration of that notice he may claim to be discharged.

Provided that- (6) A serviceman who completes his period of colour service (and any period by which his service is prolonged under subsection (5) of this (i) subsections (2) and (5) of section 180 shall not apply to section or under section 175) or is otherwise discharged (other than under a serviceman discharged under this section; 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 (ii) no serviceman may claim to be discharged during a state longer period which may be provided for in his terms of enlistment or of war, insurrection, hostilities or public emergency or re-engagement), but not in any case after he has completed twenty-one at a time when he is on active service.

years colour service or has reached the age of forty-ve years.

178.

A warrant ofcer who is reduced to the rank of private or 175.

Any ofcer who is due to retire or who completes the corresponding rank may thereupon claim to be discharged, except during Right to discharge on Prolongation of reduction to ranks.

service.

term of his commission, and any serviceman whose period of colour a state of war, insurrection, hostilities or public emergency or at a time 12 of 1978, Sch.

service expires, during a state of war, insurrection, hostilities or public when he is on active service.

emergency or at a time when he is on active service may be retained in Postponement of the armed forces and his service prolonged for such further period as 179.

(1) Notwithstanding anything in this Part, a serviceman is discharge or transfer the Defence Council may determine.

not entitled to be discharged or transferred to the reserve at a time when pending proceedings he has become liable, as a person subject to this Act, to be proceeded Discharge.

176.

A serviceman may be discharged by the competent service against for an offence under Part V.

for offences, etc.

authority at any time during his period of colour service - (2) Notwithstanding anything in this Part, a serviceman who is (a) if, within two years after the date of his attestation, his serving a sentence of imprisonment in respect of an offence under Part commanding ofcer considers that he is unlikely to be an V is not entitled to be discharged or transferred to the reserve during efcient member of the armed forces; or the currency of the sentence.

(b) for activities or behaviour likely to be prejudicial to the 180.

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

preservation of public security; or or liable to be discharged shall be discharged with all convenient speed, (c) if he is convicted of a civil offence; or but until discharged he shall remain subject to this Act.

(2) When a serviceman who is entitled or liable to be discharged (d) if he is pronounced by a medical ofcer to be mentally or is serving outside Kenya, he shall be returned to Kenya free of cost physically unt for further service; or with all convenient speed and shall be discharged on his arrival there 104 CAP.

199 Armed Forces [Rev.

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2009] Armed Forces CAP.

199 105 or, if he consents to his discharge being delayed, within six months discharge of a person who has not claimed his discharge.

after his arrival.

part XIVthe reserVes (3) A serviceman shall not be discharged unless his discharge has Transfer to reserve.

been authorized by order of the competent service authority.

182.

(1) Every ofcer and every serviceman who is liable to be transferred to the regular reserve shall until transferred remain subject (4) Every serviceman shall be given on his discharge a certicate to this Act.

of discharge containing the prescribed particulars.

(2) When an ofcer or a serviceman who falls to be transferred (5) A serviceman who is discharged in Kenya shall be entitled to the regular reserve is serving outside Kenya, he shall be returned to to be conveyed free of cost from the place where he is discharged to Kenya free of cost with all convenient speed and shall be transferred to the place stated in his attestation paper to be the place where he was the regular reserve on his arrival there or, if he consents to his transfer attested, or to any place in Kenya at which he intends to reside and to being delayed, within six months after his arrival.

which he can be conveyed at no greater cost.

(3) A serviceman who is transferred to the regular reserve in Kenya Validity of attestation 181.

(1) Where a person has made the prescribed declaration upon shall be entitled to be conveyed free of cost from the place where he and enlistment.

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

(a) the validity of his enlistment shall not be called in question reside and to which he can be conveyed at no greater cost.

on the grounds of any error or omission in his attestation Volunteer reserve.

paper; 183.

(1) The volunteer reserve, if the Defence Council decides (b) if, within a period of three months from the date on which in pursuance of section 4 that there shall be one, shall consist of such ofcers and servicemen as the Defence Council determines.

he made the declaration, he claims that his enlistment is invalid by reason of non-compliance with the requirements (2) Commissions in the volunteer reserve shall be granted and of this Act or any other matter whatsoever (not being an may be terminated in the same manner as is provided in relation to the error or omission in his attestation paper), the claim shall regular force by sections 169 and 171.

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 (3) Servicemen may be enlisted into the volunteer reserve, and when enlisted shall serve in the volunteer reserve, in the same manner no such claim is made within that period, or if the Defence as is provided in relation to the regular forces by sections 172, 173, 175, Council is of opinion that the claim is unfounded, the person 176, 177, 178,179, 180 and 181, and those sections shall apply mutatis concerned shall be deemed to have been validly enlisted mutandis in relation to enlistment and servicemen enlisted into the notwithstanding any such non-compliance or other matter volunteer reserve as they apply to enlistment and servicemen enlisted and he shall be a serviceman until his discharge.

into the regular forces.

(2) Where a person has received pay as a serviceman without having 184.

(1) Every reservist is liable to be called out for training for Calling out reservists previously made the prescribed declaration upon his attestation- for annual training.

a period not exceeding, or for periods not exceeding in the aggregate, (a) he shall be a serviceman until discharged; twenty-eight days in any one year.

(b) he may claim to be discharged at any time within three (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 months after the rst day in respect of which he has received forces.

pay.

(3) Nothing in this section shall prejudice the determination of 185.

(1) The President may, by notice in the Gazette, at any time Calling out reservists temporarily.

any question as to the term for which a person enlisted or prevent the when he considers it necessary, call out reservists (whether by class or by name) temporarily- 106 CAP.

199 Armed Forces [Rev.

2009 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 (a) to strengthen the regular force in time of war; or 31, or of absence without leave within the meaning of (b) to support the civil power in the maintenance of order in section 32.

the event of disturbances, for a period not exceeding twenty- (2) Section 70 applies to reservists who commit an offence under eight days.

this section as it applies to persons otherwise subject to this Act.

(2) The President in such notice may give or authorize the Minister 188.

Where a reservist fails to report when called out and his Record of illegal to give such directions as may seem necessary or proper for facilitating absence continues for not less than twenty-one days, an entry of such absence.

the calling out of the reservists.

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.

(3) Every such notice and all such directions shall be obeyed, and Release from reserve every reservist called out by the notice shall attend at the place and time 189.

A reservist who has completed his period of service in the on completion of appointed by the notice or the directions, and after that time shall be reserve shall be released from the reserve, unless- service.

deemed to be called out on temporary service.

(a) he is on active service; or 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), (b) the reserve has been called out on permanent service; or service.

Cap.

57.

the President may, by proclamation, call out reservists (whether by class or by name) on permanent service, either generally or (as the case may (c) at the expiration of the period he stands charged as a person be) in that part of Kenya.

subject to this Act with the commission of, or is a serviceman (2) The President in such proclamation may give or authorize the undergoing punishment for, an offence under this Act; Minister to give such directions as may seem necessary or proper for facilitating the calling out of the reservists.

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 (3) Every reservist who is an ofcer called out on permanent charged, or until his punishment is completed, as the case may be.

service is liable to serve until his services are no longer required, but Release from reserve in any case not beyond the age limits specied in section 170 (2), 190.

A reservist may be released from the reserve by the competent during service.

irrespective of whether he held a regular commission or a short service service authority at any time if- commission, together with such further period as the Minister may determine.

(a) he is pronounced by a medical ofcer to be mentally or (4) Every reservist who is a serviceman called out on permanent physically unt for further service; or service is liable to serve as a serviceman until his services are no longer (b) his services for any reason are no longer required.

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 part XVthe armed forCes Constabulary may determine.

190A.

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

Punishment for non- 187.

(1) Any reservist who, without leave lawfully granted or 12 of 1978, s.8.

attendance.

other reasonable excuse, fails to report when called out under this Part (a) any establishment of the armed forces; and shall- (b) any building or other premises belonging to, or in the (a) if called out under section 184 or section 185, be guilty of occupation of, the Government which the Minister, after absence without leave within the meaning of section 32; consultation with the Minister for the time being responsible for matters relating to internal security, may, by notice in 108 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 109 the Gazette, declare to be a public establishment for the described in paragraph (ii) of the proviso to section 195, a member of purposes of this Part.

the constabulary may demand his name and address, and if he refuses Armed Forces or fails to give his name and address to the satisfaction of such member, Constabulary.

191.

There is hereby established a force, to be known as the or if such member has reasonable grounds for believing that unless Armed Forces Constabulary, which shall be part of the armed forces, arrested the person will escape or cause an unreasonable amount of and which shall consist of a Commandant and such other ranks as the delay, trouble or expense in being brought before a court, such member Minister determines.

may without warrant arrest him forthwith.

Commandant.

192.

The Commandant shall, subject to the directions of the (2) A person making an arrest under subsection (1) shall- Minister, be responsible for the general control, discipline and administration of the constabulary.

(a) without unnecessary delay make over the arrested person Declaration by to a police ofcer, who shall take him to the nearest police members.

193.

Every member of the constabulary shall on joining the station without unnecessary delay; or constabulary make before an ofcer of the armed forces or before the Commandant an oath of allegiance in the form in the Second (b) in the absence of a police ofcer, take the arrested person Schedule.

to the nearest police station.

Functions of 194.

The functions of the constabulary shall be to maintain the (3) Where any person has been arrested under subsection (1) of constabulary.

12 of 1978, Sch.

security, protection (including protection against re and other damage) this section, the ofcer in charge of the police station to which he has Cap.

75.

and orderly regulation of all public establishments and of public property been brought shall deal with the case in accordance with section 36 of in the charge of the armed forces.

the Criminal Procedure Code.

Powers and 195.

In the exercise of their functions under this Act, all members 197.

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

privileges of of the constabulary have the like powers and privileges as are by law person who by force prevents or attempts to prevent the lawful arrest 12 of 1978, Sch.

members.

accorded to police ofcers, including the power to carry arms: of himself or of any other person in any public establishment: 12 of 1978, Sch.

Provided that such powers and privileges do not apply in relation Provided that- to a member of the constabulary when he is beyond the limits of a public establishment, except when that member- (i) resort shall not be had to the use of arms under this sec- (i) is performing his functions in respect of public property tion unless the member has reasonable ground to believe under the control of the armed forces; or that he or any other person is in danger of grievous bodily harm, and that he cannot otherwise effect such (ii) is in control or fresh pursuit of a person who is reasonably arrest; and suspected of having committed an offence- (ii) the use of arms under this section shall be, as far as pos- (a) in or on such establishment; or sible, to disable and not to kill.

(b) in relation to public property under the control of the armed part XVICIVIl offenCes ConCernIng the forces; or armed forCes and the Constabulary 198.

Any person who- Obstructing (c) in relation to a member of the constabulary, or to an ofcer constabulary, etc.

or serviceman, or to a person employed in the service of a (a) assaults, resists or wilfully obstructs a member of the unit of the armed forces.

constabulary in the performance of his duties under this Act, Powers of arrest.

196.

(1) Where any person is found committing, or is reasonably or any person acting in the aid of such a member; or suspected of committing or having committed, an offence of the kind (b) induces or does any act calculated to induce a member of CAP11 0.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 111 the constabulary to neglect or to act contrary to his duty as such member; or (b) supplies to or for him any drug or preparation calculated (c) induces or does any act calculated to induce a member of or likely to render him, or lead to the belief that he is, the constabulary to commit any breach of discipline or any permanently or temporarily unt for service, act whereby any lawful order given to a member of the constabulary or any written law with which it is the duty with a view to enabling him to avoid service in the armed forces, of a member of the constabulary to comply may be evaded whether permanently or temporarily, shall be guilty of an offence and or infringed, liable, on conviction by a civil court, to imprisonment for a term not shall be guilty of an offence and liable to imprisonment for a term not exceeding one year.

exceeding three years, and may be arrested without a warrant by any 203.

(1) Any person who acquires any service stores, or solicits Unlawful purchase, etc., of military member of the constabulary or any police ofcer.

or procures any person to dispose of any service stores, or acts for stores.

any person in the disposing of any service stores, shall be guilty of an Procuring and 199.

Any person who- offence and liable, on conviction by a civil court, to imprisonment for assisting desertion.

(a) procures or persuades a person to desert or to absent himself a term not exceeding two years, unless he proves either- without leave from the armed forces or the constabulary; (a) that he did not know, and could not reasonably be expected to or know, that the chattels in question were service stores; or (b) knowing that a person is about to desert or absent himself (b) that the chattels in question had (by the transaction with without leave from the armed forces or the constabulary, which he is charged or by some earlier transaction) been assists him in so doing; or disposed of by order or with the consent of the Government or of some other person or authority who had, or whom he (c) knowing a person to be a deserter or absentee without leave had reasonable cause to believe to have, power to give the from the armed forces or from the constabulary, conceals order or consent; or him or assists him in concealing himself or assists in his rescue from custody, (c) that the chattels in question had become the property of an ofcer who had retired or ceased to be an ofcer, or of shall be guilty of an offence and liable, on conviction by a civil court, a serviceman who had been discharged, or of the personal to imprisonment for a term not exceeding one year.

representatives of an ofcer or serviceman who had died.

Pretending to be a 200.

Any person who falsely represents himself to any service (2) A police ofcer may arrest without warrant any person who deserter.

authority or civil authority to be a deserter or absentee without leave is reasonably suspected of having committed an offence under this from the armed forces or from the constabulary shall be guilty of an section, and may seize any property which is reasonably suspected of offence and liable, on conviction by a civil court, to imprisonment for having been the subject of the offence.

a term not exceeding three months.

(3) Any person having authority to issue a warrant for the arrest Obstructing person in 201.

Any person who wilfully obstructs or otherwise interferes of a person charged with a crime may, if satised by evidence on oath execution of duty.

with an ofcer or serviceman acting in the execution of his duty shall that a person within his jurisdiction has, or is reasonably suspected of be guilty of an offence and liable, on conviction by a civil court, to having, in his possession any property which has been the subject of an imprisonment for a term not exceeding three months.

offence under this section, issue a warrant to search for such property as in the case of stolen goods; and any property reasonably suspected Aiding malingering.

202.

Any person who- 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 (a) produces in an ofcer or serviceman any sickness or warrant, and that ofcer shall bring the person in whose possession or disability; or keeping the property is found before a court.

CAP11 2.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 113 (b) fails to comply with any regulations made under section (4) In this section- 227 (1) (t); or acquire means buy, take in exchange, take in pawn or otherwise (c) obstructs any ofcer or other person in the exercise of his receive (whether apart from this section the receiving is lawful or functions under Part XII in relation to the inspection or not); requisitioning of vehicles or specied things, dispose of means sell, offer or expose for sale, give in exchange, shall be guilty of an offence and liable, on conviction by a civil court, pledge or otherwise hand over (whether apart from this section the to imprisonment for a term not exceeding three months.

handing over is lawful or not); (2) In subsection (1), specied thing means one of the things, service stores means any chattels or goods of any description animals and commodities specied in section 167 (1).

belonging to the Government, which have been issued for use for the 206.

(1) Where any ofcial document is issued in connexion Illegal dealings in purpose of the armed forces, or are held in store for the purpose of being documents relating with any pay, pension, allowance, gratuity or other money payable to so issued when required, and any chattels or goods which had belonged, any person in respect of his or any other persons service in the armed to pay, pensions, and had been issued or held, as aforesaid at some past time.

mobilization, etc.

forces, any person who receives, detains or has in his possession that document- (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 (a) as a pledge or a security for a debt; or whether he has it for his own use or benet or for the use or benet of another.

(b) with a view to obtaining payment, from the person entitled Refusal to receive 204.

(1) Any person who- to the pay, pension, allowance, gratuity or other money, of a debt due either to himself or to any other person, persons billeted, etc.

(a) refuses to receive any person billeted upon him in pursuance shall be guilty of an offence.

of a billeting order, or without reasonable excuse fails to furnish him with the accommodation properly required for (2) Any person who has in his possession without lawful authority him; or or reasonable excuse (the proof whereof shall lie on him) any such (b) gives or agrees to give to any person billeted upon him document as aforesaid, or any ofcial document issued in connexion in pursuance of a billeting order any money or reward in with the mobilization or demobilization of the armed forces or any part place of receiving any person or vehicle or of furnishing or member thereof, shall be guilty of an offence.

accommodation properly required for him; or (3) Any person who is guilty of an offence under this section shall (c) obstructs the billeting in his building or on any land or water be liable, on conviction by a civil court, to imprisonment for a term not exceeding six months.

under his control of any vehicle, aircraft, ship or boat, (4) For the purposes of this section, a document shall be deemed to shall be guilty of an offence and liable, on conviction by a civil court, be in the possession of a person if he has it under his control and whether to imprisonment for a term not exceeding three months.

he has it for his own use or benet or for the use or benet of another.

Enforcement of 205.

(1) Any person who- 207.

(1) Any person who- Unauthorized use requisitioning.

(a) fails to furnish any vehicle or specied thing which he is of and dealing in (a) without authority, uses or wears any service decoration, or decorations, etc.

directed to furnish in pursuance of a requisitioning order, or any badge, insignia of rank, wound stripe or emblem supplied fails to furnish any such vehicle or specied thing at the time or authorized by the President or the Defence Council; or and place at which he is directed to furnish it; or CAP11 4.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 115 (b) uses or wears any decoration, badge, insignia of rank, wound (b) is wholly or mainly maintained or employed by such a stripe or emblem so nearly resembling any service decoration member; or or any badge, insignia of rank, wound stripe or emblem supplied or authorized as aforesaid, as to be calculated to (c) is in the custody, charge or care, or is part of the family, of deceive; or such a member; (c) falsely represents himself to be a person who is or has designated country means a country designated under section been entitled to use or wear any service decoration or any 209; badge, insignia of rank, wound stripe or emblem supplied or authorized as aforesaid, forces, in relation to a country, means the naval, military or air shall be guilty of an offence: forces of that country; member, in relation to a visiting force, includes a member of Provided that this subsection shall not prohibit the wearing of the civilian component of that visiting force, and a dependant; brooches or ornaments representing service badges.

sentence includes any punishment awarded or imposed by a (2) Any person who purchases or takes in pawn any service service court; 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 service court, in relation to a country, means a court established any person in the sale or pledging thereof, shall be guilty of an offence, under the service law of that country, or any authority empowered unless he proves that at the time of the alleged offence the person to by that service law to investigate or try charges, or any authority whom the decoration was awarded was dead or had ceased to be a empowered by that service law to review the proceedings of such a member of the armed forces.

court or authority; (3) Any person who is guilty of an offence under this section shall service law, in relation to a country, means the laws governing be liable, on conviction by a civil court, to imprisonment for a term not the forces of that country; exceeding three months.

visiting force means any body of the forces of a designated part XVIIVIsItIng forCes country which for the time being is lawfully present in Kenya in Interpretation of Part.

time of peace under a treaty, agreement or arrangement to which the 208.

In this Part- Government is a party.

appropriate authority, in relation to a country, means such 209.

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

authority as is appointed by the government of that country for the that this Part should have effect in relation to any particular country, purposes of this Part; he may, by order, designate that country as a country to which this Part civilian component means the civilian personnel accompanying applies.

a visiting force, who are employed in the service of the visiting force (2) An order under subsection (1) may provide that it shall have or are employed by an authorized service organization accompanying effect subject to limitations or conditions, or that this Part shall apply a visiting force, and who are not stateless persons or citizens of Kenya with modications or adaptations.

or persons ordinarily resident in Kenya; 210.

(1) Subject to sections 71 and 72 of the Constitution, the dependant means a person who is not ordinarily resident in service courts and service authorities of a designated country may, within Powers of service Kenya and who- Kenya or on board any ship or aircraft belonging to the Government, courts of visiting exercise over members of a visiting force which belongs to that country forces.

(a) is the wife or husband of a member of a visiting force; or all such powers as are exercisable by them according to the law of the country.

CAP11 6.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 117 arrest may be issued and executed, and he may be remanded in custody (2) Where a sentence has been passed, whether within or outside or on bail, notwithstanding that a certicate has not been given under Kenya, by a service court of a designated country upon a member this subsection.

of a visiting force then, for the purposes of proceedings in a court of Kenya- (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 (a) the service court shall be deemed to have been properly conferred by section 210 (1)- constituted; and (a) he shall not be tried for the same offence by a court of (b) the sentence shall be deemed to have been within the Kenya; and jurisdiction of the service court and to have been in accordance with the law of the designated country; and (b) if he is subsequently convicted by a court of Kenya and it appears to that court that the conviction is wholly or (c) the sentence, if executed according to the tenor of the partly in respect of acts or omissions in respect of which he sentence, shall be deemed to be lawfully executed.

was convicted by the service court, the court of Kenya in sentencing him shall have regard to any sentence passed by (3) Any person who is detained in custody in pursuance of the service court.

a sentence as respects which subsection (2) has effect is in lawful Proof of certain facts.

custody.

212.

(1) For the purposes of this Part, a certicate issued by or on behalf of the appropriate authority of a designated country- (4) Notwithstanding the foregoing provisions of this section, a sentence of death passed by a service court of a designated country shall (a) that a body of the forces of that country is or was at a not be carried out in Kenya unless under the law of Kenya a sentence particular time present in Kenya shall, in proceedings of death could have been passed in a similar case.

in a court of Kenya, be conclusive evidence of the fact 211.

(1) A member of a visiting force shall not be prosecuted for certied; Restrictions on a civil offence unless- (b) that a named person at a particular time either was or was prosecutions for civil offences.

not a member (whether as a member or as a member of the (a) the Attorney-General certies that- civilian component or as a dependant) of a visiting force of that country shall, in proceedings in a court of Kenya, (i) the offence is one in relation to which the courts of be sufcient evidence of the fact, unless the contrary is Kenya have the exclusive or the primary right to exercise proved; jurisdiction under a treaty, agreement or arrangement to which the Government is a party; and (c) that a named person- (ii) the Minister has not waived that right in respect of that (i) on a particular date was sentenced by a service court of offence; or that country to a particular punishment; or (b) the Attorney-General certies that, although the offence is (ii) is, or was at a particular time, detained in custody in one in respect of which a service court of the country to which pursuance of a sentence passed upon him by a service the visiting force belongs has the primary right to exercise court of that country; or jurisdiction under a treaty, agreement or arrangement to which the Government is a party, that right has been waived (iii) at a particular time and place was tried by a service court in respect of the offence by the service authorities of the of that country for a particular offence, visiting force or by the government of that country: shall, in proceedings in a court of Kenya, be conclusive evidence of Provided that a person may be arrested, and a warrant for his the fact certied.

CAP11 8.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 119 precedence and command according to any order which may be made (2) Where- by the President, and where no such order is in force then according to their seniority reckoned by the date of their respective appointments (a) in a certicate issued for the purposes of this section to their current rank.

reference is made to a person by name; and 214.

Duties or tolls for embarking from or disembarking on any (b) in proceedings in a court of Kenya reference is made to a pier, wharf, quay or landing place, or for passing over any road, ferry Exemptions from person by that name (whether as a party to the proceedings or bridge, shall not be payable in respect of- tolls, etc.

or otherwise), (a) members of the armed forces or of any co-operating forces the reference in the certicate and the reference in the proceedings shall or of the constabulary, when on duty; be presumed to be references to the same person, unless the contrary is proved.

(b) vehicles of the armed forces or of any co-operating forces; (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 (c) horses or other animals of the armed forces.

authority, shall be presumed to be a certicate issued by or on behalf of that authority, unless the contrary is proved.

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 (4) Where a document purporting to be a certicate issued for the levying of execution on any property in the possession of the person public property.

purpose of this section- against whom it is given or made which is public property used by him (a) is one which under this section may be issued by or on behalf for service purposes.

of the appropriate authority of a designated country; and 216.

(1) Save as expressly provided by this Act, no pay, service No assignment of or charge on service award, grant, pension or allowance payable to any person in respect of (b) purports to be signed by or on behalf of an authority of his or any other persons service in the armed forces shall be capable of pay, etc.

that country, 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.

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 (2) Save as expressly provided by this Act, no order shall be section, unless the contrary is proved.

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 (5) Where in proceedings in a court of Kenya it is admitted or and to direct payment thereof to another person.

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 (3) This section does not prevent- 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.

(a) a court from ordering that a sum of money due from a member of the armed forces be recovered from money which part XVIIImIsCellaneous he is precluded by this section from assigning; or Precedence and 213.

(1) Ofcers, warrant ofcers, non-commissioned ofcers (b) a sum being paid, out of money which a person is precluded command of and servicemen below the rank of non-commissioned ofcer shall stand by this section from assigning, to that persons trustee in members of armed in relation to each other in the order of precedence in which they are bankruptcy for distribution among creditors under the law forces.

named in this subsection.

relating to bankruptcy.

(2) Ofcers, warrant ofcers and non-commissioned ofcers 217.

(1) A person subject to this Act may make a statutory Certain ofcers of the same rank shall, as between themselves, stand in order of declaration under the Oaths and Statutory Declarations Act outside may take statutory 120 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 121 declarations.

Kenya before any ofcer of the rank of major or corresponding rank or 222.

In every case of desertion, the movable property of the Property of deserter.

Cap.

15.

above (in this section referred to as an authorized ofcer).

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 (2) A statutory declaration purporting to have been made before of in the prescribed manner.

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 223.

(1) The Commander, or any ofcer authorized by regulations Board of inquiry.

of the full name and rank of that ofcer, shall be admitted in evidence made under this Act, may convene a board of inquiry to investigate and without proof that the signature is the signature of that ofcer.

report on the facts relating to- 4 of 1973, Sch.

Residence and next 218.

(1) Every ofcer on being commissioned and every (a) the absence of any person subject to this Act; or 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 (b) the capture of any such person by the enemy; or kin, and those particulars shall be recorded at the headquarters of his unit.

(c) the death of any person where an inquiry into the death is not required to be held by a civil authority; or (2) The record shall be veried periodically, and it shall be the duty of the ofcer or serviceman to report any alteration which may (d) any other matter of a prescribed class, occur in the recorded particulars.

Execution of wills.

and a board of inquiry shall, if directed so to do, express their opinion 219.

A will made by a member of the armed forces who has at law on any question arising out of any matters referred to the board.

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 (2) The Defence Council, the Commander or the commanding name as witness in the members presence, or if it is executed with ofcer may convene a board of inquiry to investigate and report on the formalities prescribed by any other written law for the execution any other matter.

of a will.

(3) A board of inquiry shall consist of the prescribed number of Administration of 220.

(1) Where a member of the armed forces dies leaving a valid persons, being persons subject to this Act, and the chairman of the board estates.

will, the paymaster or any ofcer having in his charge or control any shall be an ofcer not below the rank of lieutenant or corresponding pay, accumulation of pay, gratuity or other money or any other movable rank.

property belonging to the member shall pay or deliver it to the executor of the member.

(4) Evidence given before a board of inquiry shall not be admissible against any person in proceedings before a court martial, appropriate (2) Where a member of the armed forces dies without leaving a superior authority or commanding ofcer other than proceedings for valid will, the paymaster or any ofcer having in his charge or control an offence under section 53, or for an offence under section 69 where any pay, accumulation of pay, gratuity or other money or any movable the corresponding civil offence is perjury.

property belonging to the member shall pay or deliver it to the Public Report of inquiry Trustee together with a copy of the record specied in section 218 of this 224.

(1) Where a board of inquiry inquiring into the absence of into absence to be Cap.

168.

Act, and the Public Trustee shall administer and distribute the money an ofcer or serviceman reports that he has been absent without leave recorded.

or property in accordance with the Public Trustee Act, or may grant a or other sufcient cause for a period specied in the report, not being certicate as provided in section 4 of that Act.

less than twenty-one days, a record of the report shall be entered in the 221.

Uniforms and decorations shall not be treated as part of the service books.

Uniforms and estate of a deceased member of the armed forces in relation to claims or (2) A record entered in pursuance of subsection (1) shall, unless decorations not part creditors or for any of the purposes of administration under this Act or the absentee subsequently surrenders or is arrested, or the report of the of estate.

otherwise, and they shall be delivered to the Commander and thereafter board of inquiry is annulled by the Defence Council or a subsequent disposed of in the prescribed manner.

board of inquiry, have the like effect as a conviction by court martial for desertion.

122 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 123 Complaints by (d) the persons, being members of the armed forces, in whom 225.

