Related documents
- Is amended by 24th Annual Supplement
LAWS OF KENYA
MUTUAL LEGAL ASSISTANCE ACT
CAP. 75A
- Published in Kenya Gazette Vol. CXIII—No. 119 on 9 December 2011
- Assented to on 11 November 2011
- Commenced on 2 December 2011
- [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
- [Amended by Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) Act, 2023 (Act No. 10 of 2023) on 15 September 2023]
Part I – PRELIMINARY
1. Short title
This Act may be cited as the Mutual Legal Assistance Act.2. Interpretation
In this Act, unless the context otherwise requires—"Central Authority" means an authority established under section 5 of this Act;"Competent Authority" means the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the Gazette;"communications" includes telecommunications and the transmission of an item through the public postal service;"communications data" includes—(a)traffic data;(b)subscriber information;(c)any information not falling within paragraph (a) or (b) that is held or obtained by the provider of a postal service or a telecommunications service and which relates to the provision of that service but does not include content data;"confiscation proceedings" means proceedings, whether civil or criminal, for an order to—(a)confiscate any property derived or obtained whether directly or indirectly from an offence or used in, or in connection with, the commission of an offence; or(b)impose a pecuniary penalty calculated by reference to the value of any property derived or obtained whether directly or indirectly from an offence or used in, or in connection with, the commission of an offence;"content data" means the subject or purpose of the communication, or the message or information being conveyed by the communication, whether or not any interpretation, process, mechanism or device needs to be applied or used to make the meaning of the communication intelligible;"covert surveillance" means surveillance carried out in a manner that is calculated to ensure that the persons who are subject to the surveillance are unaware that it is or may be taking place;"covert electronic surveillance" means covert surveillance carried out by or with an electronic surveillance device which transmits records or otherwise captures audio product or visual images, but does not include either surveillance by a tracking device which only provides the location or position, or the interception of telecommunications;"criminal matter" means an investigation, prosecution or judicial proceedings relating to a criminal offence and includes an investigation, prosecution or proceedings relating to—(a)the forfeiture or confiscation of proceeds of crime;(b)the imposition or recovery of a pecuniary penalty in respect of a prescribed offence;(c)the tracing, freezing and restraint of property that may be forfeited or confiscated.“designated non-financial business or profession” has the meaning assigned to it under section 2 of Proceeds of Crime and Anti-Money Laundering Ac (Cap. 59A);"dual criminality" means conduct which would constitute an offence under the laws of Kenya and requesting a requesting state;"freezing" means to prohibit the transfer, conversation, disposition, or movement of funds or other assets on the basis of, and for the duration of the validity of an action initiated by the appropriate authority or a court;"instrumentality of crime" means any property—(a)used in, or in connection with, the commission of an offence or unlawful activity; or(b)intended to be used in, or in connection with, the commission of an offence or unlawful activity."interception of communications" means the disrupting, destroying, opening, interrupting, suppressing, stopping, seizing, recording, copying, listening to and viewing of communications in the course of its transmission so as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication;"international entity" includes any court or tribunal set up by an international instrument and includes any investigatory, prosecutorial or adjudicatory organ of such court or tribunal;"offence" means criminal conduct under the laws of Kenya;"postal item" means any letter, parcel, package, or other thing which is being or will be carried by a public postal service;"postal service" means any service which—(a)consists in the collection, sorting, conveyance, distribution and delivery of postal items; and(b)is offered or provided as a service the main purpose of which, or one of the main purposes of which, is to make available, or to facilitate, a means of transmission from place to place of postal items containing communications."preservation of communications data" means the protection of communications data which already exists in a stored form from modification or deletion, or from