The Kenya Defence Forces (Imprisonment) Regulations

Legal Notice 236 of 2017

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Legal Notice 236 of 2017
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Kenya Defence Forces Act
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LAWS OF KENYA

KENYA DEFENCE FORCES ACT

THE KENYA DEFENCE FORCES (IMPRISONMENT) REGULATIONS

LEGAL NOTICE 236 OF 2017

  • Published in Kenya Gazette Vol. CXIX—No. 132 on 8 September 2017
  • Commenced on 8 September 2017
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

1. Citation

These Regulations may be cited as the Kenya Defence Forces (Imprisonment) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—"Act" means the Kenya Defence Forces Act (Cap. 199);"civil prison" means a prison established under the Prisons Act (Cap. 90);"contraband" includes unauthorized items, goods, articles or merchandise brought in or out of the prison facilities;"handcuffs" means handcuffs of figure-of-eight, swivel or curb-chain type, not exceeding, for the pair, seven hundred grams in weight;"legal adviser" means—
(a)an advocate;
(b)a lawyer; or
(c)if a service prison is outside Kenya, any person who, in the opinion of the officer in charge, has rights and duties in the country concerned similar to those of an advocate;
(d)any clerk in the full-time service of an advocate or such a person, and authorized in writing by the advocate to interview a prisoner; or
(e)any officer representing or assisting a prisoner for the purposes of his defence or in connection with his appeal.
"officer in charge" means the officer for the time being commanding the unit upon whose premises a service prison is situated;"prisoner" means any person who is serving a service sentence of imprisonment in a service prison;"restraint order" means an order issued under regulation 31 paragraph 3;"Service Commander" means a commander of a service of the Kenya Defence Forces;"service prison" means—
(a)any premises set aside by a Service Commander as a place of imprisonment for persons serving a service sentence of imprisonment;
(b)any cell, room, hut, tent or other place which is situated within an area or place occupied by a unit normally commanded by an officer not below the rank of major or corresponding rank, and which is used for the confinement of any such persons;
"staff" means the persons for the time being charged with the administration of a Service prison or with the custody of prisoners therein.

3. Service of sentences

(1)A service sentence of imprisonment which does not exceed forty-two days shall be served—
(a)whenever practicable, in a service prison of the unit to which the person under such sentence belongs or if such unit has no such prison, in a service prison established by some other unit; or
(b)if there is no such service prison reasonably available, in a civil prison.
(2)A service sentence of imprisonment which exceeds forty-two days shall be served in a civil prison.

4. Warrant for confinement

(1)An entry in a unit Part II Orders notifying the imposition of a service sentence of imprisonment not exceeding forty-two days upon any person shall be sufficient warrant for the confinement of such person in a service prison.
(2)Where, under regulation 3, a service sentence of imprisonment is to be served in a civil prison, an order in the form set out in Forms I and II in the First Schedule, as may be appropriate, and signed by the commanding officer of the person under sentence, shall be sufficient warrant for such person to be detained in a civil prison.

5. Conditions for release from custody

Subject to regulation 6, no person under a service sentence of imprisonment, whether in service custody or in civil custody, shall be released from such custody otherwise than—
(a)in accordance with an order of a court of competent jurisdiction;
(b)in accordance with an order in the form set out in the Third Schedule; or
(c)on the expiration of his sentence less—
(i)in the case of a sentence served in a service prison, remission allowed in accordance with these Regulations; or
(ii)in the case of a sentence served in a civil prison, remission as allowed in accordance with any written law relating to remission of the sentence of a convicted criminal prisoner in such prison.