(1) If an ofcer thinks himself wronged in any matter by command over any service of the armed forces or any part ofcers.

a superior ofcer or authority and on application to his commanding or member thereof is vested, and as to the circumstances in ofcer does not obtain the redress to which he thinks he is entitled, he which such command is vested; may make a complaint in writing to the Defence Council through his commanding ofcer and the Commander.

(e) the attachment and secondment of ofcers and servicemen under Part IV; (2) On receiving such a complaint, the Defence Council shall investigate the complaint and grant any redress which appears to it to (f) with the consent of the Treasury, the pay, allowances, pensions be necessary.

and gratuities of members of the armed forces, including the Complaints by 226.

(1) If a serviceman thinks himself wronged in any matter by manner of reckoning service before the commencement of serviceman.

this Act for pensions and gratuities; an ofcer (other than his commanding ofcer) or by a serviceman, he 12 of 1978, Sch., may make a complaint to his commanding ofcer.

(g) the seniority in rank, and the pension and other 17 of 1979, Sch.

(2) If a serviceman thinks himself wronged in any matter by his benets, of a person who resigns his commission or is discharged from the armed forces to facilitate his commanding ofcer, either by reason of redress not being given to his being granted a commission or his enlisting in another service satisfaction on a complaint under subsection (1) or for any other reason, of the armed forces; he may make a complaint in writing to the Commander through his commanding ofcer.

(h) the periods and terms of service in the volunteer reserve, and other matters concerning service in the volunteer reserve; (3) If a serviceman is dissatised with the decision of the Commander under subsection (2), he may make a complaint in writing (i) the distribution, organization and duties of the armed to the Chief of General Staff through his commanding ofcer and the forces; Commander.

(j) the government, discipline, pay and conditions of service (4) On receiving a complaint under this section, the commanding of cadet forces; 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 (k) the distribution, posting, transfer, attachment and inspection necessary.

of personnel; Regulations.

227.

(1) Subject to the powers of the President under this Act (l) the description, supply, use and disposal of arms, 12 of 1978, Sch., the Defence Council may make regulations for better carrying out accoutrements, clothing and other stores, including 13 of 1978, Sch., the provisions and purposes of this Act and generally for the good investigation into losses thereof; 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 (m) the proper administration and control of establishments provision with respect to- of the armed forces, including prohibiting, regulating or (a) the commissioning and appointment of ofcers, and their controlling entry into, presence within, meetings in and trafc within such establishments; terms of service, retirement, resignation and precedence, and similar matters; (n) the discipline, good order and guidance of the armed (b) the enlistment of recruits, including the administration of forces; oaths and afrmations; (o) forfeiture of pay and deductions from pay (but not so as (c) the promotion of ofcers and servicemen; 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 124 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 125 determination of questions concerning forfeiture of pay and deductions from pay; (z) the making of inquiries regarding members of the armed forces missing in action and the giving of awards and (p) the delegation of any or all of the functions of a commanding decorations, the promotion of, and the disposal of pay and ofcer under this Act, in specied cases and to a specied allowances of, such persons.

extent, to ofcers of a specied class; (2) Subject to this Act, any regulations made under subsection (1) (q) the execution of sentences of death under this Act, including may empower the Chief of General Staff, or the Commander in respect the manner and place where such executions are to be carried of his service, or the Commandant of the constabulary in respect of the out and the custody, treatment and removal of persons under constabulary, to make (subject to restrictions or exceptions) general, sentence of death; special, routine and standing orders with respect to all or any of the (r) the execution of sentences of imprisonment under this Act, following matters- including the prisons in which they are to be served, and the (a) discipline, control, good order and guidance; classication, treatment, employment, discipline, control, removal and temporary release on compassionate grounds of (b) organization, administration and duties; persons serving such sentences, and the appointment, powers and duties of inspectors, visitors, governors and members of (c) promotion, pay and allowances; the staff of service prisons, and the removal of prisoners; (d) the distribution, posting, transfer, attachment and inspection (s) active service punishment; of personnel; (t) billeting and requisitioning, including requiring persons to (e) the description, supply, use and disposal of arms, furnish particulars of the motor vehicles, and of the trailers accoutrements, clothing and other stores, normally drawn by motor vehicles, and of the ships, boats, horses, mules, donkeys, camels, food, forage, fuel and stores but such orders shall not be inconsistent with this Act and shall not be in their possession and to afford proper facilities for their published in the Gazette.

inspection; 228.

(1) The Minister, on the advice of the Defence Council, Rules of procedure.

4 of 1973, Sch.

(u) the government, discipline and pay of the reserve, including may make rules, called rules of procedure, with respect to the matters calling out reservists and requiring reservists to report specied in subsections (2), (3) and (4).

themselves from time to time and to obtain the permission (2) Rules of procedure may make provision with respect to the of the competent service authority before leaving Kenya; investigation and trial of, and awarding of punishment for, offences (v) the government, discipline, pay and conditions of service triable by court martial, commanding ofcers and appropriate superior of the constabulary; authorities, and with respect to the conrmation and revision of ndings and sentences of courts martial, and, without prejudice to the generality (w) the convening, constitution and procedure of boards of of the foregoing, rules of procedure may make provision with respect to- inquiry, the rules of evidence to be observed and the taking of evidence by such boards, including the administration of (a) the procedure to be observed in bringing charges before oaths and afrmations to witnesses; commanding ofcers and appropriate superior authorities; (x) fees and forms; (b) the manner in which charges so brought are to be (y) prescribing anything which may be prescribed under this investigated, and the taking of evidence (whether orally or in writing, whether on oath or not and whether in full or in Act, other than a matter which may be prescribed under abstract form) for the purpose of investigating or dealing section 228 (2) (m); 126 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 127 summarily with such charges or otherwise as a preliminary to the rules of procedure relating to the investigation their trial by court martial, and in any case making provision or trial of, or award of punishment for, offences for the application of section 91 in any case where the which may be tried by courts martial, commanding accused requires that evidence shall be taken on oath; ofcers or appropriate superior authorities or to the conrmation and revision of the ndings and sentences of (c) adding to a charge which has been investigated, or replacing courts martial; it with, a new charge for an offence disclosed by evidence taken on the investigation, and treating the investigation as (m) any matter which may be prescribed in relation to the the investigation of the new charge; matters mentioned in this subsection.

(d) the convening and constitution of courts martial; (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, (e) the sittings, adjournment and dissolution of courts and, without prejudice to the generality of the foregoing, as to the martial.

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 (f) the procedure to be observed in trials by court martial; and as to the trial of persons jointly or separately), for requiring or authorizing the presiding ofcer of a court martial in specied cases (g) the representation of the accused at such trials; 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 (h) procuring the attendance of witnesses before courts martial the court and any ofcers under instruction, and for applying to the and at the taking of evidence in the circumstances described judge advocate and his proceedings on any such determination any in paragraph (b); specied provisions of this Act relating to the court or its members and (i) applying in relation to proceedings before commanding the proceedings thereof.

ofcers and appropriate superior authorities, and otherwise in (4) Rules of procedure may make provision for determining the relation to proceedings preliminary to trial by court marital, cases in which and the extent to which courts martial may, in sentencing all or any of the provisions of sections 93, 94 and 95; 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 (j) empowering a court martial or the convening ofcer, in has committed, and in such case may also make provision for conferring specied cases and to a specied extent, to amend a charge on the court taking one or more offences into consideration power to which is being tried by the court, but so that the power shall direct the making of such deductions from the offenders pay as the not be exercisable in circumstances substantially different court would have had power to direct if he had been found guilty of the from those in which indictments are amendable by a civil offence or offences taken into consideration as well as of the offences court, and shall not be exercisable except subject to the same of which he was in fact found guilty.

conditions (as nearly as circumstances admit) as those subject to which indictments may be amended; 229.

( Repealed by 12 of 1978, Sch.).

(k) empowering a court martial, where the particulars 230.

The Chief Justice may make rules prescribing the practice Rules of court.

proved or admitted at the trial differ from those and procedure in appeals under Part IX.

alleged in the charge but are sufcient to support a nding of guilty of the like offence as that charged, to make a 231.

(1) Any power conferred by this Act to make regulations, Powers exercisable in nding of guilty subject to specied exceptions or variations, rules, orders or other instruments shall include power to make provision subsidiary legislation.

if it appears to the court that the difference is not so material for specied cases or classes of cases, and to make different provision for as to have prejudiced the accused in his defence; different cases or classes of cases, and classes of cases may be dened (l) the forms of orders and other documents to be made by reference to any circumstances specied in the instrument.

for the purposes of any provision of this Act or (2) Any regulations, rules, orders or other instruments made under 128 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 129 this Act may- (a) impose conditions, or require acts or things to be performed Offence Charged Alternative Offence or done to the satisfaction of any person named therein, 4.

Disobeying in such a manner as 4.

Disobeying a lawful command whether or not he is a member of the armed forces or the to show wilful deance of wilfully or through neglect.

constabulary; authority, a lawful command (b) empower such a person to issue directions, either orally given or sent him personally.

or in writing, requiring acts or things to be performed or 5.

Desertion.

5.

Absence without leave.

done, or prohibiting acts or things from being performed 6.

Attempting to desert.

6.

Absence without leave.

or done; or 7.

Stealing property.

7.

Fraudulently misapplying (c) prescribe periods or dates within, upon or before which such property.

acts or things shall be performed or done or such conditions 8.

An offence under section 38 8.

The corresponding offence shall be fullled, and providing for appeal against any such involving wilfulness.

involving negligence.

imposition, requirement, or directions.

9.

An offence under section 49(1).

9.

Any offence under section 49 232.

Save as expressly provided by this Act, any direction, (2).

Execution of orders, instruments, etc.

requirement, order or determination which under this Act may be given 10.

Any offence under section 50 10.

The corresponding offence or made by an ofcer or a service authority may be signied under the involving striking.

involving the use of violence other than striking.

hand of any ofcer duly authorized in that behalf; and any instrument The corresponding offence signifying such direction, requirement, order or determination and involving the offering of purporting to be signed by an ofcer stated therein to be so authorized violence.

shall, unless the contrary is proved, be presumed to have been signed by an ofcer so authorized.

11.

Any offence under section 50 11.

The corresponding offence involving the use of violence involving the offering of other than striking.

violence.

FIRST SCHEDULE (s.

96) alternatIVe offenCes of WhICh aCCused may be ConVICted by Court martIal SECOND SCHEDULE (ss.

169 (2), 173 (4) and 193) Offence Charged Alternative Offence oath of allegIanCe 1.

Striking his superior ofcer.

1.

Using violence to his superior I,.

ofcer otherwise than by striking do hereby swear by Almighty God [or do hereby solemnly and sincerely him.

Offering violence to his afrm] that- superior ofcer.

2.

Using violence to his superior 2.

Offering violence to his superior (i) I will be faithful and bear true allegiance to the President and to the Republic of Kenya.

ofcer otherwise than by ofcer.

striking him.

(ii) I will faithfully serve the President and the Republic of Ke- nya as an Ofcer [or Serviceman] of the Armed Forces of 3.

Using threatening language to his 3.

Using insubordinate language to the Republic of Kenya [or as a member of the Armed Forces Constabulary]; superior ofcer.

his superior ofcer.

(iii) I will obey all laws, and all orders, regulations, directions and instructions concerning the Armed Forces of the Republic of 130 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 131 Kenya [or the Armed Forces Constabulary]; and [Subsidiary] (iv) I will discharge all the duties of an Ofcer [or Serviceman] of SUBSIDIARY LEGISLATION L.N.

250/1969, the Armed Forces of the Republic of Kenya [or as a member of L.N.

552/1988.

the Armed Forces Constabulary] according to the law, without Regulations under section 227 fear, favour, affection or ill-will.

THE ARMED FORCES (ARMED FORCES CONSTABULARY SUMMARY JURISDICTION) REGULATIONS Signature or thumb-print of person making the oath Sworn [or afrmed] by the said 1.

These Regulations may be cited as the Armed Forces (Armed Forces Citation.

Constabulary-Summary Jurisdiction) Regulations.

after the oath had been read over 2.

In these Regulations- Interpretation.

and explained to him in the commanding ofcer means the commanding ofcer of the unit to which language, which he acknowledged a member of the constabulary is attached; to understand, at.this day of , 19.

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).

Delegation of 4.

(1) subject to paragraph (2) the Commandant, with the agreement 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.

The Commandant and the commanding ofcer shall not deal summarily 132 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 133 [Subsidiary] [Subsidiary] L.N.

552/1988.

with a charge under any of the following sections of the Act- 4.

Taking and driving away a motor vehicle without the consent of the (a) sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 28 (1) and owner or other lawful authority, contrary to section 65 of the Trafc Act.

31; 5.

Reckless or dangerous driving of a bicycle, contrary to section 86 of (b) sections 38 (a) and 39 (a), where the subject matter exceeds in the Trafc Act.

value one thousand shillings; Act.

6.

Careless driving of a bicycle, contrary to section 87 of the Trafc (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; THE ARMED FORCES (GENERAL) REGULATIONS L.N.

251/1969.

(d) section 66, where the Commandant and the commanding ofcer 1.

These Regulations may be cited as the Armed Forces (General) Citation.

may not deal summarily with the substantive offence; Regulations.

(e) section 69, unless the corresponding civil offence is one of those Interpretation.

2.

In these Regulations specied in the Schedule.

Stoppages.

civilian employee means a person who is subject to the Act by virtue 6.

The Commandant and the commanding ofcer shall not, without the of section 9 thereof; permission of higher authority, award the punishment of stoppages exceeding one thousand shillings.

detachment means a part of a unit which is so separated from the unit Dismissal and reduction in rank.

7.

The punishments of dismissal and reduction in rank, when awarded by 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.

a commanding ofcer, are subject to conrmation by the Commandant.

Restriction on 3.

(1) For the purposes of the denition contained in section 2 (1) of the Commanding ofcer.

summary dealing 8.

A commanding ofcer of the rank of Deputy Commandant may only with charges by award the following punishments- 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- commanding ofcer (a) a ne not exceeding the equivalent of half a months pay; of the rank of (a) is in immediate command of the unit to which that member belongs captain.

(b) stoppages up to a maximum of ve hundred shillings.

or is attached and who is directly responsible in disciplinary matters Restriction on to an ofcer empowered to convene a court martial to try an ofcer or serviceman belonging or attached to that unit; or summary dealing 9.

A commanding ofcer of a rank of Inspector of Constabulary or below with charges by may only award the following punishments- (b) where that member is serving with a detachment which has commanding ofcer (a) a ne not exceeding the equivalent of a quarter of a months not been placed for disciplinary purposes under the command of the rank of lieutenant.

pay; of the commanding ofcer of another unit or detachment, is the (b) stoppages up to a maximum of three hundred shillings.

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 SCHEDULE (r.

5) of the commanding ofcer of another unit or detachment, is the commanding ofcer of that other unit or other detachment; or CIVIl offenCes WhICh a CommandIng offICer or approprIate (d) in any case not falling within paragraph (a) or paragraph (b), is by superIor authorIty may deal WIth summarIly the custom of the service the ofcer entitled to exercise the powers of a commanding ofcer in relation to that member (otherwise than Cap.

63.

1.

Theft, contrary to section 275 of the Penal Code, where the value of by delegated authority).

the thing stolen does not exceed two hundred shillings.

(2) In paragraph (1), the reference to a member of the armed forces 2.

Common assault, contrary to section 250 of the Penal Code.

Cap.

403.

belonging or being attached to or serving with a unit or detachment, includes 3.

Careless driving of a motor vehicle, contrary to section 49 of the Trafc Act.

a reference to a civilian employee being employed in the service of that unit 134 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 135 [Subsidiary] or detachment or of any part or member thereof or accompanying that unit or [Subsidiary] any part thereof.

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 Ofcer appointed to 4.

(1) An ofcer appointed to command a unit shall, irrespective of these Regulations.

command.

seniority, exercise command over all other ofcers serving therein.

(2) The certicate required by section 75 (2) of the Act to be handed over (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 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.

commanding ofcer of an accused or by an ofcer to whom those powers have been delegated by the commanding ofcer.

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.

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 13.

Without prejudice to any proceedings under any other section of Investigation of serving therein except the ofcer appointed to command the unit.

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 Senior ofcers.

6.

In the absence of both the ofcer in command of a unit and the ofcer be investigated- appointed second in command thereof, the senior ofcer in that unit shall exercise command over all other ofcers serving therein.

(a) if personnel belonging to more than one unit are concerned, by a Powers of command.

7.

The powers of command to be exercised by ofcers shall be over board of inquiry convened under the Act; or ofcers junior to them and over all servicemen.

(b) if personnel belonging only to the one unit are concerned- Appointments, 8.

The Chief of General Staff may make standing orders with respect to (i) by a board of inquiry convened as aforesaid; or the administration of pay and allowances and the promotion of personnel, and promotion, pay and the appointments which may be held by personnel.

allowances.

(ii) by the commanding ofcer of the unit concerned, or by an ofcer 9.

The Chief of General Staff or the Commander, in respect of his appointed by him both of whom may consider evidence, either Standing orders.

written or oral, relating to such damage or loss as aforesaid: service, may make general, special, routine and standing orders with respect to the following matters- Provided that in every case where the cost and extent of the damage or (a) discipline, control, good order and guidance; loss will total two thousand shillings or more such investigation shall be by a board of inquiry convened as aforesaid.

(b) organization, administration and duties; 14.

The amount which a person may be required to contribute under Contribution towards (c) the distribution, posting, transfer, attachment and inspection of subsection (1) of section 149 of the Act towards compensation for any damage barrack damage.

personnel; 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 (d) the description, supply, use and disposal of arms, accoutrements, compensation for the damage or loss: clothing and other stores.

Provided that where any part of the amount of the damage or loss has 10.

Any matter required by the Act to be promulgated shall be been written off, or is the subject of an application for write-off, as a charge Manner of promulgated either- against the public under any regulations for the time being in force relating to promulgation.

write-off, the amount of the damage or loss for the purposes of these Regulations (a) by being communicated to the accused; or 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.

(b) if the accused absents himself without leave before the matter can 15.

(1) Subject to paragraph (2) of this regulation, an investigation for Investigation into be communicated to him, by being published in the orders of the the purpose of section 148 (1) of the Act into the cause of any loss or damage loss or damage of unit to which he belongs or is attached; or to public property shall be by- public property.

(c) in such other manner as may be directed by the conrming ofcer (a) a board of inquiry convened under section 223 of the Act; or or reviewing authority in exceptional cases.

136 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 137 [Subsidiary] (b) an examination by the Commander, or by an ofcer authorized by [Subsidiary] him, of evidence, whether oral or written relating to any matter.

FIRST SCHEDULE (r.

11 (1)) (2) Where during the course of an examination of evidence under paragraph (1) (b) it appears to the Commander or authorized ofcer that a CertIfICate under seCtIon 75 (1) of the armed forCes aCt person may have been responsible for such loss or damage as aforesaid, that I certify that.

(full name) whose service person shall be given an opportunity of making a statement, if he so desires, particulars are given below appeared before the.

Magistrates Court in accordance with for the consideration of the Commander or authorized ofcer: 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.

Provided that, where in any proceedings before a court martial or an (place) on.

(date) and was committed to civil custody/delivered into service custody*.

appropriate superior authority a person has been convicted in circumstances The ofcer/serviceman* admitted/did not admit* that he had illegally absented himself without involving a nding that he was guilty of a wrongful act or negligence which leave from his unit at.

(place) on.

(date).

occasioned such loss or damage as aforesaid, it shall not be necessary to give him an opportunity of making any such statement as aforesaid.

No.

.

Deductions and 16.

(1) The pay of an ofcer or serviceman shall be available to meet Rank.

forfeitures.

any restitution order or deductions which may be awarded or ordered and any Service particulars of the ofcer or serviceman referred to above forfeiture or ne which may be awarded under service law.

Name.

(2) For the purposes of section 145 of the Act, the minimum monthly rate { Unit.

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.

Dated this.

day of.

,19.

(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 Magistrate may be due to him.

*Delete as appropriate.

(4) Without prejudice to the power of remission of forfeitures and deductions by the Commander under section 150 of the Act, any deduction SECOND SCHEDULE (r.

11 (2) of pay imposed under section 148 of the Act may be remitted by any ofcer superior in command to the ofcer imposing the deduction.

CertIfICate under seCtIon 75 (2) of the armed forCes aCt Forfeiture of pay for 17.

For the purposes of section 146 (3) of the Act, the number of days aI certify that.

(full name) surrendered himself absence from duty.

person is absent or is in hospital shall be computed as follows- at.

(place) on the.

day of ., 19., as being illegally (a) the number of days shall be reckoned from the time that the absence, absent from his unit at.

(place) on the.

day of.

19., and gave the following particulars- 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 No.

.

and save as hereinafter provided a part of a day shall be reckoned Rank.

as one day; and Name.

(c) when the total period of absence or the time spent in hospital is Unit.

less than six hours no account shall be taken thereof unless the Dated this.

day of ., 19.

person was, by reason of his being absent or in hospital, prevented.

from performing a service duty which thereby devolved on some other person.

Police ofcer who caused the above-named person to be delivered into service custody 138 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 139 [Subsidiary] THIRD SCHEDULE (r.

12) [Subsidiary] 1.

Unit orders book.

26.

Runway controllers log book.

27.

Authorization for movement of mechanical transport.

2.

Unit order book, box le.

3.

Register of deserters.

28.

Mechanical transport vehicle log book.

4.

Registers of public animals 29.

Ships log book.

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.

140 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 141 [Subsidiary] [Subsidiary] L.N.

252/1969.

THE ARMED FORCES (ACTIVE SERVICE PUNISHMENT) (b) to protect himself or others from injury.

REGULATIONS (2) An offender may not be placed under personal restraint except in Citation.

1.

These Regulations may be cited as the Armed Forces (Active Service accordance with the following conditions- Punishment) Regulations.

(a) the period for which the offender may be kept continuously under Interpretation.

2.

In these Regulations- personal restraint shall not exceed twenty-four hours: offender means a person subject to the Act who has been awarded Provided that the ofcer superior in command to the ofcer active service punishment by sentence of a court martial or by a commanding supervising the personal restraint may authorize such additional period ofcer.

as he may consider necessary so long as the total period of such restraint Places where 3.

An offender shall undergo active service punishment with the unit to does not exceed forty-eighthours at any one time; and punishment may be which he belongs or to which he is for the time being attached: (b) handcuffs shall not be placed with the hands of the offender behind carried out.

his body unless it is necessary by reason of his violence.

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 ARMED FORCES (BOARD OF INQUIRY) L.N.

253/1969.

the offender may be required to undergo the whole or any part of his punishment REGULATIONS elsewhere under the supervision of that ofcer.

Nature of 4.

Active service punishment consists of one or more of the following, 1.

These Regulations may be cited as the Armed Forces (Board of Citation.

punishment.

in addition to those duties which an offender might be required to perform if Inquiry) Regulations.

he were not undergoing punishment- 2.

In these Regulations, represented means represented by an ofcer Interpretation.

(a) solitary connement not exceeding three days in any one week or an advocate.

and in such place and such manner as may be directed by the ofcer commanding the unit in which the offender undergoing the 3.

A Board of Inquiry may be convened for the purposes of section 223 Convening authority.

punishment is serving, or by the ofcer appointed to supervise the of the Act by order of the Commander, any ofcer commanding a formation carrying out of such punishment; or body of servicemen or any ofcer commanding a unit or detachment of the (b) additional drill not exceeding three separate periods of one hour armed forces, hereinafter referred to as the convening authority.

each in any one day with an interval of not less than one hour 4.

The following provisions shall apply in relation to the order convening Order convening a between each drill: a board- board.

(a) the order shall specify the composition of the board and the place Provided that such drill shall not be performed on Sundays or, if and time at which the board shall assemble; 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; (b) the order may, and where the matter referred to the board is that (c) such other duties and loss of privileges as may be directed by the mentioned in regulation 7 (1) (a) shall, specify the terms of reference of the board and be published in service orders; ofcer commanding the unit in which the offender undergoing the punishment is serving, or by the ofcer appointed to supervise the (c) the order may direct the board to express their opinion on any carrying out of the punishment; question arising out of any matter referred to the board; and but so that an offender shall not be subjected to any treatment to which he (d) the convening authority may at any time revoke, vary or suspend could not be subjected if he were undergoing a sentence of imprisonment in the order.

a service prison.

Personal restraint.

5.

(1) An offender may not be placed under personal restraint except- 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.

(a) to prevent his escape; or of lieutenant or above or corresponding rank who shall be the chairman of the 142 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 143 [Subsidiary] board and not more than one of whom may be a serviceman of the rank of convening authority may stay the proceedings of the board until [Subsidiary] such investigation or proceedings have been completed and shall Warrant Ofcer Class II or above or corresponding rank.

then dissolve the board if satised that a board is not necessary.

(2) The convening authority shall appoint the chairman and members (2) Paragraph (1) does not apply to the convening of a board with of a board by name.

reference to such absence and such deciency (if any) as are mentioned in Duties of board.

6.

A board shall investigate and report on the facts relating to any matter regulation 7 (1) (a) but where the convening authority is satised that the absence has terminated, and- referred to them and, if directed so to do, to express their opinion on any question arising out of any such matter.

(a) a board has not yet been convened with reference to the absence and deciency (if any), the convening authority shall not be required Matters for reference 7.

(1) Subject to the provisions of these Regulations, a board shall be to convene a board; and to board.

convened with reference to- (a) the absence of any person subject to the Act who has been (b) a board has already been convened with reference thereto, the continuously absent without leave for a period of not less than convening authority may forthwith dissolve the board.

twenty-one days and the deciency (if any) in public property 9.

A board shall assemble at the time and place stated in the order Assembly of board.

issued to him for his use; convening the board.

(b) the capture of any person subject to the Act by the enemy and 10.

The chairman shall lay the terms of reference before the board, and Procedure of board.

his conduct in captivity if, on his return from captivity, the the board shall proceed to hear and record evidence in accordance with these convening authority considers that there are reasonable grounds Regulations.

for suspecting- (i) that he was captured through disobedience to orders or wilful 11.

(1) The chairman may from time to time adjourn the board, which shall Adjournment and neglect of his duty; or sit on such occasions and in such places as he may from time to time direct.

reassembly.

(ii) that having been captured he failed to take any reasonable steps (2) Without prejudice to paragraph (1), the convening authority may at available to him to rejoin the armed forces; or any time direct the board to reassemble for such purpose as may be specied by the convening authority.

(iii) that having been captured he served with or aided the enemy in 12.

(1) A board shall hear the evidence of the witnesses who have been Witnesses.

the prosecution of hostilities or measures calculated to inuence morale or in any other manner whatsoever not authorized by made available by the convening authority, and may hear the evidence of such international usage; and other person as they think t.

(c) the death of any person subject to the Act, where an inquiry into (2) While a civilian witness is giving evidence before a board, he may be the death is not required to be held by any civil authority.

represented, but subject to regulation 13 his representative shall not be entitled to be present at any other time.

(2) Subject as aforesaid, a board may be convened with reference to any (3) A civilian witness shall be entitled to receive the reasonable expenses matter which the convening authority decides to refer to a board.

of his attendance and a reasonable allowance in respect of loss of time.

Deferring and staying 8.

(1) Subject to paragraph (2) where any matter is the subject of (4) The board may receive any evidence which it considers relevant to of proceedings.

investigation by any authority of the armed forces, or by a civil authority, or the matter referred to it, whether oral or written and whether or not it would be of proceedings under service law, or of proceedings in a civil court whether admissible in a civil court.

within or outside Kenya, and- (a) a board has not been convened with reference thereto, the convening 13.

(1) Where it appears to the convening authority, or if a board has been Persons who may be authority may defer the convening of a board until the completion of convened either to the convening authority or to the chairman, that any witness affected by nding.

such investigation or proceedings as aforesaid and upon completion 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 thereof shall not be required to convene a board if satised that a his view reasonable and necessary to secure that such witness or other person board is not necessary; or has notice of the proceedings and, if he so desires, has an opportunity of being (b) a board has already been convened with reference thereto, the present, and represented, at the sittings of the board, or at such part thereof as 144 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 145 [Subsidiary] [Subsidiary] the convening authority or, as the case may be, the chairman, may specify.

(2) The evidence of each witness shall be recorded in narrative form (2) Any such witness or other person referred to in paragraph (1) may recording as nearly as possible the words used: give evidence, question witnesses or call witnesses to give evidence on the Provided that, if the board considers it necessary, any particular question matters which may affect him, and, if he is represented, his representative may and answer shall be taken down verbatim.

question witnesses, but a representative shall not address the board except with the permission of the chairman.