anything that would cause its current quality or condition to change or deteriorate:Provided that communications data that is stored on a highly transitory basis and already exists in a stored form as an integral function of the technology used in its transmission shall not be communications data for the purposes of this definition;"proceeds of crime" includes any property, benefit or advantage that is wholly or partly obtained, derived or realised directly or indirectly as a result of the commission of a criminal act or omission;"public postal service" means any postal service which is offered or provided to the public, or to a substantial section of the public;"requesting state" means a state requesting for legal assistance and may for the purposes of this Act include an international entity to which Kenya is obligated;"requested state" means a state being requested to provide legal assistance under the terms of this Act;"seizure" means freezing coupled with the administration, control, possession, or management of the funds or other assets;"telecommunication" means a communication transmitted or received by means of guided or unguided electromagnetic or other forms of energy;"telecommunications service" means a service provided to any person for transmitting and receiving telecommunications, being a service, the use of which enables communications to be transmitted or received over a telecommunications system operated by a service provider."telecommunications system" means any system, including the apparatus comprised in it, which exists, whether wholly or partly in Kenyan territory or in a requesting state, for the purpose of transmitting and receiving telecommunications;"traffic data" means computer data—(a)that relates to a communication by means of a computer system; and(b)is generated by a computer system that is part of the chain of communication; and(c)shows the communication’s origin, destination, route, time, date, size, duration or the type of underlying services."stored communication" means the content data that is no longer in the course of transmission and which has been stored in a form allowing retrieval;"subscriber information" means any information that is held by a provider of a postal service or telecommunications service relating to subscribers to its services and by which a subscriber’s identity, affairs or personal particulars can be established, but does not include traffic data."surveillance" includes—(a)monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;(b)recording anything monitored, observed or listened to in the course of surveillance; and(c)surveillance by or with the assistance of a surveillance device.[Act No. 10 of 2023, Sch.]3. Scope of application
This Act shall—4. Limitations with respect to scope of application
Notwithstanding the provisions of section 3 of this Act nothing shall be construed to preclude Kenya from—Part II – ESTABLISHMENT OF CENTRAL AUTHORITY
5. Central Authority
6. Functions of Central Authority
Part III – MAKING AND EXECUTION OF LEGAL ASSISTANCE REQUESTS
7. Request from Kenya
8. Incoming requests for legal assistance
9. Content of request for legal assistance
10. Postponement of the execution of request
The Competent Authority may postpone the execution of the request if its immediate execution would interfere with an ongoing investigation or prosecution.11. Grounds for refusal
A request for legal assistance under this Act shall be refused if, in the opinion of the Competent Authority—Part IV – REQUEST FOR SPECIFIC FORMS OF LEGAL ASSISTANCE
12. Service of documents
13. Provision or production of Records
14. Examination of witnesses
15. Attendance of witness in requesting state
16. Voluntary attendance of persons in custody
17. Exception for Kenyan citizens or young persons
Section 16 shall not apply in respect of a person who, at the time the application is presented, is a Kenyan citizen or a child within the meaning of the Children Act (Cap. 141).18. Search and seizure
19. Lending of exhibits
20. Presumption of continuity
The burden of proving that an exhibit, lent to a requesting state pursuant to a request under section 19 and returned to Kenya, is not in the same condition as it was when the lending was made or that it was tampered with after the lending was made shall be on the party who makes that allegation and in the absence of that proof, the exhibit shall be deemed to have been continuously in the possession of an authorized person or authority.21. Defence request
22. Use of video conferencing technology
A testimony, identification of a person or thing or any other form of legal assistance under this Part may be provided by use of video or audio transmission technology.Part V – RECOVERY, FREEZING, CONFISCATION AND DISPOSAL OF ASSETS