6. Temporary release from Service prison

(1)The commanding officer of a person serving sentence of imprisonment in a service prison may authorize the temporary release of such person from such prison in any of the following circumstances—
(a)in the case of the death or dangerous illness of a near relative of the prisoner, and the commanding officer is satisfied that the presence of the prisoner is desirable;
(b)where damage has been done to any premises occupied by the next-of-kin of the prisoner and the commanding officer is satisfied that the presence of the prisoner is desirable;
(c)where the prisoner could make arrangements preliminary to or consequent upon the birth of his child, and the commanding officer is satisfied that the presence of the prisoner is desirable;
(d)where the prisoner has requested facilities to enable him to marry a woman who is expecting a child or to birth in the case of a female officer or service member; or
(e)where there are domestic difficulties concerning the prisoner or his family, and the commanding officer is satisfied that the personal attendance of the prisoner is desirable.
(2)Upon request, a commanding officer may approve temporary release from service custody.
(3)A temporary release under this regulation shall be subject to the following—
(a)that the prisoner shall comply with any conditions determined by the commanding officer and communicated to the prisoner or as may be provided for in Standing Orders to be observed by, or in relation to, the prisoner during the period of his or her temporary release, including any conditions as to custody during the period of temporary release, and as to the place or places where the prisoner may or may not go during that period;
(b)that, if the prisoner fails to comply with any such conditions, the period of his temporary release shall thereupon be terminated and it shall be the duty of the prisoner to return forthwith to the service prison.
(4)Any period of temporary release shall not count as part of the service sentence to be served.

7. Period of remission in service prison

(1)The periods of remission which may be earned on good conduct by a prisoner shall be one-third of the sentence if the sentence does not exceed thirty-one days.
(2)Where a sentence does not exceed thirty-one days, no remission shall be earned in service remission.
(3)If a remission under paragraph (1) would result in a prisoner serving less than thirty-one days, the period of remission shall be such period as will reduce the sentence to thirty-one days.
(4)For the purpose of calculating remission in accordance with paragraphs (1) and (2) above, a fraction of a day shall not be reckoned in the number of days.
(5)A prisoner due to be released on a public holiday shall be released on the day prior to the public holiday and the uncompleted day shall be deemed to be remitted.

8. Records of remission

(1)The officer in charge shall appoint an officer to be responsible for maintaining the record of remissions to which a prisoner may be entitled in accordance with regulation 7.
(2)The record of remission shall show the entitlement to remission earned by each prisoner, and also the details of any loss of remission awarded in accordance with these Regulations.

9. Forfeiture of remission

One day's remission of the sentence of a prisoner shall be forfeited in 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—
(a)his sickness occasioned by his own misconduct;
(b)his undergoing a sentence of a civil court;
(c)his being in the lawful custody of any civil authority; or
(d)an award by the officer in charge under regulation 34 for an offence under regulation 33.

10. Effect on remission of subsequent sentences of imprisonment

If, while a person is serving a sentence of imprisonment he is awarded a further sentence of imprisonment, remission shall be calculated under regulation 7, taking into account the total period to which the said person was actually sentenced and which he would be required to serve.

11. Corporal punishment

Corporal punishment shall not be inflicted on prisoners.

12. Use of force

Any member of the staff may use such force against a prisoner as is reasonably necessary to make the prisoner obey any lawful order which he refuses to obey or in order to maintain discipline.

13. Requirement of service prison

(1)No room shall be used as, or as part of, a service prison unless a medical officer has certified that its size, lighting, heating, ventilation and fittings are adequate for health, and that it allows any prisoner therein to communicate at any time with a member of the staff, and any certificate granted in relation to a room shall state the maximum number of prisoners who may be confined therein.
(2)The size of rooms intended for occupation by prisoners shall be such as to provide at least six hundred cubic feet capacity for each such prisoner, unless in any particular case, having regard to the exigencies of the service, the officer in charge authorizes temporary accommodation for prisoners in accommodation of smaller capacity.
(3)The confinement of a prisoner shall be solitary or at least three prisoners in a room.
(4)A prisoner shall not be accommodated in the same room or place as a person in arrest.

14. Work

(1)During the whole of his sentence a prisoner shall be engaged in work or training for not more than nine nor less than six hours a day excluding times for meals.
(2)Nothing in this regulation shall require that a prisoner shall be engaged in work or training at any time when he is—
(a)in close confinement;
(b)undergoing restricted diets;
(c)excused work or training on medical grounds on the advice of a medical officer; or
(d)excused work by the officer in charge or engaged in some other activity authorized by or under these Regulations.

15. Days of rest

(1)A prisoner shall have only one day of rest in a week in accordance with his or her faith and on this day, no prisoner shall be engaged on work or training except work which is necessary for the cleaning of the service prison.
(2)In exceptional circumstances owing to exigencies of active service, a prisoner may be required to carry out some duties, work or training on a day of rest.