(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 Oaths.

14.

(1) The convening authority shall have power to direct that, subject by him.

to paragraph (3) every witness before a board shall be examined on oath: (4) A record of the proceedings shall be signed by the chairman and such Provided that, where a child of tender years called as a witness does other members of the board as there may be and forwarded to the convening not, in the opinion of the board, understand the nature of an oath, his evidence authority.

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 17.

Where a board reports that a person subject to the Act has been absent Record of report.

understands the duty of speaking the truth.

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 (2) Subject to paragraph (3), an oath shall be administered to any person in attendance on a board as interpreter.

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 Infra.

(3) An oath shall be administered before a board in the form and manner in the book maintained for the purpose and in accordance with the form set prescribed by the Armed Forces Rules of Procedure.

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) 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.

Record of a report of a Board of Inquiry into the absence of.

(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 [number, rank, name and unit] an extract therefrom of the relevant parts with the original, and after they have entered in pursuance of section 224 of the Armed Forces Act.

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 The Board of Inquiry sitting at.

on the 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.

.

day of ., 19., and consisting of.

.

(3) Every exhibit shall-.

[rank, name and unit) chairman, and.

(a) be marked with a number or letter and be signed by the chairman .[rank, name and unit] } .[rank, name and unit] members.

or have a label afxed to it bearing a number or letter and the signature of the chairman; report that.

.

[number, rank, name (b) be attached to or kept with a record of the proceedings unless in and unit] has been absent from.

[unit] at.

.

the opinion of the board it is not expedient to attach it to or keep [place] without leave or other sufcient cause for a period beginning on the it with the record.

.day of.

,19., and is still so absent, and further report* that the said.

[rank and name] was on the.

day (4) When an exhibit is not attached to or kept with the record of the of.

,19., and still is decient of the public property issued to him for proceedings under paragraph (3) (b), the chairman shall ensure that proper his use particulars of which are set out below- 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 * Omit if no such further report is made.

to follow the course of the proceedings.

146 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 147 [Subsidiary] [Subsidiary] Dated this.

day of ., 19.

of a commanding ofcer in relation to the accused (otherwise than (Signed).

by delegated authority).

Commanding Ofcer of the (2) In paragraph (1) the reference to the accused belonging or being person referred to in the report 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.

L.N.

254/1969, THE ARMED FORCES (SUMMARY JURISDICTION) Delegation.

REGULATIONS 4.

(1) Subject to regulation 10, a commanding ofcer may delegate to L.N.

145/1985, a subordinate commander of whatever rank who is under his command and L.N.

553/1988.

directly responsible to him in disciplinary matters the power to investigate and Citation.

1.

These Regulations may be cited as the Armed Forces (Summary deal summarily with charges with which he himself may so deal.

Jurisdiction) Regulations.

(2) Notwithstanding the restrictions placed upon the powers of a Interpretation.

2.

(1) In these Regulations- 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 civilian employee means a person who is subject to the Act by virtue of the commanding ofcer of another unit or detachment, that commanding of section 9 thereof; ofcer may appoint a subordinate commander and delegate to him the full powers of a commanding ofcer.

detachment means a part of a unit which is so separated from the unit (3) A delegation under paragraph (1) or paragraph (2) shall not to which it belongs, that the commanding ofcer of that unit cannot effectively include- exercise his disciplinary powers as commanding ofcer over it, or a ship; (a) the power to remand the accused for trial by court martial; or subordinate commander means an ofcer appointed as such by the commanding ofcer of the accused.

(b) the power to order the making of an abstract of evidence.

(2) These Regulations do not apply in respect of members of the constabulary.

(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 3.

(1) For the purposes of these Regulations, the commanding ofcer Commanding ofcer.

to whom it is delegated, in addition to the restrictions imposed by regulation of an accused is the ofcer who has powers of command over the accused and 10.

who- Restriction on (a) is in immediate command of the unit to which the accused belongs 5.

A commanding ofcer shall not deal summarily with a charge under or is attached and who is directly responsible in disciplinary matters any of the following sections of the Act- commanding ofcer dealing summarily to an ofcer empowered to convene a court martial to try an ofcer (a) sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, and 28 (1) with charges.

or serviceman belonging or attached to that unit; or ; L.N.

145/1985, (b) where the accused is serving with a detachment which has not L.N.

553/1988.

been placed for disciplinary purposes under the command of (b) section 31, unless the desertion alleged falls within the denition of that offence in subsection 2 (d); the commanding ofcer of another unit or detachment, is the commanding ofcer of that detachment; or (c) sections 38 (a) and 39 (a), where the subject-matter exceeds in (c) where the accused is serving with a unit or detachment which value one thousand shillings; has been placed for disciplinary purposes under the command (d) sections 38 (b) and 39 (b), 40, 43, 44, 45, 46, 47, 49 (1), 52, 53, of the commanding ofcer of another unit or detachment, is the 55, 56, 57, 60, 61, 62, 63, 64 and 65; commanding ofcer of that other unit or other detachment; or (d) in any case not falling within paragraph (a) or paragraph (b), is by (e) section 66, where the commanding ofcer may not deal summarily with the substantive offence; the custom of the service the ofcer entitled to exercise the powers 148 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 149 [Subsidiary] (f) section 69, unless the corresponding civil offence is one of those (b) to a serviceman, other than a warrant ofcer or non-commissioned [Subsidiary] specied in the Schedule to these Regulations.

ofcer- Limitation on awarding stoppages.

6.

A commanding ofcer shall not, without the permission of higher (i) imprisonment for a period not exceeding twenty-one days; L.N.

553/1988.

authority, award the punishment of stoppages exceeding one thousand shillings.

(ii) a ne not exceeding the equivalent of a quarter of a months Limitation of powers pay; of commanding 7.

A commanding ofcer of the rank of captain or corresponding rank may only award the following punishments- (iii) the minor punishments specied in regulation 13; ofcer of the rank of captain.

(a) to a warrant ofcer or non-commissioned ofcer- (iv) admonition; L.N.

553/1988.

(i) a ne not exceeding the equivalent of half a months pay; (v) stoppages up to a maximum of three hundred shillings.

(ii) severe reprimand; 9.

Where the commanding ofcer is commanding ofcer by virtue of Commanding ofcer (iii) reprimand; paragraph (b) of regulation 3- of detachment.

(iv) admonition; (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; (v) stoppages up to a maximum of ve hundred shillings; (b) to a serviceman, other than a warrant ofcer or noncommissioned (b) where he has been so restricted in the exercise of his powers, he may nevertheless exercise his full powers as a commanding ofcer ofcer- if he considers it necessary for him to do so for the maintenance of (i) imprisonment for a period not exceeding forty-two days; 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.

(ii) a ne not exceeding the equivalent of half a months pay; 10.

A subordinate commander to whom the power to investigate and Limitation on powers (iii) the minor punishments specied in regulation 13; deal summarily with charges has been delegated under regulation 4 may only of ofcer exercising (iv) admonition; award the following punishments- delegated powers.

(v) stoppages up to a maximum of two hundred shillings.

(a) if he is of the rank of major or corresponding rank or above- (i) to a non-commissioned ofcer- Limitation on powers of commanding 8.

A commanding ofcer of the rank of lieutenant or corresponding rank, (a) a ne not exceeding the equivalent of half a months pay; or below, may only award the following punishments- ofcer not above (b) severe reprimand; lieutenant.

(a) to a warrant ofcer or non-commissioned ofcer- L.N.

553/1988.

(c) reprimand; (i) a ne not exceeding the equivalent of a quarter of a months pay; (d) admonition; (ii) severe reprimand; (ii) to a serviceman, other than a warrant ofcer or non-commis- (iii) reprimand; sioned ofcer- (iv) admonition; (a) imprisonment for a period not exceeding twenty-eight days; (v) stoppages up to a maximum of three hundred shillings; (b) a ne not exceeding the equivalent of half a months pay; 150 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 151 [Subsidiary] (c) the minor punishments specied in regulation 13; [Subsidiary] (d) admonition; lieutenant-general.

.

.

.

.

brigadier (b) if he is of the rank of captain or corresponding rank or general.

.

.

.

.

major-general.

below- 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.

(i) to a senior sergeant or sergeant- (a) sections 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, and 28 (1); L.N.

145/1985, (a) reprimand; L.N.

553/1988.

(b) sections 38 (a) and 39 (a) where the subject-matter exceeds in (b) admonition; value two thousand shillings; (ii) to a corporal or lance corporal- (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; (a) a ne not exceeding the equivalent of a quarter of a months (d) section 66, where the appropriate superior authority may not deal pay; summarily with the substantive offence; (b) severe reprimand; (e) section 69, unless the corresponding civil offence is one of those (c) reprimand; specied in the Schedule to these Regulations.

(d) admonition; 13.

(1) The minor punishments which a commanding ofcer may award Award of minor under section 82 (4)(a) (vii) and (b) (iv) of the Act are- punishments.

(iii) to a private- L.N.

553/1988.

(a) up to twenty-eight days connement to barracks or stoppage of (a) imprisonment for a period not exceeding fourteen days; short leave, with or without extra duties; (b) a ne not exceeding the equivalent of a quarter of a months (b) up to twenty-eight days loss of privileges; pay, (c) the minor punishments specied in regulation 13; (c) extra guards or picquets, (d) admonition.

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- Appropriate superior one days.

authority.

11.

Any ofcer not below the rank of lieutenant-colonel or corresponding L.N.

145/1985.

rank who is appointed appropriate superior authority by the Commander is (2) The minor punishments which a subordinate commander may hereby prescribed for the purposes of section 79 of the Act as the appropriate award are- superior authority, in addition to the Commander: (a) up to twenty-one days connement to barracks or stoppage of 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 short leave, with or without extra duties; purposes of a case in which the accused is above the rank specied in the second (b) up to twenty-one days loss of privileges; column hereunder or corresponding rank- lieutenant-colonel.

.

.

.

.

captain (c) extra guards or picquets, colonel.

.

.

.

.

major except that a subordinate commander of the rank of captain or corresponding rank or below, shall not award minor punishments for a period exceeding brigadier.

.

.

.

.

lieutenant-colonel fourteen days.

major-general.

.

.

.

.

colonel (3) The periods specied in this regulation are the maximum periods which may be awarded in the course of any one hearing.

152 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 153 [Subsidiary] [Subsidiary] SCHEDULE (rr.

5 and 12) responsible for defence, or a person deputed by him in writing for the purposes of these Regulations; and (e) the Permanent Secretary of the Ministry for the time being CIVIl offenCes WhICh a CommandIng offICer or approprIate superIor authorIty may deal WIth summarIly responsible for education, or a person deputed by him in writing for the purposes of these Regulations.

Cap.

63.

1.

Theft, contrary to section 275 of the Penal Code, where the value of (4) The Board shall meet at such times as the chairman of the Board the thing stolen does not exceed two hundred shillings.

may decide.

2.

Common assault, contrary to section 250 of the Penal Code.

(2) The chairman and not less than three members shall constitute a quorum.

Cap.

403.

3.

Careless driving of a motor vehicle, contrary to section 49 of the Trafc Act.

(3) The chairman shall have a deliberative vote, and in the case of an 4.

Taking and driving away a motor vehicle without the consent of the 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 owner or other lawful authority, contrary to section 65 of the Trafc Act.

Board.

5.

Reckless or dangerous driving of a bicycle, contrary to section 86 of (4) Every recommendation of the Board shall be signied under the the Trafc Act.

hand of the chairman.

Act.

6.

Careless driving of a bicycle, contrary to section 87 of the Trafc (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 THE ARMED FORCES (COMMISSIONING OF OFFICERS) time as he thinks t any person or persons whose assistance or advice he may L.N.

256/1969.

REGULATIONS 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.

1.

These Regulations may be cited as the Armed Forces (Commissioning (7) The chairman may appoint a secretary to the Board.

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.

THE ARMED FORCES (EXECUTION OF SENTENCE OF L.N.

64/1970.

(2) The function of the Board shall be to make recommendations to DEATH) REGULATIONS the Defence Council pursuant to the provisions of section 169 of the Armed 1.

These Regulations may be cited as the Armed Forces (Execution of Citation.

Forces Act in relation to each service of the armed forces as to the grant of Sentence of Death) Regulations.

commissions in that service to citizens of Kenya.

3.

The Board shall consist of- 2.

In these Regulations- Interpretation.

(a) the Chief of General Staff, or a person deputed by him in writing 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 for the purposes of these Regulations, who shall be chairman; of death is for the time being; (b) two ofcers of or above the rank of captain or corresponding person under sentence means a person sentenced to suffer death under rank; the Act whose sentence has not been commuted.

(c) the Permanent Secretary in the Ofce of the President, or a person 3.

(1) a person under sentence shall be detained in accordance with this Custody of person deputed by him in writing for the purposes of these Regulations; regulation.

under sentence.

(d) the Permanent Secretary of the Ministry for the time being (2) During the whole or any part of the period between the passing and 154 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 155 [Subsidiary] [Subsidiary] the carrying out of the sentence, a person under such sentence may be detained in- 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 (a) civil custody; or by written order of the local commander; (b) military custody.

(k) he may be visited by such of his relatives, friends and legal advisers (3) The manner in which a person under sentence who is in the civil or as he desires to see and as are authorized to visit him by written order of the local commander; 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 (l) he may be visited at any time by a chaplain of his own creed or 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 denomination or, if he so desires a chaplain of another creed or denomination; that court, shall be as follows- (a) he may be taken to, kept in custody at and brought back from any (m) except as hereinbefore provided, he shall not be visited by any place such as aforesaid in civil or military custody; person; (b) he may be kept in such custody at any such place as aforesaid in (n) all visits shall take place in the presence and hearing of an ofcer of any manner ordered by the High Court.

the unit in which he is in custody unless permission to the contrary is given by the ofcer commanding the unit.

(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 5.

Notwithstanding regulations 3, 6 and 9, no person under sentence shall Transfer to civil in the form prescribed in the First Schedule or in a form substantially to the 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 like effect, and every such order shall be duly completed in accordance with of prisons or the deputy commissioner of prisons.

the instructions contained in the form.

Treatment of persons 4.

Where a person under sentence is in military custody- 6.

(1) If a person under sentence is in Kenya, the sentence shall be carried Where sentence may under sentence.

out in a civil prison.

be carried out.

(a) he shall be deprived of every article which it might be dangerous or inexpedient to leave in his possession; (2) If a person is under sentence is outside Kenya, the sentence shall be carried out in military custody.

(b) he shall be conned in a separate cell and kept apart from all other 7.

(1) A sentence of death passed under the Act which is to be carried Execution in military persons; out in military custody shall be executed by hanging or shooting as directed custody.

(c) he shall be kept by day and by night in the constant charge of two by the local commander.

persons who are ofcers, warrant ofcers or non-commissioned (2) After promulgation of a sentence of death, the local commander shall, ofcers; if the sentence is to be carried out in service custody, nominate an ofcer not Infra.

(d) he shall be subject to the Armed Forces(Imprisonment) Regulations below the rank of major to be responsible for the execution of the sentence.

so far as they are consistent with these Regulations; (3) Where a sentence of death is to be carried out in military custody, the (e) he shall not be required to perform any duties other than to keep following persons in addition to the executioner and his assistants or the ring clean his person and cell; party, as the case may be, shall be present- (f) he shall be allowed daily physical exercise; (a) the ofcer who is responsible for the due execution of the sentence of death in accordance with these Regulations; (g) he shall be granted facilities to correspond with his relatives, friends (b) a medical ofcer of the armed forces; and legal advisors; (h) he shall be permitted to smoke; (c) an ofcer nominated by the local commander who is able to identify the person under sentence as the person described in the death (i) he shall be visited once daily by an ofcer of the unit in which he is warrant and as the person who was tried and sentenced by court martial mentioned therein; 156 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 157 [Subsidiary] (d) a chaplain nominated by the local commander; [Subsidiary] FIRST SCHEDULE (r.

3 (4) ) (e) such ofcers, warrant ofcers and non-commissioned ofcers as order for the transfer to CIVIl Custody of a person may be detailed for escort and security purpose or to assist at the sentenCed to death by a Court martIal execution; * Delete if (f) the ofcer in command of the unit in which the person under To the Superintendent or other person in charge of (a) inapplicable.

Whereas.

(b) sentence is in custody, was by a court martial held at and no other person shall be present without the authority of the local convicted of the offence (s) of.

commander.

Execution in civil 8.

A sentence of death passed under the Act which is carried out in a civil .(c) and by a sentence passed on the custody.

prison shall be executed in accordance with the Prisons Act.

.day of ., 19.

Cap.

90.

was sentenced to suffer death, which sentence has been duly conrmed 9.

(1) The death warrant shall be issued by the local commander and in accordance with the Armed Forces Act, and has not been commuted: Death warrant.

shall be in the form in the Second Schedule, or in a form substantially to the like effect.

Now, therefore, in pursuance of the Armed Forces Act, I hereby order (2) The local commander shall not issue the death warrant until he is 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 satised that, having regard to section 111 and section 124 (A) of the Act, the competent jurisdiction or you are given further orders to discharge or deliver sentence of the death may be carried into effect.

over the said person in due course of law, and this shall be authority for so doing.

(3) No sentence of death passed under the Act shall be carried into effect Signed at this day of, 19 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 (d) to be carried out.

Rank and appointment.

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 (a) Insert the name and address of the prison.

military custody.

body and ascertain the fact of death and shall sign a certicate to that effect in the form in the Third Schedule.

A person under sentence of death must not be committed to a civil prison until consent has been obtained pursuant to (2) As soon as the medical ofcer has certied the fact of death in the regulation 5 of the Armed Forces (Execution of Sentence of manner aforesaid, the ofcer responsible for carrying the sentence into effect, Death) Regulations.

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 (b) Insert the full names of the person under sentence, and his number, to in regulation 7 (2) shall send the death warrant and the medical certicate rank and unit.

to the local commander.

Burial after execution 11.

The body of a person upon whom a sentence of death under the (c) Set out the statement (but not the particulars) of the offence and in military custody.

Act has been carried out in military custody shall be buried without military the relevant section of the Armed Forces Act.

Where there is more honours in a military cemetery or other place chosen by the local commander.

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.

158 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 159 [Subsidiary] SECOND SCHEDULE (r.

9 (11)) [Subsidiary] (g).

(h) death Warrant (a) Military ofcer or superintendent of civil prison responsible for To.

(a) carrying the sentence of death into effect.

Whereas.

(b) of (b) Insert the full names of the person under sentence, and his number, rank and unit.

the.was by a court martial held at.convicted of the offence(s) of (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.

(c), and by a sentence passed on the day of ., (f) Insert the place where the sentence of death was carried into 19, was sentenced to suffer death: effect.

And whereas the nding and sentence of the said court martial have (g) Signature of military ofcer responsible for carrying the sentence been conrmed and promulgated in accordance with the Armed Forces Act: of death into effect.

And whereas I am satised, having regard to regulation 9 (2) of the (h) Signature of mandatory witness, namely the ofcer nominated Armed Forces (Execution of Sentence of Death) Regulations, that the sentence under regulation 7(3) (c) of the Armed Forces (Execution of of death may be carried into effect: Sentence of Death) Regulations.

* Delete execution to be carried out in civil Now, therefore, I hereby order you to carry into effect the said sentence prison.

on(b) THIRD SCHEDULE (r.

10 (1)) by.(d) and for so doing this shall be sufcient authority for your so doing.

CertIfICate of medICal offICer (a) 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).

I,.

(b) a medical ofcer of the Armed Forces, hereby certify that I have this day examined the body of Signed at this day of ., 19 (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.

Rank.

Dated this day of 19.

Commanding Local Commander.

Rank return of Warrant (e) (a) Only required if sentence carried out in military custody.

The above sentence passed on.

(b) Full names of medical ofcer who attended the execution, stating (b) was carried into effect at.

(f) on rank and unit.

the .day of ., 19 , at hours.

(c) Full names of the person upon whom the sentence of death has 160 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 161 [Subsidiary] person under such sentence belongs or if such unit has no such [Subsidiary] been carried out into effect, and his number, rank and unit.

(d) Insert the place where the sentence of death was carried into prison, in a service prison established by some other unit; or effect.

(b) if there is no such service prison reasonably available, in a civil prison.

L.N.

14/1971.

THE ARMED FORCES (IMPRISONMENT) REGULATIONS (2) A service sentence of imprisonment which exceeds forty-two days Citation.

1.

These Regulations may be cited as the Armed Forces (Imprisonment) shall be served in a civil prison.

Regulations.

4.

(1) An entry in a unit Part II Orders notifying the imposition of a service Committal.

Interpretation.

2.

In these Regulations, unless the context otherwise requires - sentence of imprisonment not exceeding forty-two days upon any person shall legal adviser means - be sufcient warrant for the connement of such person in a service prison.

(a) an advocate; or (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 (b) if a service prison is outside Kenya, any person who, in the 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 opinion of the ofcer in charge, has rights and duties in the country detained in a civil prison.

concerned similar to those of an advocate; Release from (c) any clerk in the full-time service of an advocate or such a person, 5.

Subject to regulation 6, no person under a service sentence of custody.

and authorized in writing by the advocate or person to interview imprisonment, whether in service custody or in civil custody, shall be released a prisoner; from such custody otherwise than- (d) any ofcer representing or assisting a prisoner for the purposes of (a) in accordance with an order of a court of competent jurisdiction; his defence or in connexion with his petition or appeal; or (b) in accordance with an order in the form set out in the Third ofcer in charge means the ofcer for the time being commanding the Schedule; or unit upon whose premises a service prison is situated; prisoner means any person who is serving a service sentence of (c) on the expiration of his sentence less- imprisonment in a service prison; (i) in the case of a sentence served in a service prison, remission service prison means- allowed in accordance with these Regulations; or (a) any premises set aside by one of the Commanders as a place (ii) in the case of a sentence served in a civil prison, remission as of imprisonment for persons serving a service sentence of allowed in accordance with any written law relating to remis- imprisonment; sion of the sentence of a convicted criminal prisoner in such prison.

(b) any cell, room, hut, tent or other place which is situated within an Temporary release 6.

(1) The commanding ofcer of a person serving sentence of from service prison.

area or place occupied by a unit normally commanded by an ofcer imprisonment in a service prison may authorize the temporary release of such not below the rank of major or corresponding rank, and which is person from such prison in any of the following circumstances- used for the connement of any such persons; staff means the persons for the time being charged with the (a) in the case of the death or dangerous illness of a near relative of the administration of a service prison or with the custody of prisoners therein.

prisoner, and the commanding ofcer is satised that the presence of the prisoner is desirable; Service of sentences.

3.

(1) A service sentence of imprisonment which does not exceed forty- (b) where damage has been done to any premises occupied by the two days shall be served- next-of-kin of the prisoner and the commanding ofcer is satised (a) whenever practicable, in a service prison of the unit to which the that the presence of the prisoner is desirable; 162 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 163 [Subsidiary] (c) where the prisoner could make arrangements preliminary to or (2) The record of remission shall show the entitlement to remission [Subsidiary] earned by each prisoner, and also the details of any loss of remission awarded consequent upon the birth of his child, and the commanding ofcer in accordance with these Regulations.

is satised that the presence of the prisoner is desirable; (d) where the prisoner has requested facilities to enable him to marry 9.

One days remission of the sentence of a prisoner shall be forfeited in Forfeiture of remission.

a woman who is expecting a child; respect of each day on which the prisoner is unable to carry out work or training, which would otherwise be required of him, by reason of- (e) where there are domestic difculties concerning the prisoner or his (a) his sickness occasioned by his own misconduct; or family, and the commanding ofcer is satised that the personal attendance of the prisoner is desirable.

(b) his undergoing a sentence of a civil court; or (2) A temporary release under this regulation shall be subject to the (c) his being in the lawful custody of any civil authority; or following- (a) that the prisoner shall comply with any conditions laid down by (d) an award by the ofcer in charge under regulation 34 for an offence the commanding ofcer and to be observed by, or in relation to, the under regulation 33.

prisoner during the period of his temporary release, including any Effect on remission 10.

If, while a person is serving a sentence of imprisonment he is conditions as to custody during the period of temporary release, of subsequent and as to the place or places where the prisoner may or may not awarded a further sentence of imprisonment, remission shall be calculated under sentences of go during that period; regulation 7, taking into account the total period to which the said person was imprisonment.

(b) that, if the prisoner fails to comply with any such conditions, the actually sentenced and which he would be required to serve.

Corporal punishment.

period of his temporary release shall thereupon be terminated and 11.

Corporal punishment shall not be inicted on prisoners.

it shall be the duty of the prisoner to return forthwith to the service 12.

Any member of the staff may use such force against a prisoner as Use of force.

prison.

is reasonably necessary to make the prisoner obey any lawful order which he (3) Any period of temporary release shall not count as part of the service refuses to obey or in order to maintain discipline.

sentence to be served.

Requirements of Period of remission 13.

(1) No room shall be used as, or as part of, a service prison unless a service prisons.

in service prison.

7.

(1) The periods of remission which can be earned by good conduct medical ofcer has certied that its size, lighting, heating, ventilation and ttings by a prisoner shall be- 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 (a) if the sentence does not exceed thirty-one days, nil; to a room shall state the maximum number of prisoners who may be conned therein.

(b) if the sentence exceeds thirty-one days, one-third of the sentence (2) The size of rooms intended for occupation by prisoners shall be such except in a case where this would result in the said person serving as to provide at least six hundred cubic feet capacity for each such prisoner, 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 unless in any particular case, having regard to the exigencies of the service, serve to thirty-one days.

the ofcer in charge authorizes temporary accommodation for prisoners in accommodation of smaller capacity.

(2) For the purpose of calculating remission in accordance with paragraph (3) Two prisoners shall not be conned together in one room, the (1), fractions of a day shall be ignored.

connement must be solitary or of at least three prisoners in the room.

(3) A prisoner due to be released on a Sunday, Christmas Day or Good (4) A prisoner shall not be accommodated in the same room or place as Friday shall be released on the previous day and the uncompleted day shall be a person in arrest.

deemed to be remitted.

Records of remission.

14.

(1) During the whole of his sentence a prisoner shall be engaged in Work.

8.

(1) The ofcer in charge shall appoint an ofcer to be responsible for work or training for not more than nine nor less than six hours a day excluding maintaining the record of remissions to which a prisoner may be entitled in times for meals.

accordance with regulation 7.

164 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 165 [Subsidiary] the purpose of lighting tobacco or cigarettes.

[Subsidiary] (2) Nothing in this regulation shall require that a prisoner shall be engaged in work or training at any time when he is- 20.

(1) A prisoner shall be allowed to write letters as follows- Correspondence.

(a) in close connement; or (a) on rst admission, one letter; and (b) undergoing restricted diets as a punishment; or (b) in every week of his sentence following the week in which he is (c) excused work or training on medical grounds on the advice of a rst admitted, one letter.

medical ofcer; or (2) Writing paper, envelopes and other materials required to enable (d) excused work by the ofcer in charge or engaged in some other prisoners to write letters shall be provided by themselves, and retained by the activity authorized by or under these Regulations.

staff, and a prisoner shall be allowed to use his writing materials during the hours permitted by the ofcer in charge for leisure.

Days of rest.

15.

Sunday shall be a day of rest and no prisoner shall be engaged on (3) A prisoner may receive- work or training except work which is necessary for the cleaning of the service prison: (a) any number of letters; Provided that a prisoner may be required to carry out any type of work (b) books, newspapers, journals and periodicals at the discretion of 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.

the ofcer in charge.

Work in association.

16.

(1) Whenever possible a prisoner shall work in association with other 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 prisoners unless it appears to the ofcer in charge that it is- is not authorized to receive shall be retained in safe keeping by the ofcer in (a) not in the interest of such prisoner; charge and handed to the prisoner on nal release: (b) not in the interest of good order and discipline.

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 (2) When a prisoner is not permitted to work in association with other otherwise.

prisoners, the ofcer in charge may arrange for that prisoner to work in a room or place apart from other prisoners.

(2) A prisoner may with the consent and at the discretion of the ofcer in charge receive toilet requirements and other articles.

(3) In deciding whether a prisoner shall be required to work apart from 22.

(1) The ofcer in charge or any ofcer deputed by him may scrutinize Censorship.

other prisoners under the provisions of paragraph (1), and whether such a letters written by or addressed to a prisoner.