23. Identification, tracing etc.
24. Measures for asset recovery through international co-operation
When providing legal assistance under section 23 with respect to proceeds and instrumentalities of crime, Kenya shall take such measures, in accordance with the provisions of this Act or any other relevant law, as may be necessary to—25. Refusal of co-operation
In addition to the grounds of refusal set out in this Act, co-operation under this Part may be refused if a requesting state does not provide sufficient and timely evidence or if the property is of an insignificant value.26. Return and disposal of assets
Part VI – INTERCEPTION OF COMMUNICATIONS, PRESERVATION OF COMMUNICATIONS DATA AND COVERT ELECTRONIC SURVEILLANCE
27. Interception of telecommunications
28. Stored communications
Nothing in this Part shall preclude a requesting state from making a request for legal assistance in accordance with Kenyan law for the provision of stored communications.29. Interception of items during the course of carriage by a public postal service
For the purpose of a criminal investigation, a requesting state may, in accordance with the requirements of this Act or any other relevant law, make a request to Kenya for the interception of an item during the course of its carriage by a public postal service and immediate transmission of the said item or a copy thereof.30. Bilateral or multilateral arrangements
Nothing in this Part shall preclude any bilateral or multilateral arrangements for the purpose of facilitating the exploitation of present and future technical possibilities regarding the lawful interception of telecommunications.31. Preservation of communications data
32. Covert electronic surveillance
Part VII – ADMISSIBILITY IN KENYA OF EVIDENCE OBTAINED ABROAD
33. Foreign records
34. Foreign things
A thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a requesting state as to the identity and possession of the thing from the time it was obtained until its sending to the Central Authority by the a requesting state in accordance with a Kenyan request, are not inadmissible in evidence in a proceeding with respect to which the court has jurisdiction by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.35. Status of affidavit, certificate etc.
36. Proof of service abroad
The service of a document in a requesting state may be proved by affidavit of the person who served it.37. Special authorization to come to Kenya
38. Immunities
39. Privilege for foreign records
Part VIII – GENERAL PROVISIONS
40. Dual criminality and reciprocity
Kenya shall adopt such measures as may be necessary to enable it to provide a wider scope of legal assistance to a requesting state in absence of dual criminality and reciprocity.41. Rule of specialty
A requesting state shall not transmit to another party or use any information or evidence obtained in response to a request for legal assistance under this Act in connection with any matter other than the criminal matter specified in the request without the prior consent of Kenya.42. Confidentiality
The confidentiality of a request and its contents and the information and materials supplied under this Act shall be maintained except for disclosure in the criminal matter specified in the request and where otherwise authorized by the other state.43. Fiscal offences
Legal assistance shall not be refused solely on the grounds that the offence amounts to an offence of a fiscal nature or on the grounds of bank or other financial institution or Designated Non-Financial Business or Profession secrecy or confidentiality rules.[Act No. 10 of 2023, Sch.]44. Language
The documents in support of a request for legal assistance made under this Act shall be in English language.45. Costs
46. Applicable law
The law of Kenya shall govern the procedure for complying with a request and the admissibility of evidence to be gathered under this Act.47. Transmission and return of material
48. Special co-operation
Subject to any written law and without prejudice to its own investigations, prosecutions or judicial proceedings, Kenya shall take measures to permit it to forward information on proceeds of criminal offences to a requesting state without prior request, where it considers that—49. Consultation in event of concurrent jurisdiction
50. Principles of mutuality and reciprocity
For the purposes of this Act, the principles of mutuality and reciprocity shall at all times be recognized.51. Request for legal assistance not to cover arrest or extradition
Nothing in this Act shall be construed as authorizing the extradition, or the arrest or detention with a view to extradition of any person.52. Regulations
The Attorney-General may make regulations prescribing matters necessary or convenient for the better carrying out, or giving effect to this Act.History of this document
15 September 2023 this version
31 December 2022
Revised by
24th Annual Supplement
Read this version
09 December 2011
02 December 2011
Commenced
11 November 2011
Assented to
Cited documents 4
Act 4
1. | Proceeds of Crime and Anti-Money Laundering Act | 315 citations |
2. | Kenya Citizenship and Immigration Act | 216 citations |
3. | Prisons Act | 71 citations |
4. | Children Act | 42 citations |
Documents citing this one 22
Judgment 10
Gazette 8
Act 2
1. | Extradition (Contiguous and Foreign Countries) Act | 17 citations |
2. | Extradition (Commonwealth Countries) Act | 7 citations |
Legal Notice 2
1. | The Statutory Instruments (Exemption from Expiry) Regulations | 1 citation |
2. | The Statutory Instruments (Exemption from Expiry) Regulations |