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 (2) The ofcer in charge may withhold from a prisoner the whole or any a medical ofcer.

part of a letter addressed to him, but he shall communicate to him any part of 17.

A prisoner shall not be employed directly or indirectly for the private the letter which is unobjectionable.

No work for private benet or advantage of any person, nor in any way contrary to these Regulations (3) The ofcer in charge may withhold a letter written by a prisoner, benet.

or the order of the ofcer in charge.

but in such case he shall give the prisoner an opportunity of writing in its Rations.

18.

(1) The food provided for prisoners shall be the same as that provided place another letter which does not contain the material to which the ofcer for soldiers in the unit except when the prisoner is undergoing restricted diet in charge objects.

as a punishment.

(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 (2) The ofcer in charge shall ensure that every prisoner receives the prisoner to his rights as to complaints.

rations to which he is entitled.

Tobacco.

19.

A prisoner shall not be permitted to smoke nor to retain in his (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.

possession any tobacco, cigarettes, matches or lighter, or any naked light for 166 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 167 [Subsidiary] instructions in connexion with the petition or appeal.

[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 (3) For the purpose of a petition or appeal a prisoner may receive a visit places to be determined by that ofcer.

from a medical practitioner selected by him or on his behalf by relatives or (2) Any visit authorized under this regulation shall be within the sight friends.

and hearing of a member of the staff not below the rank of sergeant.

28.

(1) On admission to a service prison, a prisoner shall be searched in Searching persons Visit by legal 24.

(1) The ofcer in charge shall provide reasonable facilities for a accordance with regulation 29.

under sentence.

advisers.

prisoner to be visited by his legal adviser.

(2) The ofcer in charge may order that a prisoner shall be searched at (2) Any visit authorized under this rule shall be within the sight of the any time while he is serving his sentence.

ofcer in charge or a member of the staff.

29.

The following conditions shall be observed in relation to the search Condition of search.

Medical examination.

25.

The ofcer in charge shall ensure that every prisoner who is- of a prisoner- (a) in close connement; or (a) every search shall take place in the presence of at least two members of the staff; (b) subject to any form of mechanical restraint; or (b) no other prisoner shall be present at the search.

(c) undergoing restricted diet as a punishment; or 30.

The ofcer in charge of the service prison from which a prisoner Duration of sentence (d) sick or complains of sickness, 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.

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 31.

If a prisoner dies the ofcer in charge shall- Deaths.

by the ofcer in charge.

(a) immediately report the matter to the civil police in whose area the Appeals.

26.

The manner in which a prisoner who has appealed, or desires to service prison is situated; and appeal, against his conviction by court martial may be taken to, kept in custody (b) in the event of an inquiry into the death of such prisoner not being Supra.

at and brought back from any place where he is entitled to be present for the held by any civil authority, arrange for a board of inquiry to be purposes of Part IX of the Act, or any place to which the High Court or a judge convened in accordance with the Armed Forces (Board of Inquiry) may order him to be taken for the purposes of any proceedings of the Court, Regulations.

shall be as follows- (a) he may be taken to, kept in custody at or brought back from any 32.

A prisoner shall be guilty of an offence if he- Offence against such place in service or civil custody; (a) treats with disrespect any member of the staff of a service prison, discipline.

(b) he may be kept in such custody at any such place in any manner any visitor thereto, or any person employed therein; ordered by the High Court or a judge thereof: (b) is idle, careless or negligent; Provided that he shall not be kept in a civil prison or in a police station (c) behaves irreverently at divine service; for periods exceeding seven days at any one time.

Rights as to appeal to (d) uses any abusive, insolent, threatening or any other improper 27.

(1) The ofcer in charge shall bring to the notice of prisoners their language; be notied.

rights to petition or appeal.

(e) is indecent in any act or gesture; (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 (f) communicates with any other prisoner without authority; 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 (g) leaves his room or place of work or other appointed place without to send by post, to his legal adviser condential written communications as permission; 168 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 169 [Subsidiary] (h) commits any nuisance; (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 (i) has in his room or possession any unauthorized articles, or attempts interval has elapsed equal to the period of restricted diet already undergone.

to obtain such articles; (4) Every prisoner undergoing restricted diet shall be visited every day (j) gives to any person any unauthorized article; by the commanding ofcer in charge, or by an ofcer appointed by the ofcer in charge, and by a medical ofcer.

(k) makes repeated and groundless complaints; 36.

(1) No prisoner shall be placed in close connement unless he has Close connement.

(l) fails to observe or comply with any conditions as to temporary been certied by a medical ofcer as t to undergo such punishment.

release; (2) A prisoner in close connement shall not be permitted to attend divine (m) attempts to commit any of the offences referred to in this service and, except on the recommendation of a medical ofcer, shall not be regulation.

permitted any exercise.

Procedure for dealing 33.

A prisoner who commits an offence under the Act or under these (3) A prisoner in close connement shall not be deprived of his room with offences.

Regulations shall be dealt with- furniture, books or periodicals, nor be subjected to any form of discipline which has not been ordered in accordance with these Regulations.

(a) by the ofcer in charge; or (4) A prisoner in close connement shall be visited at least once every day (b) in accordance with the provisions of section 82 of the Act.

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.

Punishment which 34.

(1) An ofcer in charge may award any of the punishments set out 37.

(1) In this regulation- may be awarded by in paragraph (2) to a prisoner who has been found by him to have committed Mechanical restraint.

an ofcer in charge.

any offence under these Regulations.

handcuffs means handcuffs of gure-of-eight, swivel or curb-chain (2) The punishments referred to in paragraph (1) are- type, not exceeding, for the pair, seven hundred grams in weight; (a) close connement for a period not exceeding fourteen consecutive restraint order means an order issued under paragraph (4).

days in any one period; (2) Save as provided by regulation 39, no prisoner shall be placed in (b) restricted diet for a period not exceeding three consecutive days handcuffs or any other form of mechanical restraint, or be in any manner bound, in any one period; fettered or otherwise restricted in his movements, as a punishment.

(c) forfeiture of remission of sentence for a period not exceeding (3) An ofcer in charge may order the use of handcuffs for the purpose eleven days; of ensuring the safe custody of a prisoner during his removal from one place to another.

(d) deprivation of library books and periodicals; (4) If it appears to an ofcer in charge that the use of handcuffs is (e) admonishment; 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 (f) extra military instruction not exceeding three periods of forty-ve written order that such prisoner be placed in handcuffs.

minutes each.

(5) A restraint order shall- Restricted diet.

35.

(1) Restricted diet shall consist of one-half ration per day with (a) specify the date and hour when the handcuffs are to be applied; unrestricted water.

(2) On the days on which a prisoner is undergoing restricted diet he shall (b) specify the period, not exceeding forty-eight hours, during which the prisoner is to remain in handcuffs; 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.

(c) state whether the handcuffs are to be applied with the hands of the 170 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 171 [Subsidiary] prisoner placed to the front or to the rear of the body.

[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.

(6) Immediately upon making a restraint order the ofcer in charge ofcer in charge it is practical for him so to do, having regard to his behaviour shall give a copy thereof to a medical ofcer who shall thereupon examine and to the location of the place of worship in relation to the location of the the prisoner and inform the ofcer in charge if, in his opinion, there is any service prison.

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 42.

An ofcer in charge shall provide educational training for prisoners Educational training.

shall revoke or modify the restraint order in accordance with the opinion of whenever practicable.

the medical ofcer.

(7) Where a restraint order states that handcuffs are to be applied with 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.

the hands of the prisoner to the rear of the body, they shall be moved to the front during meals and for sleeping.

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 (8) Whenever handcuffs are applied to or removed from a prisoner, an be sold or used in the service prison.

ofcer or senior member of the staff shall be present and a record shall be made of every person present at that time.

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.

Canvas suit.

38.

(1) Where a prisoner destroys or attempts to destroy his clothing, place it anywhere outside the service prison with intent that it shall come into or refuses to wear uniform, the ofcer in charge may order that the prisoner the possession of a prisoner.

shall wear a suit, consisting of frock and trousers made of canvas sail-cloth, not exceeding ve and one-half kilograms in weight.

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 (2) The ofcer in charge shall record every order made under this person shall remain in a service prison after being requested to leave by the prison.

regulation, the date from which the prisoner is required to wear a canvas suit and the date on which he authorizes its removal.

ofcer in charge or any person acting under his authority.

(2) The ofcer in charge may grant permission to any person to enter a 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 service prison subject to any condition, which he may consider necessary.

as are recognized for the use of the religious denomination of the prisoner.

(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 (2) An ofcer in charge shall provide a book in which chaplains may of paragraphs (1) and (2).

record any matters which they wish to bring to his notice.

46.

Any person who, not being a person subject to the Act, contravenes Penalty.

(3) An ofcer in charge may, at his discretion, afford facilities to chaplains any of the provisions of regulation 43, 44 or 45 shall be guilty of an offence and to have access to prisoners for the purpose of giving them religious instruction, at times approved by him.

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.

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 FIRST SCHEDULE (r.

4 (2)) 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 order for the CommIttal of a member of the armed forCes there is no chaplain of the same denomination as the prisoner the ofcer in charge to a CIVIl prIson on an aWard of ImprIsonment may arrange for the prisoner to be visited by a minister of his own denomination by hIs CommandIng offICer 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 To the Ofcer in Charge of.(a).

Whereas No.

.

Rank.

soon as possible after his rst admission to the service prison.

Name.

of the.Unit was on the.

day of .,19., (3) In appropriate cases a chaplain or minister shall ofciate at the burial awarded imprisonment for a period of .days, by his of a prisoner who dies while under sentence.

commanding ofcer for the offence(s) of.

172 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 173 [Subsidiary].

(a) Insert the name and address of the prison.

[Subsidiary] .(b).

(b) Here set out the statement (not the particulars) of the offence and Now, therefore, in pursuance of the Armed Forces Act I hereby order you the relevant sections of the Armed Forces Act.

Where there is more to receive the said person into your custody and to retain him to undergo his than one sentence according to law and for so doing this shall be your warrant.

offence the statement of each must be set out.

(c) Where the original sentence was death and has been commuted to Signed at.this.

day of ., 19.

imprisonment, for the words in brackets substitute the words suffer (Signature).(c).

death which sentence has duly been conrmed in accordance with the provisions of the Armed Forces Act but has been commuted Rank and appointment.

into imprisonment for a term of.

_.

(a) Insert the name and address of the prison.

(d) If any part of the sentence has been remitted on conrmation (b) Set out the statement (not the particulars) of the offence and the insert with a remission of.

relevant sections of the Armed Forces Act.

Where there is more.

than one offence, the statement of each must be set out.

(e) The committal form must be signed by the commanding ofcer (c) This form must be signed by the commanding ofcer of the person for the time being of the person concerned.

concerned.

THIRD SCHEDULE (r.

5) SECOND SCHEDULE (r.

4 (2)) order for the release op a person undergoIng sentenCe of order for the CommIttal of a member of the armed forCes to a ImprIsonment under the armed forCes aCt CIVIl prIson on sentenCe of ImprIsonment by a Court martIal To the Ofcer in Charge of.

(a).

To the Ofcer in Charge of.

(a).

Where No.

.

Rank.

(b).

Whereas No.

.

Rank.

Name.

of the.

(b).

was convicted by a Court Martial held at.

Unit is now in your custody undergoing a sentence of imprisonment of the offence(s) of.

awarded by his commanding ofcer.

_ (b).

.

passed by court martial.

(b) and, by a sentence passed on the.

Now, therefore, in pursuance of the powers conferred by Part VIII of day of ., 19., sentenced to imprisonment for a the Armed Forces Act, I do hereby order you to release the said person from term of.

(c) custody.

commencing on the said day, which sentence has been duly conrmed in accordance with the provisions of the Armed Forces Act.

Signed at.

this.

day of ., 19.

.

(d).

(Signature).

(c).

Now, therefore, in pursuance of the Armed Forces Act I hereby order you Rank and appointment.

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.

(a) Insert the name and address of the civil prison or service prison.

Signed at.

this.

day of ., 19.

(b) Delete as necessary.

(Signature).

(c).

(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 Rank and appointment.

_ prison this order must be signed by the ofcer who awarded the original award of imprisonment.

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199 175 [Subsidiary] [Subsidiary] Rules under section 228 Rule 19Investigations of and summary dealing with charges against THE ARMED FORCES RULES OF PROCEDURE ofcers, servicemen and civilians.

20Alternative courses open to appropriate superior authority.

L.N.

249/1969, L.N.

305/ 1986.

Arrangement of Rules ConVenIng of Courts martIal prelImInary 21Duties of convening ofcer when convening court martial.

Rule 22Appointment of presiding ofcer and members.

1Citation.

23Ofcers under instruction.

2Denitions.

24Preparation of defence.

arrest and aVoIdanCe of delay assembly and sWearIng of Court 3Avoidance of delay by commanding ofcer in investigating 25Preliminary matters to be considered by court and beginning of charges.

trial.

4Report to higher authority where no investigation commenced 26Objections to court.

within forty-eight hours of arrest.

27Swearing of court.

5Eight-day delay report.

28Swearing of judge advocate.

6Arrest not to exceed 72 days without permission from higher 29Swearing of ofcers under instruction.

authority.

30Appointment and swearing of, and objections to, interpreters and shorthand writers.

InVestIgatIon of Charges by CommandIng offICer 31No right of objection to judge advocate, prosecutor or ofcer under instruction.

7Methods of investigating charge.

32Order of trial.

8Hearing of evidence by commanding ofcer.

33Oaths and solemn afrmations.

9Abstract of evidence.

arraIgnment of aCCused 10Investigation before summary dealing by commanding ofcer.

11Dismissal of charge by commanding ofcer.

34Arraignment of accused.

12 Reference of charge to higher authority.

35Plea to jurisdiction of court.

preparatIon of Charge-sheets and framIng of Charges 36Objection to charge.

37Plea in bar of trial.

13Charge-sheets.

38Application by accused at joint trial to be tried separately.

14Charges.

39Application by accused to have charges tried separately.

15Joint charges.

40Plea to charge.

16Construction of charge-sheets and charges.

41Acceptance of plea of guilty.

42Pleas on alternative charges.

aCtIon by hIgher authorIty on reCeIpt of Charge proCedure after reCordIng fIndIng of guIlty 17Action by higher authority on receipt of charge.

43Order of trial where pleas of guilty and not guilty.

InVestIgatIon of, and summary dealIngs WIth, Charges by 44Procedure on nding of guilty after plea of guilty.

approprIate superIor authorIty Change of plea 18Documents to be given to ofcers, servicemen and civilians dealt 45change of plea.

with summarily.

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199 177 [Subsidiary] proCedure on pleas of not guIlty Rule [Subsidiary] 69Accuseds record and plea in mitigation.

Rule 70Request by accused for other offences to be taken into 46Application for adjournment of trial.

consideration.

47Case for prosecution.

delIberatIon on sentenCe 48Calling of witnesses whose evidence not contained in abstract of evidence.

71Persons entitled to be present during deliberation on sentence.

49Notice to accused that witness will not be called by prosecutor.

72Sentence and recommendation to mercy.

CallIng and eXamInatIon of WItnesses 73Postponement of deliberation on sentence.

50Swearing of witnesses.

announCement of sentenCe and ConClusIon of trIal 51Exclusion of witnesses from court.

74Announcement of sentence and conclusion of trial.

52Examination of witnesses.

53Examination of witnesses by court.

general dutIes of presIdIng offICer, proseCutor and 54Reading back of evidence to witnesses.

defendIng offICer or Counsel 55Calling of witnesses by court and recalling of witnesses.

56Statutory declarations.

75General duties of presiding ofcer.

submIssIon of no Case to ansWer and stoppIng of Case 76General duties of prosecutor and defending ofcer of counsel.

77Counsel.

57Submission of no case to answer and power of court to stop a poWers and dutIes of Judge adVoCate case.

Case for the defenCe 78General duties of judge advocate.

58Explanation to accused of rights when making defence.

79Judge advocate sitting alone.

59Evidence for defence.

WIthdraWal and amendment of Charge-sheets and Charges 60Evidence in rebuttal.

80Withdrawal of charge-sheets and charges.

61Closing addresses.

81Amendment of charge-sheets and charges by court.

summIng-up by Judge adVoCate 82Amendment of charges by convening ofcer.

62Summing-up by judge advocate.

sIttIngs and adJournment of Court delIberatIon on, and announCement of, fIndIng on Charge 83Sittings of court.

84Adjournment.

63Deliberation on nding on charge.

85View by court.

64Expression of opinions on, and form of, nding.

86Absence of presiding ofcer, members or judge advocate.

65Announcement of nding.

InsanIty proCedure after announCement of fIndIng 87Insanity.

66Completion of procedure on plea of guilty before deliberation on InterVIeWIng and attendanCe of WItnesses sentence.

67Trial of charges on other charge-sheets before deliberation on 88Interviewing of witnesses.

sentence.

89Procuring attendance of witnesses.

68Release of accused.

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199 179 [Subsidiary] [Subsidiary] Rule reCord of proCeedIngs prelImInary 90Record of proceedings.

1.

These Rules may be cited as the Armed Forces Rules of Procedure.

Citation.

91Exhibits.

2.

In these Rules- 92Custody and inspection of record of proceedings during trial.

Denition.

ConfIrmatIon, reVIsIon and promulgatIon convening a fresh court includes dissolving the existing court; 93Conrmation and promulgation.

member, in relation to a court martial, does not include the presiding 94Revision.

ofcer; loss of proCeedIngs 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.

95Loss of original record of proceedings before conrmation.

Code, or an attempt to commit such an offence, and shall include any offence 96loss of original record of proceedings after conrmation.

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 length of Custody of reCord of proCeedIngs, and Cost of kind under section 68 of the Act; CopIes of proCeedIngs special nding, in relation to 97Custody of record of proceedings after conrmation.

(a) section 96 of the Act, means a nding which a court martial may 98Cost of copies of record of proceedings.

make in accordance with that section; petItIons (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 99Petitions.

or omission charged but was insane when he did the act or made the omission; mIsCellaneous (c) rule 64 (3), means a nding that the accused is guilty of the charge 100Notice requiring oral evidence in place of statutory declaration.

subject to the exception or variation specied in the ndings.

101Exceptions from Rules on account of the exigencies of service.

arrest and aVoIdanCe of delay 102Exceptions from Rules in interests of security.

103Procedure incase of illiteracy or incapacity.

3.

When a person is detained by service authority in arrest his commanding Avoidance of delay by a commanding 104Deviations from the forms in the Schedules.

ofcer shall, unless it is impracticable, within forty-eight hours of becoming ofcer in 105Cases not covered by Rules.

aware that he is so detained have such person brought before him, inform him investigating charges.

of the charge against him and begin to investigate it.

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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199 181 [Subsidiary] (a) each prosecution witness shall give his evidence orally in the [Subsidiary] Arrest not to exceed 6.

An accused shall not be held in arrest for more than seventy-two 72 days without presence of the accused, or the commanding ofcer shall read to permission from consecutive days without a court martial being convened for his trial, unless be accused a written statement made by the witness: higher authority.

the ofcer who would be responsible for convening the court martial directs in writing that he shall not be released from arrest; and when giving such a provided that a written statement of a prosecution witness shall not direction the ofcer shall state his reasons for giving it.

be used if the accused requires that the witness shall give his evidence InVestIgatIon of Charges by CommandIng offICer orally; Methods of 7.

(1) Subject to paragraphs (2) and (3), when a commanding ofcer (b) the accused shall be allowed to cross-examine any prosecution investigating charge.

witness; investigates a charge, he shall rst read and, if necessary, explain the charge to the accused and shall then (c) the accused may, on his own behalf, give evidence on oath or may (a) hear the evidence himself in accordance with rule 8; or make a statement without being sworn; (b) cause the evidence to be reduced to writing in the form of an (d) the accused may call witnesses in his defence, who shall give their evidence orally and in his presence; abstract of evidence made in accordance with rule 9, and read and consider it: (e) the evidence shall not be given on oath unless the commanding ofcer so directs or the accused so demands; Provided that (i) notwithstanding that he has heard all or part of the evidence (f) if the evidence is given on oath the commanding ofcer shall, subject to the accuseds right to make a statement without being himself, he may cause the evidence to be reduced to writing; sworn, administer the oath to each witness and to any interpreter (ii) after the evidence has been reduced to writing and he has in accordance with rule 33; considered it, he may himself hear evidence in accordance (g) when a commanding ofcer awards the punishment of forfeiture with rule 8; and of seniority of rank that award shall be in the appropriate form set out in the Fifth Schedule.

(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 9.

(1) An abstract of evidence shall be in Form II in the First Schedule Abstract of evidence.

by virtue of section 9 of the Act, or remands a serviceman for and shall be made in the following way trial by court martial, he shall cause the evidence to be reduced to writing.

(a) it shall be made by the commanding ofcer or by another ofcer (2) Where the evidence taken in accordance with paragraph (1) discloses on the direction of the commanding ofcer; an offence other than the offence of which is the subject of the investigation, (b) the accused shall not be present while the abstract of evidence is a new charge alleging that offence may be preferred against the accused in being made; 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 (c) it shall consist of signed statements by such witnesses as are investigation of the added or substituted charge.

necessary to prove the 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 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 authority can deal summarily, it shall not be necessary for his commanding included instead of a signed statement; 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 (d) an oath shall not be administered to a witness making a statement 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).

for inclusion in an abstract of evidence, but use may be made, where necessary, of sworn statements which are already in existence.

Hearing of evidence 8.

When a commanding ofcer investigates a charge by hearing the (2) When an abstract of evidence has been made in accordance with by commanding evidence himself- paragraph (1) a copy of it shall be handed to the accused and he shall then be ofcer.

cautioned in the following terms 182 CAP.

199 Armed Forces [Rev.

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199 183 [Subsidiary] This is a copy of the abstract of evidence in your case.

You are not [Subsidiary] obliged to say anything with regard to it unless you wish to do so, but you should (e) a recommendation as to how the charge should be proceeded read it and when you have read it, if you wish to say anything, what you say with.

will be taken down in writing and may be given in evidence.

preparatIon of Charge-sheets and framIng of Charges (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.

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 (4) The accuseds statement, and a certicate in Form III set out in the founded on the same facts or form or are part of a series of offences of the same First Schedule by the person who recorded the statement stating that the accused or similar character: was duly cautioned in accordance with this rule shall be attached to the abstract of evidence and shall thereafter form part of it.

Provided that charges under paragraph (a) of section 31 (1), paragraph Investigation before 10.

Before a commanding ofcer deals summarily with a charge after (a) of section 32, paragraphs (a) and (b) of section 42 (where the charge is summary dealing by the evidence has been reduced to writing- 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 commanding ofcer.

(a) any prosecution witness who has not given his evidence orally other charges in that charge-sheet are not founded on the same facts and do not shall do so if the accused requires it; and form or are not part of a series of offences of the same or similar character.

(b) the commanding ofcer shall give the accused a further opportunity (2) Every charge-sheet shall in its layout follow the appropriate to give evidence on oath or to make a statement without being sworn illustration given in Form III in the Second Schedule.

and to call witnesses in his defence.

(3) The commencement of each charge-sheet shall be in the appropriate Dismissal of charge 11.

(1) A commanding ofcer may dismiss a charge at any time during paragraph of Form I set out in the Second Schedule, and shall state the number, by commanding his investigation if he is of the opinion that it ought not to be proceeded with rank, name and unit of the accused and show by the description of the accused ofcer.

further.

or directly by an express averment that he is subject to the Act or otherwise liable to trial by court martial.

(2) If in the course of dealing summarily with a charge a commanding 14.

(1) Each charge shall state one offence only.

Charges.

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.

(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 (3) After a commanding ofcer has referred a charge to higher authority commencing with the most serious.

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.

(3) Each charge shall consist of two parts, namely Reference of charge 12.

When a commanding ofcer submits to higher authority a charge (a) the statement of the offence; and to higher authority.

against an ofcer, or against a civilian to whom Parts IV to X of the Act apply (b) the particulars of the act, neglect or omission constituting the by virtue of section 9 of the Act, or has remanded a serviceman for trial by court offence.

martial, he shall send to higher authority- (a) a copy of the charge-sheet on which the accused is held; (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 (b) a draft charge-sheet containing the charges upon which the offence in such words as sufciently describe that offence.

commanding ofcer considers that the accused should be dealt with summarily or tried by court martial; (5) The particulars shall state (c) the abstract of evidence; (a) such circumstances respecting the alleged offence as will enable the accused to know every act, neglect or omission which it is intended (d) a statement of the character and service record of the accused; to prove against him as constituting the offence; and 184 CAP.

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199 185 [Subsidiary] (b) when the offence charged is one which can be committed either [Subsidiary] in circumstances involving a higher degree of punishment or in (a) he shall rst read the charge to the accused; with charges against ofcers, servicemen circumstances involving a less degree of punishment, facts which and civilians.

it is intended to prove as rendering the accused liable to the higher (b) the witnesses against the accused need not give their evidence orally degree of punishment if convicted; and if the accused has so agreed in writing, but if the accused has not (c) any additional facts which it is intended to prove as rendering the so agreed they shall give their evidence orally in his presence and accused liable to the punishment of stoppages if convicted.

he shall be allowed to cross-examine them; Joint charges.

15.

(1) Any number of accused may be charged in the same charge-sheet (c) if the witnesses against the accused do not give their evidence with offences alleged to have been committed by them separately if the acts orally the appropriate superior authority shall read the abstract of on which the charges are founded are so connected that it is in the interests of evidence to the accused if he so requires; justice that they be tried together.

(d) the accused in his defence may adduce evidence as to the facts of (2) Any number of accused may be charged jointly in one charge for the case and as to his character and in mitigation of punishment; an offence committed by them jointly; and where so charged any one or more (e) the accused himself may give evidence on oath, make a statement accused may at the same time be charged in the same charge-sheet with any without being sworn or hand in a written statement; 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 (f) each witness who gives evidence shall give it on oath and the oath been tried separately, have been included under rule 13 (1) in the same charge- shall be administered by the appropriate superior authority to each sheet as the other charges against him.

witness and to any interpreter in accordance with rule 33; Construction of 16.

In the construction of a charge-sheet or charge there shall be (g) when an appropriate superior authority awards the punishment of charge-sheets and presumed in favour of supporting it every proposition which may reasonably forfeiture of seniority of rank that award shall be in the appropriate charges.

be presumed to be impliedly included, though not expressed therein, and the form set out in the Fifth Schedule; statement of the offence and the particulars of the offence shall be read and construed together.

(h) a record shall be made of the proceedings in accordance with the aCtIon by hIgher authorIty on reCeIpt of Charge form set out in the Third Schedule.

Action by higher 17.

When a higher authority receives a charge against an accused he shall, 20.

An appropriate superior authority shall, if an accused elects to be Alternative courses authority on receipt tried by court martial or the appropriate superior authority in the course of open to appropriate if he does not refer it back to the commanding ofcer or deal summarily with it of charge.

investigating, or whilst dealing summarily with, a charge determines that it superior authority.

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 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 summarily with it or to the ofcer who would be responsible for convening the with rule 17.

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 ConVenIng of Courts martIal the documents mentioned in rule 12 together with his own recommendation as to how the case should be proceeded with.

21.

When an ofcer convenes a court martial he shall- Duties of convening InVestIgatIon of, and summary dealIng WIth, Charges by an (a) issue a convening order in Form I in the Fourth Schedule; ofcer when approprIate superIor authorIty convening court (b) direct upon what charges the accused is to be tried and ensure that martial.

Documents to be 18.

An appropriate superior authority shall ensure before investigating the accused has been remanded for trial by court martial upon those charges either by his commanding ofcer or by the appropriate and dealing summarily with a charge that the accused is given, not less than given to ofcers, superior authority who has investigated them; servicemen and twenty-four hours before the charge is so investigated and dealt with, a copy civilians dealt with of the charge-sheet containing the charge upon which he will be so dealt with (c) if he is of the opinion that charges should be put in separate charge- summarily.

and a copy of the abstract of evidence.

19.

When an appropriate superior authority investigates and deals sheets, so direct and direct the order in which they are to be tried; Investigations of and summarily with a charge- (d) direct, if there is more than one accused, whether the accused are summary dealing 186 CAP.

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199 187 [Subsidiary] to be tired separately or jointly; (a) appoint the presiding ofcer of a court martial by name; [Subsidiary] presiding ofcer and (e) appoint the presiding ofcer and members of the court and any (b) appoint the members of a court martial by name; and members.

waiting members in accordance with rule 22; (f) take the necessary steps to procure the appointment of a judge (c) appoint such waiting members as he thinks expedient by name.

advocate; Ofcers under 23.

(1) Subject to rule 79, any ofcer subject to the Act may, by direction instruction.

(g) appoint an ofcer or counsel assisted by an ofcer to prosecute or 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.

detail a commanding ofcer to appoint an ofcer to prosecute: Provided that the convening ofcer may appoint two such ofcers to (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.

prosecute if he thinks t; (h) appoint the date, time and place for the trial; 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 (i) send to the presiding ofcer the charge-sheet, the convening ofcer or counsel and with his witnesses.

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 (2) A defending ofcer or counsel shall be appointed by the commanding expurgated; 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 (j) send to each member of the court and to each waiting member a to be made.

copy of the charge-sheet; (3) If the prosecution is to be undertaken by a legally qualied ofcer or (k) send to the prosecutor copies of the charge-sheet and convening 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 order together with the original abstract of evidence and, where an qualied ofcer or counsel to defend him.

expurgated copy thereof has been sent to the presiding ofcer, an unexpurgated copy thereof showing the passages which have been (4) As soon as practicable after an accused has been remanded for trial expurgated in that copy; by court martial, and in any case not less than twenty-four hours before his (l) send to the judge advocate copies of the charge-sheet and convening trial, he shall be given- order and an unexpurgated copy of the abstract of evidence showing, (a) a copy of the charge-sheet; where an expurgated copy has been sent to the presiding ofcer, the passages which have been expurgated in that copy; (b) an unexpurgated copy of the abstract of evidence showing the (m) ensure that the accused is given a proper opportunity to prepare passages (if any) which have been expurgated in the copy sent to his defence in accordance with rule 24; and the presiding ofcer; (n) take steps in accordance with rule 89 to procure the attendance at (c) notice of any additional evidence which the prosecution intends the court martial of all witnesses to be called for the prosecution to adduce; and and all witnesses whose attendance the accused has reasonably (d) a list of the ranks, names and units of the presiding ofcer and requested in accordance with rule 24: members who are to form the court and of any waiting members.

Provided that the convening ofcer may require the accused to (5) When an accused is given a copy of the charge-sheet and of the defray or to undertake to defray, as the convening ofcer thinks t, the abstract of evidence in accordance with this rule he shall- 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 (a) if necessary, have the charge explained to him; and may be, such cost, the convening ofcer shall not be obliged to take any further steps to procure the attendance of that witness.

(b) be informed that, upon his making a written request to his commanding ofcer not less than twenty-four hours before his Appointment of 22.

The convening ofcer shall- 188 CAP.

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199 189 [Subsidiary] trial requiring the attendance at his trial of any witness (other [Subsidiary] than a witness for the prosecution) whom he desires to call in his (g) that each charge is on its face correct in law and framed in accordance with these Rules.

defence (such witness to be named by him), reasonable steps will be taken at the possible expense of the accused in accordance with these (2) Where a vacancy occurs through a member of the court being Rules to procure the attendance of any such witness at his trial.

disqualied under the Act or being absent when the court assembles the presiding (6) When an accused is served with a copy of a statutory declaration ofcer may appoint a duly qualied waiting member to ll that vacancy.

which the prosecution proposes to hand to the court in accordance with section (3) The presiding ofcer may, if the interests of justice so require, 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 substitute a duly qualied waiting member for a member appointed by the statutory declaration.

convening ofcer.

(7) When it is intended to try two or more accused jointly notice of (4) If the court is not satised on any of the matters mentioned in this fact shall be given to each such accused when he is given a copy of the paragraph (1), and is not competent to rectify the matter itself under the Act charge-sheet.

or these Rules, it shall, before commencing the trial, report to the convening ofcer thereon.

(8) An accused may, before trial, by written notice to the convening (5) When the court has complied with this rule and is ready to proceed 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 with the trial the presiding ofcer shall open the court and the trial shall begin.

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.

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 (9) When a charge-sheet contains more than one charge the accused may, shall be given an opportunity to object to any of those ofcers in accordance before trial, by written notice to the convening ofcer claim to be tried separately with section 90 of the Act.

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 (2) When a court is convened to try more than one accused, whether the convening ofcer shall, if he is of the opinion that the interests of justice so separately or jointly, each accused shall be given an opportunity to object to require, direct that the accused shall be tried separately on that charge.

any ofcer on the court in accordance with the preceding paragraph and shall assembly and sWearIng of Court be asked separately whether he has any such objection.

Preliminary matters 25.

(1) Upon a court martial assembling the court shall, before beginning (3) An accused shall state the names of all the ofcers to whom he objects before any objection is disposed of.

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 (4) If more than one ofcer is objected to the objection to each ofcer these Rules; 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 (b) that the court consists of not less than the legal minimum of case the objection to him shall be disposed of before the objection to any other ofcer.

ofcers; (c) that the presiding ofcer and members are of the required rank (5) An accused may make a statement and call any person to make a and length of service; statement in support of his objection.

(d) that the presiding ofcer and members have been duly appointed (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 and are not disqualied under the Act; rebuttal thereof.

(e) that the judge advocate has been duly appointed; (7) An objection to an ofcer shall be considered in closed court by all (f) that the accused appears from the charge-sheet to be subject to the other ofcers on the court including any ofcer who has been appointed service law or otherwise liable to trial by court marital and to be by the presiding ofcer in accordance with paragraph (9) in place of an ofcer subject to the jurisdiction of the court; and who has retired.

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199 191 [Subsidiary] the accused shall be given an opportunity to object to him in the same manner [Subsidiary] (8) When an objection to an ofcer is allowed that ofcer shall forthwith retire and take no further part in the proceedings.

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.

(9) When an ofcer objected to (other than the presiding ofcer) retires and there is a duly qualied waiting member in attendance the presiding 31.

The accused shall have no right to object to a judge advocate, a No right of objection ofcer shall immediately appoint him to take the place of the ofcer who has to judge advocate, retired.

prosecutor or an ofcer under instruction.

prosecutor or ofcer (10) The court shall satisfy themselves that a waiting member who takes under instruction.

32.

(1) When a court has been convened to try two or more accused the place of a member of the court is of the required rank and not disqualied Order of trial.

under the Act and shall give the accused an opportunity to object to him and separately and have been sworn in accordance with rule 27 (3), the court shall shall deal with any such objection in accordance with this rule.

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.

(11) If an objection to the presiding ofcer is allowed the court shall (2) When a court has been convened to try an accused on charges which report to the convening ofcer without proceeding further with the trial.

are included in more than one charge-sheet, the court shall take the charge-sheets (12) If as a result of the allowance of an objection to a member there in the order indicated by the convening ofcer or, where he has given no such indication, in such order as they think t.

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 33.

(1) An oath which is required to be administered under these Rules Oaths and solemn the trial, and the convening ofcer may either appoint an ofcer as a member shall be administered in the appropriate form and in the manner set out in the afrmations to ll the vacancy or convene a fresh court to try the accused.

Sixth Schedule: Swearing of court.

27.

(1) Immediately after rule 26 has been complied with an oath shall be Provided that the opening words of the oath may be varied to such words administered to the presiding ofcer and each member of the court in accordance and the oath may be administered in such manner as the person taking the with rule 33 and in the presence of the accused.

oath declares to be binding on his conscience in accordance with his religious (2) The oath shall be administered by the judge advocate to the presiding beliefs.

ofcer rst and afterwards to each member of the court.

(2) Subject to rule 27 (2), every oath shall be administered at a court (3) A court may be sworn at one time to try any number of accused then martial by the presiding ofcer, a member of the court or the judge advocate.

present before it, whether they are to be tried jointly or separately.

(3) Where a person is permitted to make a solemn afrmation instead (4) When a court is convened to try two or more accused separately and of swearing an oath the afrmation shall be in the appropriate form set out in the Sixth Schedule.

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 arraIgnment of aCCused with the rule 26 or postpone the trial of that accused and swear the court for the trial of the other accused only.

34.

(1) When the court and judge advocate have been sworn the accused Swearing of judge 28.

After the court has been sworn an oath shall be administered to shall be arraigned.

Arraignment of advocate.

the judge advocate in accordance with rule 33 and in the presence of the accused.

accused.

(2) If there is more than one charge against the accused before the court Swearing of ofcers 29.

After the court and judge advocate have been sworn an oath shall be he shall be required to plead separately to each charge.

under instruction.

administered to any ofcer under instruction in accordance with rule 33 and in (3) If there is more than one charge-sheet against the accused before the the presence of the accused.

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 Appointment and 30.

(1) A competent and impartial person may be appointed at any time has pleaded guilty the court shall comply with paragraphs (1) and (2) of rule 44 swearing of, and to act as an interpreter or shorthand writer at a trial by court martial and before before they arraign him upon the charge in any subsequent charge-sheet.

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.

35.

(1) The accused, before pleading to the charge, may offer a plea to Plea to jurisdiction shorthand writers.

the jurisdiction of the court; and if he does so of court.

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199 193 [Subsidiary] (a) the accused may adduce evidence in support of the plea and the (i) direct the court to try the charge; or [Subsidiary] prosecutor may adduce evidence in answer thereto; and (b) the prosecutor may address the court in answer to the plea and the (ii) where there is another charge or another charge-sheet before accused may reply to the prosecutors address.

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 (2) If the court allows the plea they shall adjourn and report to the such other charge or charge-sheet only; or convening ofcer.

(iii) convene a fresh court to try the accused.

(3) When a court report to the convening ofcer under this rule the Plea in bar of trial.

convening ofcer shall- 37.

(1) An accused, before pleading to a charge, may offer a plea in bar of (a) if he approves the decision of the court to allow the plea, dissolve trial in reliance upon section 142 or section 144 of the Act; and if he does so- the court; (a) the accused may adduce evidence in support of the plea and the (b) if he disapproves the decision of the court- prosecutor may adduce evidence in answer thereto; and (b) the prosecutor may address the court in answer to the plea and the (i) refer the matter back to the court and direct them to proceed accused may reply to the prosecutors address.

with the trial; or (2) If the court allow the plea, they shall adjourn and report to the (ii) convene a fresh court to try the accused.

convening ofcer: Objection to charge.

36.

(1) An accused before pleading to a charge may object to it on the Provided that, if there is another charge or another charge-sheet before grounds that it is not correct in law or is not framed in accordance with these the court, the court may, before adjourning under this rule, proceed with the Rules, and if he does so the prosecutor may address the court in answer to the trial of such other charge or other charge-sheet.

objection and the accused may reply to the prosecutors address.

(3) When a court report to the convening ofcer under this rule the (2) If the court uphold the objection they shall either amend the charge, convening ofcer shall- if permissible under rule 81, or adjourn and report to the convening ofcer: (a) if he approves the decision of the court to allow the plea- 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 (i) dissolve the court; or trial of such other charge or other charge-sheet.

(ii) where there is another charge or another charge-sheet before (3) When a court report to the convening ofcer under this rule, the the court to which the plea does not relate and which the court convening ofcer shall- has not tried, direct the court to proceed with the trial of such (a) if he approves the decision of the court to allow the objection other charge or charge-sheet only; (i) dissolve the court; or (b) if he disapproves the decision of the court to allow the plea- (ii) where there is another charge or another charge-sheet before (i) direct the court to try the charge; or the court to which the objection does not relate and which the (ii) where there is another charge or another charge-sheet before court has not tried, direct the court to proceed with the trial of the court to which the plea does not relate and which the court such other charge or charge-sheet only; or has not tried, direct the court to proceed with the trial of such (iii) amend the charge to which the objection relates if permis- other charge or charge-sheet only; or sible under rule 82, and direct the court to try it as amended; (iii) convene a fresh court to try the accused.

(b) if he disapproves the decision of the court to allow the 38.

(1) Where two or more accused are charged jointly any one of the Application by objection- accused at joint trial accused may, before pleading to the charge, apply to the court to be tried to be tried separately.

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(c) the accused is liable if convicted to be sentenced to death.

[Subsidiary] (2) If the accused makes such an application the prosecutor may address (3) In the case of a plea of guilty under rule 40 (2) a court shall also not the court in answer thereto and the accused may reply to the prosecutors accept the plea unless the convening ofcer concurs and they are satised of address.

the justice of such a course; and the concurrence of the convening ofcer may be signied by the prosecutor.

(3) If the court are of the opinion that the interests of justice so require (4) When a plea of guilty under paragraph (1) or paragraph (2) of rule 40 they shall allow the application and try separately the accused who made it.

is not accepted by the court or the accused either refuses to plead to the charge Application by 39.

(1) Where a charge-sheet contains more than one charge the accused or does not plead to it intelligibly, the court shall enter a plea of not guilty.

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 (5) When a court are satised that they can properly accept a plea of separately.

his defence if he were not tried separately on that charge.

guilty under paragraph (1) or paragraph (2) of rule 40 they shall record a nding of guilty in respect thereof.

(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 42.

(1) When an accused pleads guilty to the rst of two or more Pleas on alternative address.

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 (3) If the court are of the opinion that the interests of justice so require withdraw any alternative charge before the accused is arraigned on it.

they shall allow the application and try the accused separately on the charge to (2) When an accused pleads guilty to one of two or more charges which which it relates as if that charge had been inserted in a separate charge-sheet.

are laid in the alternative other than the rst of such charges the court may Plea to charge.

40.

(1) After any pleas under rules 35 and 37, any objection under rule (a) proceed as if the accused had pleaded not guilty to all the charges; 36, and any application under rules 38 and 39, have been dealt with, the accused or shall be required (subject to paragraph (2)) to plead either guilty or not guilty to each charge on which he is arraigned.

(b) with the concurrence of the convening ofcer (which may be signied by the prosecutor) record a nding of guilty on the charge (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 to which the accused has pleaded guilty and a nding of not guilty the offence in circumstances involving a less degree of punishment or where on any alternative charge which is placed before it on the charge- sheet; and where the court record such ndings the prosecutor shall they could, after hearing the evidence, make a special nding of guilty subject before the accused is arraigned on it withdraw any charge which is to exceptions or variations in accordance with rule 64, the accused may plead alternative to the charge of which the court have found the accused guilty to such other offence or to the offence charged as having been committed guilty and which is placed after it in the charge-sheet.

in circumstances involving a less degree of punishment or to the offence charged subject to such exceptions or variations.

proCedure after reCordIng fIndIng of guIlty Acceptance of plea 41.

(1) If an accused pleads guilty to a charge under paragraph (1) or 43.

(1) After the court have recorded a nding of guilty, if there is no other of guilty.

Order of trial where paragraph (2) of rule 40 the judge advocate shall, before the court decide to charge in the same charge-sheet to which the accused has pleaded not guilty and pleas of guilty and 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 no other accused who has pleaded not guilty to a charge in that charge-sheet, not guilty.

pleads guilty and when an accused pleads not guilty.

they shall proceed with the trial as directed by rule 44.

(2) A court shall not accept a plea of guilty under either paragraph (1) (2) If there is another charge in the charge-sheet to which the accused or paragraph (2) of rule 40 if 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 (a) the court are not satised that the accused understands the nature after they have dealt with such other charge or tried such other accused and of the charge or the effect of his plea; or 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 (b) the presiding ofcer, having regard to all the circumstances, Procedure on nding considers that the accused should plead not guilty; or 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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199 197 [Subsidiary] Provided that, if an expurgated copy of the abstract was sent to the (b) if the accused applies for an adjournment- [Subsidiary] 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 (i) the accused may adduce evidence in support of his application in those parts, and shall not hand the original abstract to the court until the trial and the prosecutor may adduce evidence in answer thereto; is concluded.

and (2) If the abstract of evidence is, in the opinion of the court, inadequate (ii) the prosecutor may address the court in answer to the application or incomplete, the court shall hear and record in accordance with these Rules and the accused may reply to the prosecutors address; sufcient evidence to enable them to determine the sentence.

(3) After paragraphs (1) and (2) have been complied with the accused (c) the court may grant an adjournment if they think the interests of may- justice so require.

Case for prosecution.

(a) adduce evidence of character and in mitigation of punishment; 47.

(1) The prosecutor may if he desires, and shall if required by the court, and make an opening address explaining the charge, where necessary, and the nature and general effect of the evidence which he proposes to adduce.

(b) address the court in mitigation of punishment.

(2) The witnesses for the prosecution shall then be called and give their (4) After paragraph (3) has been complied with the court shall proceed evidence.

as directed in paragraphs (1), (2), (3) and (4) of rule 69.

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 contained in abstract Change of plea with the particulars of the evidence shall, when practicable, be given to the of evidence.

Change of plea.

accused a reasonable time before the evidence is adduced.

45.

(1) An accused who has pleaded not guilty may at any time before (2) If such evidence is adduced without notice or particulars having been the court close to deliberate on their nding withdraw his plea of not guilty and given the court may, if the accused so desires, either adjourn after receiving substitute a plea of guilty (including a plea of guilty under rule 40 (2)), and in the evidence or allow any cross-examination arising out of that evidence to be such case the court shall, if they are satised that they can accept the accuseds postponed, and the court shall inform the accused of his right to apply for such changed plea, record a nding in accordance with the accuseds changed plea an adjournment or postponement.

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 49.

The prosecutor shall not be bound to call all the witnesses against the Notice to accused who has pleaded guilty does not understand the effect of his plea or the nature 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 of the charge, the court shall enter a plea of not guilty and proceed with the the prosecutor does not intend to call such a witness to give evidence he shall prosecutor.

trial accordingly.

either tender him for cross-examination by the accused, or give the accused (3) When a court enter a plea of not guilty in respect of any charge under 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 paragraph (2) they shall, if there was a charge laid in the alternative thereto defence, if he so desires and if the witness is available.

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.

CallIng and eXamInatIon of WItnesses Swearing of proCedure on pleas of not guIlty 50.

Subject to section 91 of the Act, an oath shall be administered to witnesses.

Application for each witness in accordance with rule 33 before he gives evidence and in the adjournment of trial.

46.

After a plea of not guilty to any charge has been entered- presence of the accused.

(a) the court shall ask the accused whether he wishes to apply for an 51.

During a trial a witness other than the prosecutor or accused shall Exclusion of witnesses from court.

adjournment on the grounds that any of these Rules relating to not, except by leave of the court, be in court while not under examination, procedure before trial have not been complied with and that he 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 has been prejudiced thereby, or on the ground that he has not had witness to withdraw during such discussion.

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(1) A witness may be examined by the person calling him, and may be or the accused, as the case may be, without being produced by a witness.

witnesses.

cross-examined by the opposite party to the proceedings, and on the conclusion submIssIon of no Case to ansWer and stoppIng of Case of any such cross-examination may be re-examined by the person who called him on matters arising out of the cross-examination.

57.

(1) At the close of the case for the prosecution the accused may submit Submission of no (2) The person examining a witness shall put his questions to the witness to the court in respect of any charge that the prosecution has failed to establish case to answer and orally and, unless an objection is made by the witness, the court, the judge a prima facie case for him to answer and that he should not be called upon to power of court to advocate, the prosecutor or the accused, the witness shall reply forthwith; and make his defence to that charge; and if the accused makes such a submission stop a case.

if such an objection is made the witness shall not reply until the objection has the prosecutor may address the court in answer thereto and the accused may been disposed of.

reply to the prosecutors address.

(3) The court may allow the cross-examination or re-examination of a that- (2) The court shall not allow the submission unless they are satised witness to be postponed.

Examination of 53.

(1) The presiding ofcer, the judge advocate and, with permission (a) the prosecution has not established a prima facie case on the charge witnesses by court.

of the presiding ofcer, any member of the court, may put questions to a as laid; and witness.

(b) it is not open to them on the evidence adduced to make a special (2) Upon any such questions being answered the prosecutor and the nding under either section 96 of the Act or rule 64 (3).

accused may put to the witness such questions arising from the answer which he has given as seem proper to the court.

(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 Reading back 54.

(1) The record which has been made of the evidence given by a forthwith; if the court disallow the submission they shall proceed with the trial of evidence to witness shall be read back to him before he leaves the court and when this is of the offence as charged.

witnesses.

done he may ask for the record to be corrected or explain the evidence which (4) Irrespective of whether there has been a submission under this rule he has given.

or not, the court may at any time after the close of the hearing of the case for (2) If any such correction is made or explanation given the prosecutor the prosecution, and after hearing the prosecutor, nd the accused not guilty and the accused may put such questions to the witness respecting the correction of a charge, and if they do so they shall announce such nding in open court or explanation as seem proper to the court.

forthwith.

(3) When a shorthand writer is employed it shall not be necessary to Case for the defenCe comply with paragraphs (1) and (2) if, in the opinion of the court and the judge 58.

(1) After the close of the case for the prosecution the presiding ofcer advocate, it is unnecessary to do so: Explanation to or, if he so directs, the judge advocate shall explain to the accused that accused of rights Provided that if any witness so demands paragraph (1) shall be complied (a) if he wishes he may give evidence on oath as a witness or make when making with.

defence.

a statement without being sworn, but that he is not obliged to do Calling of witnesses 55.

(1) The court may, at any time before the judge advocate begins to either; by court and recalling sum up, call a witness or recall a witness if in the opinion of the court it is in the (b) if he gives evidence on oath he will be liable to be cross-examined of witnesses.

interests of justice to do so; and, if the court call a witness or recall a witness by the prosecutor and to be questioned by the court and the judge under this rule, the prosecutor and the accused may put such questions to the witness as seem proper to the court.

advocate, but if he makes a statement without being sworn no one will be entitled to ask him any questions; and (2) The prosecutor and the accused may, at any time before the judge (c) whether he gives evidence or makes a statement or remains silent advocate begins to sum up, recall a witness by leave of the court and the he may call witnesses on his behalf both to the facts of the case prosecutor and the accused may put such questions to the witness as seem and to his character.

proper to the court.

Statutory 56.

A statutory declaration which is admissible in accordance with the (2) After the presiding ofcer or judge advocate has complied with declarations.

provisions of section 93 of the Act shall be handed to the court by the prosecutor 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 200 CAP.

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[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 (2) Save as is otherwise provided in paragraph (4), the court shall record than himself or to hand in a statutory declaration as to the facts of the case he on every charge on which a plea of not guilty has been recorded may make an opening address outlining the case for the defence before the (a) a nding of guilty or a special nding in accordance with section evidence for the defence is given.

96 or section 101 (1) of the Act or paragraph (3) of this rule; or Evidence for defence.

59.

(1) After rule 58 has been complied with the witnesses for the defence (b) a nding of not guilty or of not guilty and honourably acquitted (if any) shall be called and give their evidence.

of the charge.

(2) Rules 50, 51, 52, 53, 54, 55 and 56 shall apply to the witnesses and (3) Where the court are of the opinion as regards any charge that the the evidence for the defence as they apply to the witnesses and the evidence for the prosecution.

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 Evidence in rebuttal.

60.

After the witnesses for the defence have given their evidence the 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 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 guilty, record a nding that the accused is guilty of the charge subject to any prosecution could not properly have mentioned to the court before the accused exception or variation which they shall specify in the nding.

disclosed his defence or which the prosecution could not reasonably have foreseen.

(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 Closing addresses.

61.

(1) After all the evidence has been given the prosecutor and the alternative thereto which is placed before it in the charge-sheet and record no accused may each make a closing address to the court.

nding on any charge alternative thereto which is placed after it in the charge- sheet.

(2) The accused shall be entitled to make his closing address after the Announcement of closing address by the prosecutor.

65.

(1) The nding on each charge shall be announced in open court forthwith.

nding.

(3) Where two or more accused are represented by the same defending (2) Every conviction shall be announced as being subject to ofcer or counsel he may make one closing address only.

conrmation.

summIng-up by Judge adVoCate (3) The nding shall be in the appropriate part of Form VI set out in the Summing-up by 62.

After the closing addresses the judge advocate shall sum up the Fourth Schedule.

judge advocate.

evidence and advise the court on the law relating to the case in open court.

proCedure after announCement of fIndIng delIberatIon on, and announCement of, fIndIng on Charge 66.

After the court have announced their nding on any charge on which Completion of Deliberation on 63.

(1) After the judge advocates summing-up the court shall close to 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 nding on charge.

deliberate on their nding on the charge.

comply with paragraphs (1) and (2) of rule 44 in respect of that charge before of guilty before proceeding further with the trial.

deliberation on (2) While the court are deliberating on their nding on the charge no sentence.

person shall be present except the presiding ofcer and members of the court 67.

Where there is another charge-sheet against the accused before the and any ofcer under instruction.

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 (3) If the court, while deliberating on their nding on the charge, require before deliberation further advice from the judge advocate the court shall suspend their deliberation 66 in respect of each charge in such other charge-sheet, unless that charge-sheet on sentence.

and ask and be given such advice in open court.

is withdrawn under rule 80.

68.

If the ndings on all charges against the accused are not guilty the Expression of 64.

(1) The opinion of the presiding ofcer and each member as to the Release of accused.

court shall order the accused to be released and the presiding ofcer and judge nding shall be given in closed court, orally, and on each charge separately, opinions on, and and their opinions shall be given in order of seniority commencing with the advocate shall date and sign the record of the proceedings; and the presiding form of, nding.

ofcer shall then forward the record as directed in the convening order.

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(1) If the nding on a charge against the accused is guilty, or the court accused may 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 (a) give evidence on oath and call witnesses in mitigation of possible take evidence of his age, rank and service record including- punishment and to his character; and (a) any recognized acts of gallantry or distinguished conduct on the (b) address the court in mitigation of punishment.

part of the accused and any decoration to which he is entitled; 70.

(1) Before the court close to deliberate on their sentence the accused Request by accused (b) particulars of any offence of which the accused has been found may request the court to take into consideration any other offence under the for other offences guilty during his service and which is recorded in the service books Act committed by him of a similar nature to that of which he has been found to be taken into relating to the accused; and guilty, and, upon such a request being made, the court may agree to take into consideration.

(c) the length of time he has been under arrest awaiting trial or in consideration any of such other offences as to the court seem proper.

connement under a current sentence.

(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 (2) Evidence of the matters referred to in paragraph (1) may be given by if he admits having committed them.

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 (3) The accused shall sign a list of the offences which he admits having the accused, after the witness has in court veried such statements and identied committed and the court shall take the offences in this list into consideration; the accused as the person to whom it relates.

and the list shall be signed by the presiding ofcer and be attached to the record (3) In addition to the evidence contained in the statement referred to in of the proceedings as an exhibit.

paragraph (2) it shall be the duty of the prosecutor whenever possible to call delIberatIon on sentenCe as a witness an ofcer to give to the court any information in the possession of the service authorities regarding- 71.

While the court are deliberating on their sentence no person shall be Persons entitled to be present during (a) the accuseds family background and responsibilities and any other present except the presiding ofcer, the members, the judge advocate and any deliberation on circumstances which may have made him more susceptible to the ofcer under instruction.

sentence.

commission of the offence charged; Sentence and (b) his general conduct in the service; and 72.

(1) The court shall award a sentence in respect of each of the offences recommendation to of which the accused is found guilty; and the sentence or sentences shall be in mercy.

(c) particulars of offences which do not appear in the statement above the appropriate form set out in Part I of the Fifth Schedule.

referred to of which the accused has been found guilty by a civil (2) The opinion of the presiding ofcer and each member as to the court, not being offences of which he was found guilty while sentence shall be given orally and in closed court, and their opinions shall be under the age of fourteen years, and which are of the same general given in order of seniority commencing with the junior in rank.

nature as that of which the accused has been found guilty by the court martial: (3) When the court have agreed to take into consideration an offence or Provided that the court shall not be informed of any such civil offence 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 unless the nding is proved in accordance with section 139 of the Act, or the not greater than the maximum sentence which may be awarded under the Act accused has admitted, after the purpose for which such admission is required for the offence of which the accused has been found guilty, save that they may has been explained to him, that he has been found guilty of the offence.

include in their sentence a direction that such deductions shall be made from (4) The accused may cross-examine any witness who gives evidence 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 in accordance with paragraphs (2) and (3) and, if the accused so requires, the well as of the offence of which he has been found guilty.

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 (4) The court may make a recommendation to mercy and if they do so with the service books or such certied copy the court shall cause the form to shall record in the proceedings their reasons for making it.

be corrected accordingly.

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199 205 [Subsidiary] examination [Subsidiary] Postponement of 73.

Where two or more accused are tried separately by the same court of witnesses; deliberation on upon charges arising out of the same transaction the court may, if they think that (b) not to refer to any matter not relevant to the charge before sentence.

the interests of justice so require, postpone their deliberation upon the sentence the court; and 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.

(c) not to state as a matter of fact any matter which is not proved or announCement of sentenCe and ConClusIon of trIal which they do not intend to prove by evidence.

Announcement 74.

(1) The sentence or sentences, and any recommendation to mercy (2) Without prejudice to the generality of paragraph (1) it shall be the of sentence and duty of the prosecutor to bring the whole of the transaction before the court together with the reasons for making it, shall be announced in open court; and the conclusion of trial.

and not to take any unfair advantage of, or to withhold any evidence in favour sentence or sentences shall be announced as being subject to conrmation.

of, the accused.

(2) When paragraph (1) has been complied with the presiding ofcer 77.

(1) Subject to these Rules, the following persons shall be allowed to Counsel.

shall announce in open court that the trial is concluded.

appear as counsel at a court martial- (3) Immediately after the conclusion of the trial the presiding ofcer and (a) an advocate; judge advocate shall date and sign the record of the proceedings.

(b) with the consent of the convening ofcer, any person who is (4) The presiding ofcer shall then forward the record as directed in the recognized by him as having in any country or territory outside convening order.

Kenya rights and duties similar to those of an advocate and as being general dutIes of presIdIng offICer, proseCutor and defendIng subject to punishment or disability for a breach of professional offICer or Counsel rules.

General duties of 75.

It shall be the duty of the presiding ofcer to ensure that the trial is (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 presiding ofcer.

conducted in accordance with the Act and these Rules and in a manner betting object to the admissibility of evidence at a court martial and any right granted a court of justice, and in particular- to the accused by rules 24 (5), (7) and (8), 26, 30, 35, 36, 37, 38, 39, 46, 57, (a) to ensure that the prosecutor and the defending ofcer or counsel 70, 78 (2), 90 and 92 (2), may be exercised by his defending ofcer or his conduct themselves in accordance with these Rules; 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 (b) to ensure that the accused does not suffer any disadvantage in 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 consequence of his position as such, or of his ignorance, or of his plea to the jurisdiction or in bar of trial made, taken or offered at a court martial incapacity to examine or cross-examine witnesses, or to make his by his defending ofcer or counsel on his behalf.

own evidence clear and intelligible, or otherwise; (c) to ensure that an ofcer under instruction does not express an (3) If the accused is to be defended at his court martial by counsel not opinion to the court on any matter relating to the trial before the 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.

court have come to their nding, nor on sentence before the court have decided upon the sentence; and poWers and dutIes of Judge adVoCate (d) to ensure that the record of the proceedings and the exhibits attached 78.

(1) The judge advocate shall be responsible for the proper discharge General duties of to or kept with such record are kept in safe custody.

of his functions to the Chief Justice.

judge advocate.

General duties of prosecutor and 76.

(1) It shall be the duty of the prosecutor and of the defending ofcer (2) The prosecutor and the accused respectively are at all times after the or counsel to assist the court in the administration of justice, to treat the court judge advocate is named to act at the trial entitled to his opinion on any question defending ofcer or and judge advocate with due respect and to present their cases fairly, and in counsel.

particular- 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.

(a) to conform with these Rules and the practice of the civil (3) On the assembly of the court the judge advocate shall advise the court courts relating to the examination, cross-examination and re- 206 CAP.

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199 207 [Subsidiary] [Subsidiary] the court and of any ofcer under instruction; and where the presiding ofcer 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 so directs he, the members of the court and any ofcer under instruction shall may arise; and the court shall accept the judge advocates advice on all such withdraw from the court.

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 (2) The judge advocate shall, when the presiding ofcer and members of the court and any ofcer under instruction have withdrawn in accordance ofcer in the record of the proceedings.

with paragraph (1), hear the arguments and evidence relevant to the point at (4) After the closing addresses the judge advocate shall sum up the issue and shall give his ruling upon this point and such reasons therefor as he evidence and advise the court upon the law relating to the case before the court 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 close to deliberate on their nding; and if in the course of deliberating on their shall return to the court room and the judge advocate shall announce his ruling nding the court require further advice from the judge advocate, they shall to them and the court shall follow his ruling.

suspend their deliberation and ask and be given such advice in open court.

(3) When a judge advocate sits alone in accordance with this rule the (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 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 of the opinion that such nding or special nding is contrary to the law relating to the case- 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 (a) he shall once more, but not more than once more, advise the court 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 what ndings are in his opinion open to them; to be done by the court or by the presiding ofcer may be done by the judge (b) the court shall then reconsider their nding in closed court; and advocate when sitting alone.

(c) the record of the proceedings relating to such reconsideration shall (4) When a judge advocate is sitting alone in accordance with this rule be in Form VII in the Fourth Schedule.

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 (6) The judge advocate shall be present whenever the court is sitting who shall take such action as he considers appropriate.

whether in open or closed court, except when the court is deliberating on the (5) The judge advocate shall be responsible for ensuring that the presiding nding on the charge or on a revision thereof.

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.

(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 WIthdraWal and amendment of Charge-sheets and Charges examine or cross-examine witnesses, or to make his own evidence clear and intelligible, or otherwise.

80.

A court may with the concurrence of the convening ofcer (which Withdrawal of (8) The judge advocate shall be responsible for seeing that a proper record may be signied by the prosecutor) allow the prosecutor to withdraw a charge charge-sheets and of the proceedings is made in accordance with rule 90.

before the accused is arraigned thereon or a charge-sheet before the accused is charges.

arraigned on any charge therein.

79.

(1) If- Judge advocate 81.

(1) At any time during a trial, if it appears to the court that there is Amendment of sitting alone.

(a) during the course of a trial any question as to the admissibility of in the charge-sheet- charge-sheets and evidence arises; or (a) a mistake in the name or description of the accused; charges by court.

(b) during a joint trial an application is made by any of the (b) a mistake which is attributable to a clerical error or omission, accused for a separate trial; or the court may amend the charge-sheet so as to correct the (c) an application is made by an accused that a charge should be tried mistake.

separately, (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 the presiding ofcer may direct that the point at issue shall be determined by make any addition to or omission from or alteration in a charge which cannot the judge advocate in the absence of the presiding ofcer and the members of be made under paragraph (1), they may, if such addition, omission or alteration 208 CAP.

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199 209 [Subsidiary] [Subsidiary] absent during any part of a trial he shall take no further part in it, and the like can be made without unfairness to the accused, so amend the charge if the judge advocate concurs.

steps shall be taken as if the presiding ofcer, judge advocate or member, as the case may be, had died.

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 (4) An ofcer cannot be added to the court after the accused has been arraigned.

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 (5) Where a court is dissolved in accordance with this rule the convening without unfairness to the accused.

ofcer shall without undue delay take the prescribed steps to convene another sIttIngs and adJournment of Court court to try the accused.

Sittings of court.

83.

Subject to the provisions of the Act and of these Rules relating to InsanIty 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: 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 Provided that the court shall not sit on a Sunday, or on a public holiday, court are of the opinion that the accused is t to stand trial, they shall proceed unless in the opinion of the court or of the convening ofcer the exigencies of the service make it necessary to do so.

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 Adjournment 84.

(1) During a trial the court may adjourn from time to time and from forthwith and as being subject to conrmation.

place to place as the interests of justice require.

(2) If a court, in the course of their deliberation on their nding on a (2) If during a trial any reason emerges which makes it advisable that the 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, court should not continue to hear the case, the court shall adjourn and report their nding shall be announced in open court forthwith and as being subject thereon to the convening ofcer.

to conrmation.

(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 (3) Immediately after a nding has been announced under paragraph (1) or paragraph (2) the presiding ofcer shall announce in open court that the trial, the court shall ascertain the facts of the illness and shall then adjourn and proceedings are terminated and thereupon the presiding ofcer and the judge report to the convening ofcer.

advocate shall date and sign the record of the proceedings, and the presiding View by court.

85.

(1) If at any time during a trial before the court close to deliberate on ofcer shall then forward the record as directed in the convening order.

their nding it appears to the court that they should, in the interests of justice, InterVIeWIng and attendanCe of WItness view any place or thing, they may adjourn for this purpose.

88.

(1) The prosecution shall not without the consent of the convening Interviewing of (2) When the court view any place or thing the presiding ofcer, members ofcer, or, after the trial has begun, without the consent of the presiding ofcer, witnesses.

of the court, judge advocate, prosecutor, accused and defending ofcer or interview any witness whose attendance at the trial the accused has requested counsel (if any) shall be present.

in accordance with rule 24 (5) (b), or who has made a statutory declaration a Absence of presiding 86.

(1) If after the commencement of a trial the presiding ofcer copy of which the accused has served on the prosecution in accordance with section 93 of the Act.

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) 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 (2) If after the commencement of a trial any member of the court dies or 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 is otherwise unable to attend the court, if not thereby reduced below the legal in respect of whom the prosecution have given the accused notice under rule 48 minimum, shall continue with the trial, but if reduced below the legal minimum that they intend to call him as a witness at the trial, or who has made a statutory the court shall adjourn and the presiding ofcer shall report to the convening declaration a copy of which the prosecution have served on the accused in ofcer, who shall dissolve the court if there is any likelihood of a long delay.

accordance with section 93 of the Act.

(3) If the presiding ofcer, judge advocate, or a member of the court is CAP210.

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199 211 [Subsidiary] [Subsidiary] Procuring attendance 89.

(1) A witness who is subject to the Act may be ordered by the proper (c) when an objection, submission or application is made during a trial of witnesses.

service authority to attend at the taking of an abstract of evidence or a trial by at which there is no shorthand writer a record shall be made of the court martial.

proceedings relating to such objection, submission or application if and in such detail as the court or judge advocate thinks t: (2) A witness who is not subject to the Act may be summoned to Provided that if the prosecutor or accused so requests a note shall be made attend- of the objection, submission or application, the grounds therefor, the advice of (a) the taking of an abstract of evidence by an order under the hand the judge advocate thereon and the decision of the court; of the commanding ofcer of the accused; or (d) When any address by the prosecutor or the accused or summing-up (b) a trial by court martial by an order under the hand of an ofcer 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 authorized to convene a court martial or of a staff ofcer on his such address or summing-up as the presiding ofcer or the judge behalf or, after the assembly of the court, of the presiding ofcer.

advocate thinks proper: (3) The summons referred to in paragraph (2) shall, when it relates to Provided that if the prosecutor or accused so requests a note shall be the taking of an abstract of evidence, be in Form IV in the First Schedule, and made of any particular point in such address or summing-up; 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 (e) there shall not be recorded in the record of the proceedings any with some person at the witnesss normal place of abode.

matter not forming part of the trial; but, if any comment or report (4) At the time of service of the summons referred to in paragraph (2) seems to the court to be necessary, the presiding ofcer may forward there shall be paid or tendered to the witness a sum in respect of his reasonable it to the proper service authority in a separate document.

expenses in respect of journeying to, attending at and returning from the taking 91.

(1) Subject to paragraph (2), any document or thing admitted in Exhibits.

of the abstract of evidence or the trial, as the case may be: evidence shall be made an exhibit.

Provided that for the purpose of this paragraph the tender of a warrant (2) When an original document or book is produced to the court by a or voucher entitling the witness to travel free of charge shall be deemed to witness the court may at the request of the witness compare a copy of it or an constitute tender of his expenses in respect of any traveling authorized by the warrant or voucher.

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 (5) Section 95 of the Act applies in relation to proceedings at the taking of has certied thereon that the court has compared it with the original and found an abstract of evidence as it applies in relation to proceedings at a court martial 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.

as though the words ofcer taking the abstract of evidence were substituted for the words presiding ofcer of the court martial.

(3) Every exhibit shall- reCord of proCeedIngs (a) be marked with a number or letter and be signed by the judge 90.

The proceedings of courts martial shall be recorded as follows- advocate or have a label bearing a number or letter and the signature Record of of the judge advocate afxed to it; proceedings.

(a) the proceedings shall be recorded in writing in accordance with the (b) be attached to or kept with the record of proceedings unless in the appropriate part of Form V in the Fourth Schedule and in sufcient opinion of the court having regard to the nature of the exhibit or detail to enable the conrming ofcer to follow the course of the for other good reason it is not expedient to attach it to or keep it proceedings and to judge the merits of the case; with the record.

(b) when there is no shorthand writer present the evidence shall be taken (4) When an exhibit is not attached to or kept with the record of the down in narrative form as nearly as possible in the words used: proceedings under paragraph (3) (b) the presiding ofcer shall ensure that proper steps are taken for its safe custody.

Provided that, if the court, the judge advocate, the prosecutor or the accused considers it necessary, any particular question and answer shall be 92.

(1) During a trial the record of proceedings and the exhibits shall be Custody and taken down verbatim; deemed to be in the custody of the presiding ofcer, save when he has withdrawn inspection of record 212 CAP.

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199 213 [Subsidiary] from the court in accordance with rule 79 (1) when they shall be deemed to be [Subsidiary] of proceedings in the custody of the judge advocate.

accused of the nding and sentence, or of the fact that conrmation has been during trial.

withheld, as the case may be.

(2) With the permission of the court, the prosecutor or the accused may (8) The fact of promulgation shall be recorded on the record of the at any reasonable time before the trial is concluded have a particular part of proceedings in Form XIII in the Fourth Schedule.

the record of the proceedings read to him and, if proper precautions are taken for its safety, inspect any exhibit.

(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 ConfIrmatIon, reVIsIon and promulgatIon bar of trial or to overrule an objection to the charge, the accused shall be so 93.

(1) When a conrming ofcer receives the record of the proceedings informed.

Conrmation and 94.

(1) The proceedings and decision of a court on revision shall be promulgation.

of a court martial and the nding of the court requires conrmation he shall Revision.

recorded on the record of the proceedings in Form IX in the Fourth Schedule, record, in the appropriate part of Form X in the Fourth Schedule, his decision and the presiding ofcer shall date and sign such record and decision and return with regard to the proceedings, and any sentence and any order which the it to the conrming ofcer after it has been signed by the judge advocate.

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 an accused is acquitted on revision the revised nding shall be communicated to the accused in such manner as may be specied by the (2) When a court have accepted a plea of guilty made under rule 40 (2) conrming ofcer.

the conrming ofcer may conrm their nding, notwithstanding that the court have accepted the plea without the concurrence of the convening ofcer, if in loss of proCeedIngs 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 95.

(1) If before conrmation the whole or any part of the original record Loss of original or a plea in bar of trial or have overruled an objection to a charge it shall not 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 before conrmation.

be necessary for the conrming ofcer to approve specically the decision of and used in lieu of the original.

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 (2) If before conrmation the whole or any part of the original record the decision of the court to reject the plea or to overrule the objection, he of the proceedings of a court martial is lost and no copy thereof exists, but shall withhold conrmation of the nding on the charge to which the plea or evidence of the proceedings of the court can be procured to enable the record objection relates.

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 (4) A conrming ofcer may state his reasons for withholding of the case, the record as so reconstituted may be accepted and used in lieu of 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 the original if the judge advocate certies it to be an adequate record: objection to the charge, because he disapproves this decision of the court, he Provided that where part only of the original record of the proceedings of shall when recording his decision under paragraph (1) state that he has withheld a court martial has been lost, and the part which remains is sufcient to enable conrmation for this reason.

the conrming ofcer to follow the course of the proceedings and judge the (5) If the sentence of a court martial is informally expressed 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, conrming ofcer may in conrming the sentence vary the form thereof so and in such case it shall not be necessary to reconstitute the part of the record that it shall be properly expressed.

which has been lost.

(6) Whenever it appears there is sufcient evidence or a plea of guilty (3) If before conrmation the whole or any part of the original record of under paragraph (1) or paragraph (2) of rule 40 to justify the nding of the court, proceedings of a court martial is lost and such loss cannot be made good under such nding and any lawful sentence consequent thereon may be conrmed, and either paragraph (1) or paragraph (2), the conrming ofcer shall withhold if conrmed shall be valid, notwithstanding any deviation from these Rules, if the accused has not been prejudiced by such deviation.

conrmation and shall record his decision in the appropriate form set out in the Fourth Schedule.

(7) When a conrming ofcer has conrmed a nding and sentence of 96.

If after conrmation the whole or any part of the original record Loss of original a court or has withheld conrmation thereof he shall send the record of the of the proceedings of a court martial is lost and a copy thereof is certied by record of proceedings proceedings to the commanding ofcer of the accused for promulgation to the the presiding ofcer or judge advocate to be correct, or a sufcient record 214 CAP.

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199 215 [Subsidiary] of the charge, nding, sentence and proceedings before the court and of the the authority to whom the petition is addressed.

[Subsidiary] 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 mIsCellaneous reconstituted record or remaining part of the record may be accepted and used in lieu of the original.

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 length of Custody of reCord of proCeedIngs and Cost of CopIes shall be in Form IV in the Fourth Schedule to these Rules.

statutory declaration.

of proCeedIngs 101.

(1) Where in the opinion of the ofcer who is or would be responsible Exceptions from Custody of record 97.

For the purposes of section 114 (1) of the Act the prescribed period for convening a court martial to try the accused or, if he is not available, of the Rules on account of proceedings after during which the record of the proceedings of a court martial shall be kept in the senior ofcer on the spot, the exigencies of the service render compliance with all of the exigencies of custody of the Commander shall be six years from the conclusion of the trial.

or any of the provisions of the rules mentioned in paragraph (4) impracticable, service.

conrmation.

he may make a declaration to that effect in Form II in the Fourth Schedule.

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 (2) A declaration made under paragraph (1) by the senior ofcer on the proceedings.

shall be the estimated cost of the copy required not exceeding two shillings for spot shall be forwarded by him as soon as possible to the ofcer who is or would every folio of one hundred words.

be responsible for convening a court martial to try the accused.

petItIons (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 Petitions.

99.

(1) If an accused who has been sentenced by a court martial wishes in that declaration and these Rules shall be construed accordingly.

to petition before conrmation against the nding or sentence or both, he shall (4) The provisions of these Rules in respect of which a declaration may present a petition to the conrming ofcer in the appropriate form set out in be made under paragraph (1) are- the Seventh Schedule.

(2) If an accused who has been sentenced by a court martial wishes to (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 petition after conrmation against the nding or sentence or both, he shall the appropriate superior authority investigates and deals summarily present a petition to the reviewing authority in the appropriate form set out in with the charge; the Seventh Schedule.

(3) For the purposes of section 106 of the Act the prescribed time within (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 which a petition may be presented to the reviewing authority after conrmation accused not less than twenty-four hours before his trial.

shall be six months from the date that conrmation of a conviction or sentence is promulgated.

(5) If an accused is brought to trial by court martial or is dealt with (4) If an accused who has been sentenced by a court martial wishes to 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 petition at any time after promulgation against the sentence, he shall present the proceedings of the court martial or to the record made by the appropriate a petition to the Commander for the reconsideration of the sentence under superior authority as the case may be.

section 106 of the Act in the appropriate form set out in the Seventh Schedule to these Rules.

102.

(1) When in the opinion of the ofcer who is or would be responsible Exceptions from (5) For the purposes of section 112 (2) of the Act the prescribed intervals for convening a court martial to try the accused, or if he is not available of the Rules in interests of at which a sentence of imprisonment is to be reconsidered shall be intervals 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 not more than six months, provided that a sentence of less than one year but contains information the disclosure of which would or might be directly or of or exceeding three months is to be rst reconsidered not later than at the indirectly useful to an enemy, he may make a declaration to that effect in Form completion of half the sentence, excluding any remission due.

II in the Fourth Schedule specifying the document concerned.

(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 (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 presented to the person specied in relation to those circumstances in the is or would be responsible for convening a court martial to try the accused.

second column of that Schedule shall be treated as having been presented to 216 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 217 [Subsidiary] (3) When a declaration has been made under paragraph (1) it shall not be form I (r.

5) [Subsidiary] 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 DELAY REPORT Rules if the accused is given a proper opportunity to inspect such document while preparing and making his defence.

Unit Address.

(4) If an accused is brought to trial by court martial or is dealt with Telephone:.

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.

To: Procedure in case 103.

(1) In any case where these Rules provide for a person to make, read (Convening Ofcer) of illiteracy or or sign any written statement or other document, if such person is illiterate, or 1 incapacity.

otherwise incapacitated, then such statement or other document EIGHT DAY DELAY REPORT pursuant to the Armed Forces Act, section 72 (2).

(a) may be written down for him; Number, Rank, Name of accused.

.

(b) shall be read over to him in a language which he understands; _ Date placed in arrest., 19 _ (c) shall have his signature, mark or thumbprint afxed to it; and Alleged Offence(s) Date of Alleged Offence(s).

(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 accused is in close/open arrest.

(2) The certicate referred to in paragraph (1) shall identify the person The reasons for his retention in arrest are.

giving it by name, and number, rank and unit where appropriate, or address, as the case may be.

.

is being taken.

is being taken Deviations from 104.

A deviation or omission from a form or form of words set out in a has been taken has been taken the forms in the Schedule to these Rules shall not, by reason only of such deviation or omission, was taken on ., 19.

2 Schedules.

render any document, act or proceeding invalid.

The abstract of evidence { has not yet been taken because.

.

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.

was consulted on ., 19.

2 The Attorney-General { has not yet been consulted because.

.

FIRST SCHEDULE was received on , 19.

forms for CommandIng offICers 2 The AttorneyGenerals advice { has not yet been received.

Form I.

Delay Report.

Form II.

Abstract of evidence.

is being taken on the Attorney-Generals Form III.

Certicate to be attached to an abstract of evidence after it has 2 Action has been taken advice as follows been handed to the accused.

{ } { } Form IV.

Summons to a witness to attend the taking of an abstract of evidence.

.

_.

218 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 219 [Subsidiary] [Subsidiary] form III (r.

9 (4)) has not yet been xed.

2 CERTIFICATE TO BE ATTACHED TO AN ABSTRACT OF Date of trial { has been xed as.

., 19.

EVIDENCE AFTER IT HAS BEEN HANDED TO THE ACCUSED Reasonsfordelaysincelastreport.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

.

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.

Ofcer commanding accuseds unit dated the.

day of , 19., which is marked ( to be signed personally by the C.O.).

and attached to this certicate) (did not make a statement).

.

Date , 19.

(Signature of certifying ofcer) notes (Date) 1 Insert 1st, 2nd, 3rd, Final or as the case may be.

2 Strike out words not applicable.

notes _1 Insert rank, name and unit of ofcer signing the certicate.

2 Insert number, rank, name and unit of the accused.

form II (r.

9 (1)) _ ABSTRACT OF EVIDENCE form IV (r.

89 (3)) Abstract of evidence in the case of.

(number, rank, name, unit) consisting of the.

SUMMONS TO A WITNESS TO ATTEND THE TAKING OF (insert the number of statements) attached statements and.

1 AN ABSTRACT OF EVIDENCE (insert the number of prcis ) prcis of evidence of witnesses for the prosecution and compiled by me (the Commanding Ofcer of the 12 accused) (.

on the direction of the commanding TO :.

ofcer of the accused).

2 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 ., (Signature and rank) 19.

(Date) 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 notes abstract of evidence at.3 on the.

day of ., 19., 1 at .oclock in the.

noon and to bring with you the Strike out any reference to statements or prcis which are not applicable.

42 documents hereinafter mentioned, viz.

:.

Insert name and rank of the ofcer making the abstract.

.

.

.

.

220 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 221 [Subsidiary] [Subsidiary] Whereof you shall fail at your peril.

4.

The accused (number, rank and name) a member of the Armed Forces Constabulary, being subject to the Armed Forces Act, under Given under my hand at.

on the section 8 (1) of that Act, is charged with- day of ., 19.

.

(Signature, rank and unit).

Commanding ofcer of the accused notes 5.

The accused.

(name) a person 1 Insert name and address of the person to whom the summons is to be sent.

2 employed in the service of a unit Insert the number, rank, name and unit of the accused.

3 Insert the place where the abstract of evidence is to be taken.

a part of a unit which is 4 Specify the documents (if any) which the witness is to bring.

If the witness { accompanying a unit { a member of a unit } is not required to bring any documents, strike out the words relating to the documents.

on active service, being subject to the Armed Forces Act, under section 9 (1) of that Act, is charged with- SECOND SCHEDULE Form I.

Commencement of a charge-sheet.

Form II.

Statement of offences.

6.

The accused.

(number, rank, name and unit) Form III.

Illustrations of charge-sheets.

an ofcer military form I (r.

13 (3)) { a serviceman } of the { air } forces of a country to naval which COMMENCEMENT OF A CHARGE-SHEET section 11 (2) of the Armed Forces Act, applies, seconded attached 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- to a unit of the Armed Forces being subject to that Act under section 11 (1) (b).

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 } 7.

The accused (name) formerly (number, rank and unit if applicable) an ofcer a serviceman } of the Armed Forces a reservist being subject to that Act under section 7 (b) of that Act, is charged with- a person.

{ a member of the Armed Forces }.

Constabulary 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-.

.

222 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 223 [Subsidiary] 7 (a) Section 15 [Subsidiary] 7 (b) then subject to the Armed Forces Act, under section 7 (c) (1) Communicating with the enemy (1) of the Armed { 8 (1) } (2) { Giving intelligence to } contrary { (2) } Forces Act.

9 (1) to section 15 of that Act, now liable to trial by court-martial under section 141 of that Act, Section 16 is charged with-.

(1) Misconduct by a person (a) in command with intent to (b) of the Armed Forces assist the enemy contrary (c) Act.

form II (r.

14 (4)) to section 16 (1) { (d) } (e) STATEMENTS OF OFFENCES treaChery, CoWardICe and offenCes arIsIng out of serVICe (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 14 Section 17 (a) (a) Misconduct by a person not in command (with intent to assist the enemy) (b) (b) contrary to section 17 of the Armed Forces Act.

(c) With intent to (c) of the Armed Section 18 (1) (d) assist the enemy, (d) Forces Act.

(e) contrary to section (e) (a) { (f) } 14 (1) { (f) } (1) Cowardice before the enemy (b) of the Armed Forces (g) (g) contrary to section 18 (1) { (c) } Act.

(h) (h) (2) Inducing cowardice before the enemy contrary to section 18 (2) of the (a) Armed Forces Act.

(b) Knowingly and without (c) of section 14 (1) of Section 19 (2) lawful excuse doing an act (d) the Armed Forces Act, specied in paragraph (e) contrary to section 14 (2) Neglecting to perform a duty contrary to section 19 of the Armed { (f) } of that Act.

Negligently performing } Forces Act.

(g) Section 20 by the enemy of aircraft (a) Spreading reports relating to operations calculated to create despondency or capture belonging to the armed unnecessary alarm contrary to section 20 (a) of the Armed Forces Act.

(3) Negligently causing the forces, contrary to (b) When before the enemy using words calculated to create despondency or { destruction } section 14 (3) of the unnecessary alarm contrary to section 20 (b) of the Armed Forces Act.

Armed Forces Act.

Section 21 (1) Being captured through disobedience or wilful neglect contrary to section 21 (1) of the Armed Forces Act.

224 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 225 [Subsidiary] [Subsidiary] Failing to take reasonable steps after capture to with violence contrary to section Preventing a person rejoin the armed forces contrary (1) (b) Incitement to mutiny 25 (1) (b) of the (2) Discouraging } from taking to section 21 (2) of the Armed { relating to the enemy } Armed Forces Act.

{ } Forces Act.

Section 22 (2) { Mutiny } contrary to section 25 (2) of the Armed Sleeping at his post when on guard duty or Incitement to mutiny Forces Act.

watch contrary to section 22 (1) (a) Section 26 Sleeping when on guard duty or watch contrary to section 22 (1) (b) (a) Failing to suppress or prevent mutiny contrary to section 26 (a) of the (1) Drunkenness when on guard duty or watch of the Armed Forces Armed Forces Act.

contrary to section 22 (1) (c) Act.

(b) Failing to report mutiny contrary to section 26 (b) of the Armed Forces { Leaving his post when on guard } Act.

Absenting himself } duty or watch Section 27 contrary to section 22 (1) (d) Striking his superior ofcer contrary to section Striking a person on guard duty or watch to let a (a) { Using violence against } 27 (a) of the Armed Forces Act.

(2) { Using violence against person pass contrary to section 22 (3) of offering violence to Compelling } the Armed Forces Act.

threatening language to his superior ofcer contrary to Section 23 (b) Using { insubordinate } section 27 (b) of the Armed Forces Act.

(a) (a) (b) } Looting contrary to section { (b) } of the Armed Forces Act.

Section 28 (c) 23 (c) (1) Disobeying a lawful command with wilful deance of Authority contrary Section 24 to section 28 (1) of the Armed Forces Act.

(2) Disobeying a lawful command contrary to section 28 (2) of the Armed Committing an offence person of a member of a civil population Forces Act.

against the { } outside Kenya contrary to section Section 29 property 24 of the Armed Forces Act.

a provost ofcer mutIny and InsubordInatIon a duty ofcer (a) Obstructing an ofcer of the patrol Section 25 { a person exercising a provost ofcer authority under or a duty ofcer (1) (a) Mutiny with violence on behalf of } an ofcer of the } { relating to the } contrary to section 25 (1) (a) of the patrol enemy Armed Forces Act.

contrary to section 29 (a) of the Armed Forces Act.

226 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 227 [Subsidiary] [Subsidiary] a provost ofcer malIngerIng, drunkenness and quarrellIng a duty ofcer (b) Refusing to an ofcer of the patrol Section 35 assist a person exercising a provost ofcer { authority under or a duty ofcer (a) on behalf of } an ofcer of the } Malingering contrary to section 35 (b) of the Armed Forces patrol { (c) } Act.

(d) contrary to section 29 (b) of the Armed Forces Act.

Section 36 Section 30 (1) Drunkenness contrary to section 36(1) of the Armed Forces Act.

(1) Disobedience to standing orders contrary to section 30 (1) of the Armed Section 37 Forces Act.

(a) { Fighting } with another person contrary to section 37 (a) desertIon, absenCe WIthout leaVe, etC.

Quarrelling of the Armed Forces Act.

Section 31 (b) Using { words } likely to cause a disturbance contrary to (1) (a) Desertion contrary to section 31 (1) (a) of the Armed Forces Act.

behaviour section 37(b) of the Armed Forces Act.

(1)(b) Persuading a person to desert contrary to section 31 (1) { Procuring } (b) of the Armed Forces Act.

offenCes relatIng to property Section 32 Section 38 (a) Absence without leave contrary to section 32 (a) of the Armed Forces Stealing Act.

Fraudulently misapplying public property (b) { Persuading } a person to absent himself without leave contrary (a) Being concerned in stealing of fraudulent contrary Procuring to section 32 (b) of the Armed Forces Act.

the to section misapplication of { Conniving at } { } 38 (a) of Section 33 the Armed Forces Act.

(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) Receiving public property contrary to section 38 (b) of the (b) Failing to a person attempting to { } Armed Forces Act.

Retaining { take steps to cause { desert or absent } the apprehension of himself.

contrary to section 33 (b) of the Armed Forces Act.

Wilfully damaging public property contrary to section 38 (c) (c) Being concerned in of the Armed Forces Act.

{ } the wilful damage of Section 34 Failing to attend for a service duty (d) By willful neglect damaging public property by re contrary to section contrary to section 34 of the 38(d) of the Armed Forces Act.

Leaving a service duty without } Armed Forces Act.

permission 228 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 229 [Subsidiary] [Subsidiary] Section 39 (c) Negligently damaging public property by re contrary to section 42 (c) Stealing of the Armed Forces Act.

Fraudulently misapplying property contrary to section 39 (a) (d) an animal contrary to section 42 (d) of the Armed (a) Being concerned in stealing of fraudulent of the Armed Neglect of a bird Forces Act.

the Forces Act.

{ } misapplication of { Conniving at } { } (e) a service decoration contrary to section Making away with granted to him 42 (e) of the Armed { } Forces Act.

his equipment (b) Receiving property contrary to section 39 (b) of the Armed Section 43 { } Forces Act.

Retaining obtaining billets contrary to (a) Unlawfully ordering a person to obtain section 43 (a)of the Wilfully damaging property contrary to section 39 (c) of the { } { (c) Being concerned in Armed Forces Act.

procuring Armed Forces Act.

{ } the wilful damage of (b) Corruption in relation to a billeting order contrary to section 43 (b) of the Section 40 Armed Forces Act.

captured Committing an offence against a person his billet Wilfully causing an aircraft lost (c) { } Damaging property in contrary to Negligently allowing a ship to be destroyed { Damaging of property in section 43 (c) { } { }{ } damaged a vehicle } stranded of the Armed { hazarded } Forces Act.

contrary to section 40 of the Armed Forces Act.

Section 44 Section 41 (a) Unlawful requisitioning contrary (a) of the Armed Forces (1) (b) to section 44 (1) (b) Act.

{ } { } (a) Being concerned in an improper an aircraft contrary to (a) (b) transaction involving the use of { } (1) (c) Corruption in relation to a requisition order contrary to section 44(1) a ship section 41 (b) (c) of the Armed Forces Act.

{ } a vehicle of the Armed Forces Act.

offenCes relatIng to flyIng Section 42 Section 45 (a) Losing public property contrary to section Negligently damaging a service decoration 42 (a) of the { } { } granted to him Armed Forces Willfully doing an act ying Act.

Negligently making an in the use of aircraft { } { } ommission Losing his equipment contrary to section 42 (b) { (b) Negligently damaging of the Armed Forces Act.

relation to aircraft } { } aircraft { material 230 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 231 [Subsidiary] [Subsidiary] causing loss of life (2) Striking whose duty it is { Using violence against a person to apprehend him bodily injury to a person contrary to section { } { } likely to cause loss of 45 of the Armed Forces Act.

Offering violence to in whose custody he is { } contrary to section 50 (2) of the Armed Forces Act.

life or bodily injury Section 46 Section 51 Unlawful low ying contrary to section 46 of the Armed Forces Act.

Escaping from custody contrary to section 51 of the Armed Forces Act.

Section 47 offenCes relatIng to Courts martIal and other authorItIes Flying an aircraft in a manner causing or likely to cause unnecessary Section 52 annoyance to a person contrary to section 47 of the Armed Forces Act.

offenCes relatIng to and by persons In Custody Section 48 (a) (a) (1) (b) (b) an investigation contrary to section 48 (1) (a) of (c) Contempt of a court martial (c) of the Armed Forces (1)(a) Delaying { } (d) contrary to section 52 (1) (d) Act.

a trial the Armed Forces Act.

(e) (e) (1) (b) Failing to release a person in arrest contrary to section 48 (1) (a) of the { } { } Armed Forces Act.

(f) (f) (2) Failing to report the offence for which a person has been placed in Section 53 custody contrary to section 48 (2) of the Armed Forces Act.

(3) Failing to give in writing information relating to a person committed (1) Making a false statement contrary to section 53 (1) of the Armed Forces to his charge as a guard commander contrary to section 48 (3) (b) of the Act.

Armed Forces Act.

Section 49 Section 54 (1) Willfully allowing a person to escape contrary to section 49 (1) of the (a) Preventing a person in executing a warrant of arrest Obstructing contrary to section 54 (a) of the Armed Forces Act.

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 (b) Preventing a person in making a lawful arrest contrary to Armed Forces Act.

Obstructing section 54 (b) of the Armed Forces Act.

{ } Section 50 prIze offenCes (1) Refusing to obey an ofcer who orders him into Section 55 Striking arrest contrary to section 50 (1) { Using violence against of the Armed Forces Act.

{ Being in an aircraft the High Court Offering violence to (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.

232 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 233 [Subsidiary] [Subsidiary] Addressing a meeting (c) Joining in a demonstration in support of a Being in an aircraft unlawfully making an an aircraft { } (b) command of a ship an agreement for the a ship { } { } ransoming of goods association contrary to taken as a prize contrary to section 55 (b) of the Armed Forces Act.

} Political object section 57 (c) { of the Armed { (c) Being in an aircraft by agreement restoring Forces Act.

command of a ship by collusion abandoning { } { } { } Candidate for a national election } local authority an aircraft { a ship { } Section 58 goods taken as a prize contrary to section 55 (c) of the Armed Forces Act.

Making a false answer on enlistment contrary to section 58 of the Armed Forces Act.

Section 56 Section 59 (a) Striking an aircraft Making a false statement to obtain leave contrary to section 59 of { } } Ill-treating a person on board a ship prolong the Armed Forces Act.

{ Unlawfully taking a thing } { Section 60 from the possession of taken as a prize contrary to section 56 (a) of the Armed Forces Act.

(a) Making an aircraft an aircraft taken as a prize any goods not lawfully } } Signing a certicate relating to aircraft material } { { (b) Removing out of a ship adjudged to be a prize contrary to { section 56 (b)of the Armed Forces Act.

without ensuring its accuracy contrary to section 60 (a) of the Armed Forces Act.

(c) Fraudulently breaking an aircraft taken as a prize bulk on board a ship detained by { } { } (b) Making the seagoing belligerent right } } Signing a certicate relating to the ghting contrary to section 56 (c) of the Armed Forces Act.

{ { mIsCellaneous offenCes efciency of a ship without ensuring its accuracy contrary to section 60 (b) of the Armed Forces Act.

Section 57 Section 61 Promoting a political association contrary (a) Making service document contrary to (a) Being a member of to section 57 (a) of the Armed } { } Signing a false section 61 (a) of the Armed Taking part in the activities of Forces Act.

{ } Making a false entry in a Forces Act.

(b) Expressing political views in a public place contrary to section 57 (b) of the Armed 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 234 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 235 [Subsidiary] [Subsidiary] CIVIl offenCes (c) Failing to make an entry in a service document so that it is to his Section 69 knowledge false contrary to section 61 (c) of the Armed Forces Act.

Section 62 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).

Scandalous conduct unbecoming the character of an ofcer contrary to section 62 of the Armed Forces Act.

form III (r.

13 (2)) Section 63 ILLUSTRATIONS OF CHARGE-SHEETS Striking inferior rank contrary to section 63 of (i) Charge-Sheet } a person of } Ill-treating less seniority the Armed Forces Act.

{ 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 Section 64 Forces Act under section 7 (a) of that Act, is charged with- of a cruel 1st Charge Disgraceful conduct kind contrary to section 64 an indecent stealIng publIC property Contrary to seCtIon 38 (a) of the of the Armed Forces Act.

{ an unnatural } armed forCes aCt Section 65 in that he at Nanyuki on 1st January, 1980, stole a pair of binoculars, public property.

(a) Making a false accusation contrary to section 65 (a) of the Armed Forces 2nd Charge Act.

(Alternative to (b) Making a false statement in a complaint contrary to 1st charge) Wilfully suppressing a material fact section 65 (b) of the Armed { } reCeIVIng publIC property Contrary to seCtIon 38 (b) of the Forces Act.

armed forCes aCt Section 66 in that he Attempting to commit a service offence contrary to section 66 of the Armed at Nanyuki on 1st January, 1980, received a pair of binoculars, public property, Forces Act, that is to say (set out the offence).

knowing or having reason to believe them to be stolen.

Section 67 J.

MUTISYA, Lieutenant-Colonel.

st Nanyuki, Commanding 1 Battalion Kenya Ries, 16th January, 1980.

Commanding ofcer of the accused.

Aiding, abetting, the commission of a service offence contrary To be tried by court martial counseling or to section 67 of the Armed Forces procuring Act, that is to say (set out the offence).

1 { } Nairobi, A.

NGATIA, Brigadier.

Conniving at st 21 January, 1980.

Commander Kenya Army.

Section 68 note 1 The order for trial may be signed by a staff ofcer as an ofcer authorized to An act to the prejudice of good order and service discipline 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 Conduct contrary to section 68 of the Armed Forces Act.

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 Neglect Chief of General Staff or on behalf of any Commander.

236 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 237 [Subsidiary] (ii) Charge-Sheet THIRD SCHEDULE (r.

19 (h)) [Subsidiary] 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 reCord of proCeedIngs, before an approprIate section 7 (b) of that Act and Paul Gachibi formerly No.

3456789 a Private of superIor authorIty 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 Accuseds number, rank and name.

unit.

court martial under section 141 of that Act, are charged with- 1.

Questions to be put to the accused by the ofcer dealing with the case Both accused jointly: before the charge is read.

1st Charge Q.

Have you received a copy of the charge-sheet and abstract of evidence not less than 24 hours ago? CommIttIng a CIVIl offenCe Contrary to seCtIon 69 (1) of the A.

.

armed forCes aCt, that Is to say assault oCCasIonIng aCtual Q.

Have you had sufcient time to prepare your defence? bodIly harm Contrary to seCtIon 251 of the penal Code A.

.

2.

The ofcer dealing with the case shall then read the charge(s) to the in that they accused and ask him the following question- Q.

Have you agreed in writing that the witnesses against you need not at Nairobi on 1st January, 1980, assaulted Julius Mwenda, thereby occasioning give their evidence in person? him actual bodily harm.

A.

.

Corporal Munyao only: 3.

If the accused has agreed in writing that the witnesses against him need 2nd Charge 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 usIng VIolenCe agaInst hIs superIor offICer, Contrary to has not so agreed, the witnesses against him shall give their evidence in person seCtIon 27 (a) of the armed forCes aCt 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 in that he the accused have given their evidence, as the case may be, the ofcer dealing with the case shall say to the accused- at Nakuru on 2nd January, 1980, used violence against No.

4567890 Sergeant Q.

Do you wish to give evidence on oath or to make or hand in a statement John Kinyoki who had ordered him into arrest by seizing the said sergeant by without being sworn?Your evidence or statement may deal with the facts of the the jacket and by kicking his legs.

case, with your character and with matters in mitigation of punishment.

Paul Gachibi only: A.

.

3rd Charge Q.

Do you wish to present any other evidence in your defence? A.

.

usIng InsubordInate language to hIs superIor offICer, Contrary 5.

If the accused elects to give evidence or to make a statement or to to seCtIon 27(b) of the armed forCes aCt 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 in that he 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 at Nakuru on 2nd January, 1980, said to No.

4567890 Sergeant John Kinyoki, determines that the accused is guilty, examine and consider the accuseds record who was then his superior ofcer, when asked by the said Sergeant for his of service.

If he intends to award the punishment of forfeiture of seniority of rank, (the accuseds) particulars Push off and nd out for yourself or words to that effect.

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 J.

NDUNDA, Lieutenant-Colonel.

that he will accept his award- Nakuru, Commanding 2nd Battalion Kenya Ries, Q.

Will you accept my award or do you elect to be tried by court- 20th January, 1980.

Commanding ofcer of both accused.

martial? To be tried by court martial A.

.

A.

MACHARIA, Major1.

6.

Finding.

Award Nairobi, An ofcer authorized to sign for (Signature, rank and appointment of 25th January, 1980.

the Chief of Defence Staff.

{ } appropriate superior authority} the Commander, Kenya Army.

(Date).

notes 1 See note 1 to Charge-Sheet (i) above.

238 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 239 [Subsidiary] FOURTH SCHEDULE Judge adVoCate [Subsidiary] The judge advocate has been appointed by the Chief Justice.

Court martIal forms 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 Form I Convening order.

public service.* Form II Declarations under rules 101 and 102.

The record of the proceedings will be forwarded in an envelope marked Form III Summons to a witness to attend at a court martial.

condential to.

Form IV Notices requiring oral evidence to be given in lieu of a Signed this.

day of ., 19.

statutory declaration.

Form V Record of proceedings of a court martial.

Form VI Findings.

(Signature, rank and appointment of the convening ofcer) Form VII Record of reconsideration of nding under rule 78 (5).

or Form VIII Serving record of accused.

Form IX Record of proceedings on revision under section 110 of the Act.

(Signature, rank and appointment Form X Conrmation.

of the appropriate staff ofcer) Form XI Determination by a conrming ofcer or An ofcer authorized to sign for reviewing authority of a suspended sentence, and direction that sentences are to run concurrently or consecutively.

.

Form XII Restitution order.

(Appointment held by the Form XIII Promulgation.

convening ofcer) _ * Strike out if not applicable.

form I (r.

21 (a)) notes 1 Insert rank and name of convening ofcer.

2 CONVENING ORDER Insert number, rank, name and unit of the accused.

These particulars must agree with his description in the charge-sheet.

ConVenIng order for a Court martIal 3A member or a waiting member should be described by giving his rank,name and unit.

1 orders by.

form II (r.

101 (1)) Commanding.

(Place and date).

DECLARATIONS UNDER RULES 101 AND 102 _1 In the case of 2I (the ofcer who (is) (would be) The detail of ofcers as mentioned below will Name, etc., assemble at.

at.

of accused.

responsible for convening a court martial to try the accused) (the senior ofcer.

hours on the.

day.

on the spot) hereby declare that in my opinion the following exigencies of the service, namely.

of ., 19., for the purpose.

.

of trying by a court martial the accused person(s).

.

named in the margin.

.

render compliance with the following provisions of the Armed Forces presIdIng offICer Rules of Procedure-.

(paragraphs (2) and (3) of rule 24) * (rule 18) * members3 (subparagraphs (a), (b), (c) and (d) of rule 24 (4)) * impracticable.

Signed at.

this.

day of., 19.

.

(Signature) WaItIng member(s)3 *Delete as appropriate.

notes 1 Insert number, rank, name and unit of accused.

2 Insert rank, name and appointment of ofcer making the declaration.

240 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 241 [Subsidiary] [Subsidiary] 1 notes In the case of I .2 (the ofcer who (is) 1 Insert name and address of the person to whom the summons is to be sent.

(would be) responsible for convening a court martial to try the accused) (the 23 Here enter number, rank, name and unit of the person to be tried.

senior ofcer on the spot) hereby declare that in my opinion the 3 Specify the documents which the witness is to bring.

The words relating to.

documents should be deleted if not applicable.

contain(s) information the disclosure of which would or might be directly 4 or indirectly useful to an enemy.

Insert the appointment of the staff ofcer.

5 Insert appointment of ofcer for whom the staff ofcer is signing.

Signed at.

this.

day of ., 19.

form IV (r.

100) (Signature) notes 1 NOTICES REQUIRING ORAL EVIDENCE TO BE GIVEN Insert number, rank, name and unit of the accused.

2 IN LIEU OF A STATUTORY DECLARATION Insert rank, name and appointment of ofcer making the declaration.

3 Here indicate the document(s).

notICe by a CommandIng offICer 1 form III (r.

89 (3)) To.

23I.

Commanding.

4 SUMMONS TO A WITNESS TO ATTEND AT A COURT MARTIAL hereby give notice that I require that.

1 shall give oral evidence in lieu of (his) (her) statutory declaration dated To.

.

at your forthcoming trial by court martial.

Whereas a court martial (has been ordered to assemble at .) (has assembled at .) on.

the.

.

day of.

19., 2 (Signature and rank) for the trial of.

: (Commanding Ofcer of the Pursuant to section 228 of the Armed Forces Act and rule 89 of the Armed accused) 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.

(Date).

on the .day of ., 19 ., at.

oclock in the.noon 3 and to bring with you the documents hereinafter mentioned, viz.: notICe by an aCCused (r.

100).

.

23 and so to attend from day to day until you shall be duly discharged: whereof To.

Commanding.

1 you shall fail at your peril.

I.

hereby give notice that I require 4 that.

shall give oral evidence in lieu of (his) (her) statutory declaration dated Given under my hand at.

on the.

day.

at my forthcoming trial by court martial.

of ., 19.

.

(Signature, rank, appointment).

(An ofcer authorized to convene (Date) (Signature) a court martial) * notes (President of the Court)* 14 Insert number, rank, name and unit of the accused.

.

an ofcer authorized to sign for 5.

an ofcer authorized to convene 2a court martial.* Insert rank and name of commanding Ofcer.

*Strike out if not applicable.

3 Insert unit.

4 Insert name of witness.

242 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 243 [Subsidiary] form V (r.

90) (B) [Subsidiary] RECORD OF PROCEEDINGS OF A COURT MARTIAL Page 2 Page 1 sWearIng (A) The presiding ofcer, members of the court and judge advocate are duly sworn.

reCord of proCeedIngs of a Court martIal The (following) ofcers under instruction (listed on page ) 2 are duly sworn.

2Q.

Do you object toas shorthand writer? Proceedings of a court martial held at.

1A.

.

on the.day of ., 19.,.

is duly sworn as shorthand writer.

by order of.(Chief of General Staff) 2Q.

Do you object to.as interpreter? (Commander Kenya (Air Force) (Army) (Navy)).

A.

.

Dated the .day of ., 19.

is duly sworn as interpreter.

presIdent speCIal pleas and obJeCtIons members The accused offers a plea to the jurisdiction under rule 35.

The 2 Judge adVoCate proceedings relating to his plea are recorded on page.

The accused objects to the.charge(s) Trial of.

under rule 36.

The proceedings relating to his objection(s) are recorded on 2 page.

The court comply with rule 25.

The accused offers a plea(s) in bar of trial under rule 37 in respect 2 .not being available owing to of the charge(s).

The proceedings relating to his plea(s) are recorded 2 on page.

.

the presiding ofcer appoints a qualied waiting member to take his place.

The accusedapplies under rule 38 to be The accused is brought before the court.

tried separately.

The proceedings relating to his application are recorded on 2 page.

Prosecutor Defending (ofcer) (counsel).

The accused applies under rule 39 to have charges and tried separately.

The proceedings relating to his At hours the trial begins.

2 application are recorded on page.

The convening order is read in the hearing of the accused, marked notes .signed by the presiding ofcer and attached to the record.

1 If there is an objection the proceedings relating to it should be recorded on a The names of the presiding ofcer and members of the court are read in separate numbered page and the fact that this has been done should be recorded the hearing of the accused and they severally answer to their names.

in this space with the number of the page.

2Q.

Do you object to being tried by me as presiding ofcer, or by Strike out if not applicable.

any of the ofcers whose names you have heard read? A.

(C.

1) Page.

2 The proceedings relating to the objection(s) are recorded on pages arraIgnment.

The charge-sheet is read to the accused and he is arraigned on each notes charge.

1 The charge-sheet is signed by the presiding ofcer and inserted in the record Insert number, rank, name and unit of the accused as given in the charge-sheet.

immediately before this page, as page(s) 12 Strike out if not applicable.

Q.

Are you guilty or not guilty of the rst charge against you, which you have heard read? 244 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 245 [Subsidiary] A (D.1) [Subsidiary] Q.

Are you guilty or not guilty of the second charge against you Page 2 which you have heard read? 1A.

proCeedIng on plea(s) of not guIlty Q.

Are you guilty or not guilty of the third charge against you, Q.

Do you wish to apply for an adjournment on the ground that any of the 2 which you have heard read? rules relating to procedure before trial have not been complied with, A.

and that you have been prejudiced thereby, or on the ground that you Q.

Are you guilty or not guilty of the fourth charge against you, 2 have not had sufcient opportunity for preparing your defence? which you have heard read? AA.

Q.

Are you guilty or not guilty of the fth charge against you, 2 which you have heard read? The prosecutor (makes an opening address shortly outlining the facts) A (makes an opening address which is read, signed by the presiding ofcer, marked Q.

Are you guilty or not guilty of the sixth charge against you, 2 and attached to the record).

which you have heard read? A notes The accused pleaded guilty to the charge(s).

Remove this page if there are no pleas of not guilty.

Rule 41 is duly complied with in respect of this (these) charge(s).

22 The accuseds pleas to the remaining charges are recorded overleaf.

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 notes this has been done.

1 Strike out rst if there is only one charge.

2 Strike out if not applicable.

(D.

2) (C.2) Page.

Page.

The witnesses for the prosecution are called.

Q.

Are you guilty or not guilty of the seventh charge against you, 1 which you have heard read? First witness for the Being duly sworn1 says A prosecution.

Continued on page Q.

Are you guilty or not guilty of the eighth charge against you, 1 which you have heard read? notes AQ.

Are you guilty or not guilty of the ninth charge against you, 1 When a witness afrms the words having duly afrmed should be substituted for which you have heard read? the words being duly sworn, and when a witness is a child who is too young A to give evidence on oath the words without being sworn should be substituted Q.

Are you guilty or not guilty of the tenth charge against you, for the words being duly sworn.

1 which you have heard read? A (D.

3) Q.

Are you guilty or not guilty of the eleventh charge against you, 1 Page which you have heard read? A proCeedIngs on plea(s) of not guIlty1 Q.

Are you guilty or not guilty of the twelfth charge against you, 1 which you have heard read? (continued) An The prosecution is closed.

ote 1 Strike out if not applicable.

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 246 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 247 [Subsidiary] (D.5) [Subsidiary] defenCe Page.

Rule 58 is complied with.

proCeedIngs on plea(s) of not guIlty1 Q.

Do you apply to give evidence yourself on oath or do you wish to (continued) make a statement without being sworn? The (makes a closing address A.

.

which is summarized on page) (hands in a closing address Q.

Do you intend to call any other person as a witness in your which is read, marked.,signed by the presiding defence? ofcer, and attached to the record).

The (makes a closing A.

.

address which is summarized on page) (hands in a closing Q.

Is he a witness as to fact or to character only? address which is read, marked .signed by the presiding ofcer, and attached to the record).

A.

.

The note of the summing-up of the judge advocate is recorded on (Where the accused intends to call a witness as to fact, other than page.

2 himself).

fIndIng(s) 2 The court close to deliberate on their nding(s).

Q.

Do you wish to make an opening address? 3 The court nd that the accused.

4A.

.

.is The accused2 (makes an opening address which is summarized announCement of fIndIng(s) below) (hands in a written address which is read, signed by the President, marked.

and attached to the record).

The court being re-opened the accused is again brought before them.

notes The nding(s) (is) (are) read and (with the exception of the nding(s) of 21 Remove the page if there are no pleas of not guilty.

not guilty) (is) (are) announced as being subject to conrmation.

2 Strike out if the accused does not intend to call witness as to fact, other than proCeedIngs on aCquIttal on all Charges2 himself.

The accused is released.

(D.4) Signed at.

thisday of., 19.

Judge Advocate President Page.

1 notes (Where the accused makes a statement without being sworn).

The accused (makes a statement, which is recorded on page.) 1 Strike out this page if not applicable.

(hands in a written statement which is read, marked 2 Strike out if not applicable.

signed by the presiding ofcer, and attached to the record).

3 Insert number, rank, name and unit of the accused as given on the charge 1 sheet.

(Where evidence on oath is given for the defence).

4 Set out the nding on each charge in the appropriate form set out in the Fourth Schule to the Rules of Procedure.

The witnesses for the defence (including the accused, if sworn are called).

(E).

.

2 Page.

First witness for the being duly sworn says- proCeedIngs on plea(s) of guIlty1 2 defence.

Continued on page The accused 3 notes is found guilty of The nding(s) (is) (are) read in open court and (is) (are) announced as 1 Strike out this paragraph if not applicable.

being subject to conrmation.

2 (The abstract of evidence is read to the court by the prosecutor, 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 marked, signed by the presiding ofcer and attached to the record) (the prosecutor informs the court of the facts contained in the abstract who is too young to give evidence on oath, the words without being sworn should be substituted for the words being duly sworn.

of evidence which is marked signed by the presiding 4 ofcer and attached to the record).

248 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 249 [Subsidiary] [Subsidiary] notes (F.2) Page.

1 Strike out this page is not applicable.

proCeedIngs on ConVICtIon 2 Insert the number, name, rank and unit of the accused as given on the charge- sheet.

Note.

- F.2 should be completed before F.1 if the accused has pleaded 3 Record the nding on each charge of which the accused is found guilty in the not guilty to all charges.

appropriate form set out in the Fourth Schedule to the Rules of Procedure.

4 The prosecutor calls evidence as to the accuseds character and record.

Strike out if not applicable.

If this paragraph is struck out, rule 44 (2) must be complied with.

.

is duly sworn (F.1) Q.

Do you produce the Service Record of the accused? Page proCeedIngs on ConVICtIon AI produce NOTE.

F.2 should be completed before F.1, if the accused has pleaded Q.

Have you compared it with the service books? 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 A.

.

Q.

Do the entries in it correspond with the entries in the service ofcer may in his discretion complete F.2 before F.1 if there is no books? danger of the accused making an inconsistent plea.

Q.

Do you wish to give evidence yourself or to call other witnesses A.

as to your character or in mitigation of punishment? The.

is read, marked ,signed A.

by the presiding ofcer and attached to the record.

The evidence for the defence as to the accuseds character and in mitigation 1 The accused (declines) (elects) to cross-examine this witness (and the of punishment is recorded on pages Q.

Do you wish to address the court in mitigation of punishment? cross-examination is recorded on pages .).

A.

The prosecutor adduces evidence under rule 69 (3) which is recorded The.

(makes an address in mitigation of 1 on pages.

punishment, which is summarized (below) (on page.)) (hands in an address in mitigation of punishment, which is read, marked.

1 Final question addressed to the accused personally.* ., signed by the presiding ofcer and attached to the record).

The list of offences which the court have, at the request of the accused, Q.

Is there anything further you wish to say to the court?* 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.

A.

.* Final question addressed to the accused personally.* The accused makes a statement which is recorded on page.* The court close to deliberate on sentence.* Q.

Is there anything further that you wish to say to the court?* *Strike out if F.2 is completed before F.1A.

* note The accused makes a statement which is recorded on page* 1 Strike out this paragraph if the prosecutor does not adduce evidence under The court close to deliberate on sentence.* rule 69 (3) *Strike out if F.1 completed before F.2.

(G) notes Page.

1 sentenCe 21 Strike out this paragraph if not applicable.

The court sentence the accused.

2 Strike out this paragraph if the accused has not requested other offences to be taken into consideration.

to3.

250 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 251 [Subsidiary] announCement of sentenCe [Subsidiary] Acquittal on some but not all Charges The court being re-opened, the accused is again brought before them.

1 Not guilty of the.

charge(s) but is guilty of the 41 charge(s).

The sentence (and recommendation to mercy) (is) (are) announced in _ open court; the sentence is announced as being subject to conrmation.

1 Not guilty of the.

charge(s) and honourably The presiding ofcer announces that the trial is concluded.

1 acquit him thereof but is guilty of the.

charges(s).

Signed atthis.day of,19 Conviction on all Charges Guilty of (the charge) (all the charges).

Judge Advocate Presiding Ofcer notes Special Findings 11 Remove this page is not applicable.

Guilty of the.

charge (with the exception of the words 2 ) (with the exception that 22 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 a3 suspended sentence and directing whether the sentences are to run concurrently Not guilty of the offence charged but is guilty of.

or consecutively (see section 135 of the Act) made by the court, should be entered No Finding on Alternative Charge on the record immediately after the sentence.

4 Strike out if not applicable.

Guilty of thecharge; the court (H) record no nding on the (alternative charge).

Where the accused is unt to stand his trial by reason of insanity.

Page.

1 ConfIrmatIon By reason of insanity unt to stand his trial.

note Accused guilty but insane at the time when the offence was committed.

1 For minutes of conrmation see Fourth Schedule to Rules of Procedure.

Guilty but insane.

Promulgation should be recorded immediately below the minute of conrmation in accordance with rule 93 (7) (b).

notes 1 Insert the number of the charge or charges as numbered in the charge-sheet.

form VI (r.

65 (3)) 2 Specify the exception in detail.

This form is appropriate when a special nding fIndIngs is made under rule 64 (3).

Acquittal on all Charges 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.

Not guilty of (the charge) (all the charges).

_ Not guilty of (the charge) (all the charges), and honourably acquit him thereof.

252 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 253 [Subsidiary] form VII (r.

78 (5) (c)) 5.

His gross basic rate of pay (including additional pay) payable on a [Subsidiary] continuous basis is but he is RECORD OF RECONSIDERATION OF FINDING.

(insert forfeitures, deductions and allotments affecting his pay) The Judge Advocate advises the court that the nding(s) on the 1 charge(s) (is) (are) contrary to the law relating to the case, and 6.

The service which he is allowed to reckon towards discharge or transfer to reserve that in his opinion the following nding(s) (is) (are) open to them- is 27.

He is entitled to reckon service for the purpose of determining his pension and/or gratuity, etc.

The Court are closed for reconsideration of nding.

3 The Court on reconsideration nd that the accused is 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.

The nding(s) on reconsideration (is) (are) read in open court and (with 4 the exception of the nding(s) of not guilty ) (is) (are) announced as being He continously since .held the acting rank of subject to conrmation.

notes 10.

The highest rank for which he is qualied is 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 11.

He has been awaiting his trial for Strike out the words relating to ndings of not guilty if there is no such days of which nding.

.

days were spent in civil custody.

form VIII (r.

69 (2)).

days were spent in close arrest.

and.

days were spent in open arrest.

SERVICE RECORD OF ACCUSED 12.

He is not under sentence at the present time.

OR No.

.

Rank.

At the present time he is under sentence of Name.

beginning on the day of , 19.

Unit.

Trade.

but suspended on the.

day of ., 19.

1.

The date of his enlistment is.

and not yet put into operation again day of and he was commissioned on.

{ } Put into operation again on the ., 19 2.

He is serving on a (Insert nature and length of engagement) 13.

According to his conduct sheets he has been found guilty by his commanding ofcer, or by the commandant of a service establishment, 3.

His present age is.

of the following offences- Offence In last Since 12 months Enlistment 4.

He is married times times times times unmarried and has children under the age of 16 years.

times times divorced { } widowed OR There are no entries in his conduct sheets.

254 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 255 [Subsidiary] [Subsidiary] form IX (r.94 (1)) court, emitted are set out emitted RECORD OF PROCEEDINGS ON REVISION civil UNDER SECTION 110 OF THE ACT a by 1 (this should not At.

on the.

day of ., 19.

Punishment r include punishment for good conduct) at.

hours the court reassembled by order of service automatically r2.

.

the conrming ofcer for the purpose of reconsidering 3 his superior authority their nding(s) on the charge(s).

4 Present during opriate.

guilty d of appr The order directing the reassembly of the court and giving the reasons found by an appropriate superior authority Sentence of the court awar therefor is read, marked ., signed by the presiding ofcer and attached to the record.

been has The court having considered the observation of the conrming ofcer and he the whole of the record of the proceedings do now revoke their nding(s) on the 35.

charge(s) and nd that the accused which 6 or.

is of.

consideration.

ges upon which found 7 and (adhere to their sentence) (sentence the accused to.

martial, Char guilty and offences taken into.

in substitution for the original sentence).

court a fences of which he has been found guilty or by d by The court having considered the observation of the conrming ofcer 3 respectfully adhere to their nding(s) on the.

charge(s) convicted 5 (and to their sentence) (but sentence the accused.

7 to.

in substitution for the original sentence).

been opriate superior authority has by such courts and of appr or he Date and place of trial or summary awar that the particulars in this Schedule are true extracts from the service books in my custody The court having considered the observation of the conrming which TIFY ofcer and the whole of the record of the proceedings do now revoke their of 3 nding(s) on the.

charge(s) and nd the accused 5 into consideration CER.

not guilty of (that) (those) charge(s).

fences of 1 Signed at.

this.

day of ., 19 of authority opriate superior I HEREBY.

.

fences taken Description of court appr Judge Advocate Presiding Ofcer Schedule of below- 14.

Signed this.

day of ., 19.

Signature (Name, rank and appointment) 256 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 257 [Subsidiary] notes [Subsidiary] 17 Insert the name of the place.

Not conrmed (on the grounds that .).

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.

I conrm the nding(s) of the court on the.

charge(s) If the presiding ofcer is absent the senior members must report to the conrming but do not conrm their nding(s) on the.

ofcer.

If a member is absent and the court is thereby reduced below the legal 7 charge(s) (on the grounds that.

).

I conrm the minimum the presiding ofcer must report to the conrming ofcer.

125 sentence but (remit ) (commute ).

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 3 Fifth Schedule.

I refer the nding(s) and sentence to for conrmation.

_ form X (r.

93 (1)) CONFIRMATION I conrm the nding(s) of the court on the Note.

These forms are for guidance only and do not constitute an charge(s) and refer the nding(s) on the charge(s) 8 exhaustive list of all the possible variations and should be adapted to and the sentence to for conrmation.

the circumstances of each case.

_I conrm the nding(s) of the court but refer the sentence to 8.

for conrmation.

Conrmed.

_I conrm the courts nding(s), sentence and order under section 104 1 of the Armed Forces Act, but (remit ) 2 (r.

95 (3)) (commute .).

(The record) (Part of the record) of the proceedings of the trial by court _ martial which tried.

at.

on the day of , I conrm the courts nding(s), sentence and order under section 104 of 19, having been lost, I do not conrm the nding(s) of the court.

the Armed Forces Act, but mitigate the sentence so that it shall be as follows- 3_ Signed at.

this.

day of ., 19 I vary the sentence so that it shall be as follows.

4.

and conrm the nding and sentence as so varied.

(Signature, rank and appointment of _ Conrming Ofcer) notes I conrm the nding(s) and sentence but (postpone the carrying out of 15 State what part of the sentence is remitted.

the sentence of.

until ) (suspend the sentence 2 State what the sentence is commuted to.

of .).

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 I conrm the nding(s) but substitute the sentence of 6 informally or incorrectly and the conrming ofcer desires to put it into the for the sentence of the court.

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 I substitute a nding of sentence.

1 for the nding of the court and conrm the sentence but (remit.

) 72 Where a conrming ofcer withholds conrmation because he disapproves of (commute ).

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.

8I substitute a nding of for the Insert the appointment of the higher authority to whom the matter is to be referred.

nding of the court on the charge and conrm the 9 The rank and appointment of the conrming ofcer should be clearly stated nding(s) on the other charge(s) and the sentence.

after or under his signature.

258 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 259 [Subsidiary] form XI FIFTH SCHEDULE [Subsidiary] DETERMINATION BY A REVIEWING AUTHORITY OF A SUSPENDED SENTENCE AND DIRECTION THAT SENTENCES ARE sentenCes TO RUN CONCURRENTLY OR CONSECUTIVELY1 UNDER SECTION 135 (6) OF THE ACT Part I.

Sentences.

Part II.

Restitution Order.

_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 PART IENTENCE (r.

72 (1)) the day of ., 19., and direct that Note.- The words in the margin should be entered in the right-hand margin of that sentence and the sentence passed on the accused by (this court martial) the record of the proceedings of a court martial opposite the record of (court martial held at.

on.

the sentence.

day of ., 19.) shall run (concurrently) (consecutively).

Ofcers Dated ., 19 To suffer death.

Death.

(Signature) _ note 1 When the determination is made by the reviewing authority it should follow the To be imprisoned for.

Imprisonment.

minute of promulgation.

_ form XII To be dismissed from the armed forces.

Dismissed.

RESTITUTION ORDER1 UNDER SECTION 104 OF THE ACT _ To be reduced to the rank of Reduction in rank.

In accordance with subsection of 2 section 104 of the Armed Forces Act, I.

3_ hereby order that.

be (delivered) (paid) to.

To take seniority in the rank of Forfeiture of.

as if his appointment seniority of rank.

Dated ., 19 (Signature) to that rank bore date the day of , 19 _ Conrming Ofcer.* Reviewing Authority.* *Strike out if not applicable.

To be ned Fine.

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 To be (severely reprimanded) Severe reprimand or ofcers minute of conrmation; when made by a reviewing authority it should (reprimanded).

reprimand.

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 To be admonished.

Admonition.

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.

To be put under stoppages of Stoppages.

4.

Insert name of person to whom restitution is being made.

pay until he has made good the 1 sum of in 2 from XIII (r.

93 (8)) respect of PROMULGATION Promulgated and extracts taken at (place).

this.

day of ., 19.

(Signature, rank and appointment of Ofcer making the promulgation) 260 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 261 [Subsidiary] Servicemen 2.

By the Court [Subsidiary] To suffer death.

Death.

In accordance with subsection.

of section 104 of the 3 Armed Forces Act, the court hereby order that.

be To be imprisoned for Imprisonment (and reduction (delivered) (paid) to (and to be reduced to the ranks).

to the ranks).

notes To be dismissed from the armed forces.

Dismissal.

1(a) This form of words should be inserted in the record of the proceedings.

To undergo active service punishment Active service punishment.

(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 for days.

that this order shall be carried out forthwith.

2 To be reduced (to the ranks) (to the or reduction in rank.

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 rank of .) or reduction in rank.

be.

4 Insert name of person to whom restitution is to be made.

5 To take seniority in the rank of.

Forfeiture of seniority of Delete as required.

as is his appointment to that rank bore rank.

date the.

day of , 19.

SIXTH SCHEDULE To be ned Fine.

oaths and affIrmatIons To be (severely reprimanded) Severe reprimand or (reprimanded).

reprimand.

PART I.

Oaths at Investigations by Commanding ofcers and Appropriate Superior Authorities.

To be admonished.

Admonition.

PART II.

Oaths at Courts Martial.

To be put under stoppages of pay Stoppages.

PART III.

Manner of Administering the Oath.

until he has made good the sum of 1.

in respect 2 PART IV.

Solemn Afrmations.

of.

_ notes PART IOATHS AT INVESTIGATIONS BY COMMANDING 1 Insert the amount which has to be made good by stoppages in respect of the charge OFFICERS AND APPROPRIATE SUPERIOR AUTHORITIES or article specied.

(r.

33 (1)) 2 Specify the charge or article in respect of which the stoppages is to be imposed.

Interpreter If stoppages are being imposed in respect of more than one charge or article the I swear by Almighty God that I will to the best of my ability truly amount which has to be made good in respect of each charge or article must be stated separately.

interpret and translate, as I shall be required to do, touching the matter being investigated.

PART IIRESTITUTION ORDER1 Witness I swear by Almighty God that the evidence which I shall give at this 1.

By the Commanding Ofcer or Appropriate Superior Authority investigation shall be the truth, the whole truth and nothing but the truth.

In accordance with subsection.

of section PART IIOATHS AT COURTS MARTIAL (r.

33 (1)) 104 of the Armed Forces Act, I,.

2 hereby order that 3 be (delivered) (paid) to Presiding Ofcer and Members .4.

.

I swear by Almighty God that I will well and truly try the (accused) (Commanding Ofcer) (accused persons) before the court according to the evidence, and that I will (Appropriate Superior Authority) 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 262 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 263 [Subsidiary] any time whatsoever disclose or discover the vote or opinion of the presiding SEVENTH SCHEDULE [Subsidiary] ofcer or any member of this court martial, unless thereunto required in due course of law.

petItIons Judge Advocate PART I.

Petitions.

I swear by Almighty God that I will to the best of my ability carry out PART II.

List of Persons to whom Petitions may be Presented under rule 99.

_ 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 PART IPETITIONS (r.

99 (1)) 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 Petition to conrming ofcer (before conrmation) under section 106 of this court martial, unless thereunto required in due course of law.

of the Act and rule 99 (1).

Ofcer under Instruction to the ConfIrmIng offICer 1I having been convicted by court I swear by Almighty God that I will not on any account, at any time 23 martial on at and having whatsoever disclose or discover the vote or opinion of the presiding ofcer or any been sentenced to.

hereby petition against member of this court martial, unless thereunto required in due course of law.

the nding(s) on the charge(s) 4 (and the sentence) Shorthand Writer on the following grounds- 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.

Signed .8 Interpreter Date I swear by Almighty God that I will to the best of my ability truly 5 Petition to the reviewing authority (after conrmation and promulgation), interpret and translate, as I shall be required to do, touching the matter before under section 106 of the Act and rule 99 (2).

this court martial.

Witness (r.

99 (2)) 6 To.

I swear by Almighty God that the evidence which I shall give before this 1I having been convicted by court martial shall be the truth, the whole truth, and nothing but the truth.

court martial on 2 at 3 PART IIIMANNER OF ADMINISTERING THE OATH and having had the nding(s) and sentence promulgated to me on 7.

hereby petition against the nding(s) on the Persons taking the oath shall say to or repeat after the person administering charge(s)4 (and the sentence) on the oath the words of the oath with such variations in the opening words of the the following grounds- 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 Signed 8 The person making a solemn afrmation shall say to or repeat after the person administering the solemn afrmation the words of the appropriate form Date 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 Petition to the commander (after conrmation and promulgation), under and for the word swear wherever it occurs, the words solemnly, sincerely section 112 of the Act and rule 99(3).

and truly declare and afrm.

264 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 265 [Subsidiary] to the Commander [Subsidiary] I.

1 having been convicted by court THE ARMED FORCES (COURT MARTIAL APPEALS) L.N.

255/1969.

23 martial on.

at and having been RULES sentenced to.

and having had the nding(s) and sentence promulgated to me on hereby 1.

These Rules may be cited as the Armed Forces (Court Martial Appeals) Citation.

petition for reconsideration of the sentence on the following grounds- Rules.

2.

In these Rules, except where the context otherwise requires Interpretation.

Signed court means the High Court; Date exhibits means all documents and things which have been produced n and used in evidence at a trial by court martial, whether they are attached to otes the proceedings of the court martial or not; 1 Insert the accuseds number, rank, name and unit.

2 Insert the date when accused was convicted.

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 Insert the place where the trial was held.

3.

An application by a person convicted for leave to appeal to the court Application for leave 4The words the nding(s) on the charge(s) should be under section 116 of the Act shall be in Form 1 in the Schedule, and shall contain to appeal.

omitted if the accused is only petitioning against sentence.

answers to the questions and comply with the requirements set forth therein.

5 The reviewing authority will be either the Defense Council or any ofcer superior 4.

A notice of application to the High Court for an extension of time Extension of time.

in command to the conrming ofcer; see section 111 (2) of the Act.

within which to make application for leave to appeal shall be in Form 2 in the 6 Here state the reviewing authority whom it is desired to petition.

Schedule, and shall be sent to the Registrar.

75.

An appeal by the AttorneyGeneral under section 115 (2) of the Act Form of appeal by Insert the date when the ndings and sentence were promulgated.

shall be in Form 3 in the Schedule.

AttorneyGeneral.

8 Petitions should be signed by the accused personally but may if necessary, be signed on his behalf by his representative.

6.

(1) A person convicted, at any time after he has made application for Abandonment of 9 leave to appeal, or the Attorney-General, may abandon his appeal by giving to appeal.

Insert Kenya Air force, Kenya Army or Kenya Navy as the case may be.

the Registrar notice of abandonment thereof in Form 4 in the Schedule.

PART IILIST OF PERSON TO WHOM PETITIONS (2) Where it is contended that the person convicted is insane a notice of MAY BE PRESENTED (r.

99 (4)) abandonment may be given and signed by his legal representative.

Circumstances Person to whom a petition (3) Subject to paragraph (2), a notice of abandonment shall be signed by may be presented the person convicted himself.

1.

Petitioner serving in or in Captain of the ship.

7.

(1) An application for leave to appeal and any notice required or Notices.

custody on board a ship of the Kenya Navy.

authorized to be given to the court under these Rules, other than a notice 2.

Petitioner in custody on Ofcer commanding forces on of abandonment, shall be signed by the person convicted or by his legal board a ship other than a board.

representative, or by the Attorney-General, as the case may be.

ship of the Kenya Navy.

(2) An application for leave to appeal and any notice required or 3.

Petitioner serving with a Ofcer commanding the unit.

authorized to be given to the court under these Rules shall be addressed to the unit of the Armed forces.

Registrar.

4.

Petitioner conned in a Ofcer in charge of the prison.

civil prison.

5.

Petitioner who is a civilian Ofcer commanding at the nearest (3) Where a person convicted, or any other person required or authorized and is outside Kenya.

Armed Forces headquarters.

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 266 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 267 [Subsidiary] [Subsidiary] shall attest the mark, and thereupon such application or notice shall be deemed application such document and exhibit and the proceedings of the court martial to be signed by that person.

shall be open, as and when the Registrar may arrange, for inspection by the person convicted or by the Attorney-General.

Court martial 8.

(1) The Registrar, on receipt of an application for leave to appeal, shall request the Commander to forward to him the proceedings of the court proceedings.

martial and any petition presented by the person convicted praying that his (2) Subject to rule 11, the court may, at any stage of an appeal, whenever conviction be quashed.

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.

(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 (3) After an application is nally refused or is withdrawn, or the appeal petition shall, subject to any order which the court may make, be returned by the Registrar to the Commander.

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 (3) A copy of any document which is required for the use of the court produced or forwarded them.

shall be made by such person and in such manner as the Registrar may direct.

(4) Service of any order made under this rule shall be personal service 9.

(1) At any time after the Registrar has received an application for leave unless the court otherwise orders.

Copies of to appeal, the person convicted or the Attorney-General may, subject to these proceedings.

11.

If the Minister certies that, for reasons of security, the whole or part Security of Rules, obtain from the Registrar copies of any document in the possession of of the proceedings, or any document, exhibit or other thing, ought not to be the Registrar for the purpose of the appeal.

documents, etc.

disclosed otherwise than to the court, or ought only to be disclosed subject to (2) Copies of any document shall be supplied by the Registrar at the certain conditions specied by the person who so certies, the Registrar shall, charges following- 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, (a) for making and certifying a copy of any document or certifying a inspection shall be permitted or a copy supplied.

copy not prepared by court or court martial 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 Sh.

cts.

question on the ground that the disclosure of the document or the answering of (i) for rst folio or part thereof.

.

5 00 the question would be injurious to the public interest.

(ii) for each subsequent folio or part thereof.

.

.

.

.

2 50 13.

(1) An order of the court that a witness shall attend and be examined Witnesses.

(b) for making uncertied copy of any document shall be in Form 5 in the Schedule, and shall specify the time and place at which such witness shall attend.

Sh.

cts (2) Such an order may be made on the application at any time of the (i) for rst four folios or part thereof.

.

.

3 00 (ii) for each subsequent folio or part person convicted or of the Attorney-General, but if the person convicted is in thereof.

.

.

.

.

.

.

.

75 custody and is not legally represented the application shall be made by him in Form 6 in the Schedule.

Provided that, if such uncertied copy later requires to be certied, (3) Service of any order required by this rule to be given to any witness the certifying fees shall be the difference between fees and the fees under subparagraph (a); shall be personal service, unless the court otherwise orders.

(c) for making copies by photostat process.

14.

(1) The Registrar shall keep a register of all cases in which he Register and cause Actual cost 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.

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 (2) The Registrar shall also publish a list of appeals and applications proper determination of any appeal or application, and shall, where so directed which the court may consider on the days on which the court, as constituted by the court, obtain and keep available for use by the court any document or for the hearing and determination of appeals under the Act, shall sit; and shall exhibit; and, subject to rule 11, pending the determination of the appeal or cause such list to be published at such times and in such places and in such a 268 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 269 [Subsidiary] directs.

Rules.

[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.

(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 Presence of person 15 (1) Where the person convicted is in custody and has obtained the leave rule, where he was not present at the time when such directions were given.

convicted at hearing.

of the court to be present at the hearing and determination of his application or 20.

The performance of any duty imposed upon any person under Part Enforcement of appeal, or at any stage thereof, the Registrar shall notify the person convicted, the IX of the Act or these Rules may be enforced by order of the court.

duties.

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 SCHEDULE court in any case where in the opinion of the court his presence is advisable for Form 1 (r.

3) the proper determination of the appeal.

Notifying results of 16.

(1) On the nal determination of any appeal or of any application, applICatIon for leaVe to appeal agaInst ConVICtIon the Registrar shall, unless it appears to him unnecessary to do so, give to the or sentenCe appeals, etc.

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.

To The Registrar of the High Court, Nairobi, (2) In the case of an appeal against a conviction involving sentence of Kenya.

death, the Registrar shall, on receiving an application for leave to appeal, send (a) If person a copy thereof to the President and, where leave to appeal is refused and on Name of person convicted.

convicted not in the nal determination of an appeal, shall forthwith give written notice to the Number .UnitRank.

person convicted and to the President and to the person in charge of the place custody, insert his Convicted by court martial held at.

address.

the person convicted is conned.

Offence of which convicted.

17.

(1) Where any property or money has been ordered to be restored or Sentence.

(b) Set out clearly Restitution order.

Date when conviction pronounced or nding promulgated.

and concisely the handed over under section 104 of the Act, and the operation of the order has Date when petition presented reasons why you 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 Date when notied that petition refused.

consider your to be kept in safe custody or the period during which the operation of the order Name of prison or place of detention (a).

conviction should is suspended.

be quashed or the sentence varied.

(2) Any person in whose favour or against whom an order has been made (c) This notice under section 104 of this Act, and with the leave of the court any other person, I, the above-named person, hereby apply for leave to appeal to the High must be signed shall, on the nal hearing by the court of the appeal against the conviction on Court against my [conviction] [and] [sentence] on the following grounds (b) by the person 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 convicted or his legal (9) (ii) of that section.

.

representative.

If the (Signed) (c) person convicted cannot write he Right of audience.

18.

In any proceedings before the court, any of the following persons may address the court- must afx his mark in the presence of a (a) an advocate retained by or on behalf of the person convicted; witness.

The name and address of such (b) the person convicted, if he has the leave of the court; and attesting witness must be given.

(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 270 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 271 [Subsidiary] [Subsidiary] Dated the (d) day of ., 19 grounds on which (d) If this form is Dated the.

day of , 19 you submit the High lodged more than Court should extend forty days after the (Signed) (e) the time.

person convicted [Form 1 must be lled up and sent with this notice to the Registrar.] (e) This notice has become entitled must be signed to apply for leave by the person to appeal he must convicted or his legal representative.

If the also ll in Form 2 person convicted and send it with this cannot write he form.

must afx his mark (e) The person Questions (e) Answers in the presence of a convicted must 1.

Is any advocate or other person witness.

The name answer these Now acting for you? and address of such questions.

attesting witness must be given.

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 Form 3 (r.

5) witness on your appeal? appeal by the attorney-general agaInst a persons aCquIttal or sentenCe If your answer to this question is Yes, you must ll in Form 6 and send it with this form To The Registrar of the High Court, Nairobi, Form 2 (r.

4) Kenya.

notICe of applICatIon for eXtensIon of the WIthIn Name of person acquitted or sentenced WhICh to apply for leaVe to appeal agaInst.

ConVICtIon and/or sentenCe Number Unit.

Rank.

Tried by court martial held at.

.

To The Registrar of the High Court, Offence for which tried.

Nairobi, Acquitted [or] sentenced to.

Kenya.

Date when acquitted or sentenced or nding promulgated.

(a) If person (a) Insert name, I, (a).

having been convicted.

convinced not in Name of prison or place of detention (a).

number, rank and of the offence of (b.

unit.

custody, insert his (b) State shortly the.

The Attorney-General hereby appeals against the acquittal [or] sentence address.

and sentenced to.

by court offence or offences.

specied above of the person named above, on the following grounds (c) Set out address martial held at on the , 19., in full.

and being now at (c) ., Dated the.

day of ., 19.

(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 the reasons for the which I may give notice of application for leave to appeal, on the grounds following Attorney-General delay in giving (d).

notice, and the 272 CAP.

199 Armed Forces [Rev.

2009 Rev.

2009] Armed Forces CAP.

199 273 [Subsidiary] Form 4 (r.

6) [Subsidiary] To (a).

(a) Name and address notICe of abandonment of appeal WHEREAS, on good cause shown to the High Court of Kenya, you of witness.

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 To The Registrar of the High Court, by the Attorney-General following the proceedings at the court martial of person convicted Nairobi, (b).] (c) or acquitted as Kenya.

appropriate.

I NOW give you notice to attend before the court at.

(c) Delete as Name of person convicted.

.oclock in the.

noon on the.day of appropriate.

Number Unit Rank.

, 19, at (d) (d) Insert location of Convicted by court martial held at.

court.

Offence of which convicted.

I ALSO REQUIRE YOU to have with you at the said time and place the (a) If person Name of prison or place of detention (a).

following books, papers and other things relating to the appeal- convicted not in or present address of person convicted.

custody, insert his Dated the.

day of ., 19 address.

.

(b) Delete as I, the above-named person, having been convicted and sentenced and Registrar of the High Court 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 Form 6 (r.

13) the date hereof.

applICatIon to Call further eVIdenCe made by a person ConVICt- Dated the.

day of ., 19.

ed WhIlst In Custody (Signed)(c) To The Registrar of the High Court, (c) If this notice is Nairobi, presented by or on Kenya.

behalf of a person I, (a) having applied for leave (a) Insert name, convicted it must be This notice was signed by the person convicted on the day above stated number, rank and signed by him in the in my presence.

to appeal to the High Court, hereby give notice that I desire the court to order unit.

presence of a witness.

the following witness(es) to attend before the court and be examined on my behalf.

Signature of Witness.

Dated the.

day of , 19.

Address of Witness.

(Signed).

Occupation of Witness.

(b) If more than one You are requested to complete the following form (b) _ witness is desired, the information must 1.

Name and address of witness.

be given in respect of Form 5 (r.

13).

each witness.

2.

Was the witness examined at your court martial? order to WItness to attend for eXamInatIon 3.

If not, state the reason why he was not examined.

.

4.

State shortly the evidence you think he can give.

To The Registrar of the High Court, Nairobi, Kenya.

.