16. Work in association

(1)Whenever possible a prisoner shall work in association with other prisoners unless it appears to the officer in charge that it is—
(a)for good cause not desirable for a prisoner to work with others;
(b)not in the interest of such prisoner; or
(c)not in the interest of good order and discipline.
(2)When a prisoner is not permitted to work in association with other prisoners, the officer in charge may arrange for that prisoner to work in a room or place apart from other prisoners.
(3)In deciding whether a prisoner shall be required to work apart from other prisoners under the provisions of paragraph (1), and whether such a person ought to resume work in association with other prisoners, the officer in charge shall take into consideration any advice which he may be given by a medical officer.

17. No work for private benefit

A prisoner shall not be employed directly or indirectly for the private benefit or advantage of any person, nor in any way contrary to these Regulations or the order of the officer in charge.

18. Rations

(1)The food provided for prisoners shall be the same as that provided for soldiers in the unit except when the prisoner is undergoing restricted diet.
(2)The officer in charge shall ensure that every prisoner receives the rations to which the prisoner is entitled.

19. Possession of tobacco etc.

A prisoner shall neither be permitted to smoke nor to retain in his or her possession any tobacco, cigarettes, matches or lighter, or any naked light for the purpose of lighting tobacco or cigarettes.

20. Correspondence

(1)A prisoner shall be allowed to write letters as follows—
(a)on first admission, one letter; and
(b)in every week of his or her sentence following the week in which he or she is first admitted, one letter.
(2)Writing paper, envelopes and other materials required to enable prisoners to write letters shall be provided by themselves, and retained by the staff, and a prisoner shall be allowed to use his or her writing materials during the hours permitted by the officer in charge for leisure.
(3)A prisoner may receive—
(a)any number of letters; and
(b)books, newspapers, journals and periodicals at the discretion of the officer in charge.
(4)A prisoner may use the telephone upon approval by the officer in charge and subject to such conditions as the officer in charge may impose.

21. Parcels

(1)A parcel addressed to a prisoner shall be opened and examined by an officer in the presence of the prisoner and any contraband or article which the prisoner is not authorized to receive shall be retained in safe keeping by the officer in charge and handed to the prisoner on final release:Provided that perishable articles may be disposed of in accordance with the directions of the officer in charge by returning them to the sender or otherwise.
(2)Contrabands are prohibited and shall be liable to confiscation by the officer in charge or any other person authorised by him.
(3)A prisoner may with the consent of the officer in charge and within reasonable circumstances receive toilet requirements and other articles as requested by the prisoner. Such request shall be driven by the immediate and priority needs of the prisoner.

22. Censorship

(1)Subject to section 43(2) of the Act, the officer in charge or any officer deputed by him or her may scrutinize letters, short messaging service, social media communications, emails and all forms of correspondences offered on technological platforms written by or addressed to a prisoner.
(2)The officer in charge may withhold from a prisoner the whole or any part of a letter addressed to him or her or seek technical intervention to censor communication on any information technology platform but he or she shall communicate to him or her any part of the letter or communication on information technology platform which is unobjectionable.
(3)The officer in charge may withhold a letter written by a prisoner or any communication on information technology platform, but in such case he or she shall give the prisoner an opportunity of writing in its place another letter or compiling another short messaging service, social media communications, emails or any other form of correspondence offered on information technology platform which does not contain the material to which the officer in charge objects.
(4)If any letter or short messaging service, social media communications, emails and any other form of correspondence offered on technological platforms contains a complaint relating to the service prison or the treatment of the prisoner, the officer in charge shall draw the attention of the prisoner to his rights as to complaints.
(5)In any case where the officer in charge withholds a letter or short messaging service, social media communication, emails or any other form of correspondence offered on information technology platform written or composed by or addressed to a prisoner he shall record the fact and his reasons for so acting.

23. Visits

(1)A prisoner may receive visits from his or her relatives and friends with the consent of the officer in charge and the visits shall take place at times and places to be determined by that officer.
(2)Any visit authorized under this regulation shall be within the sight and hearing of a member of the staff not below the rank of sergeant.

24. Legal advisers

(1)The officer in charge shall provide reasonable facilities for a prisoner to be visited by his legal advisor.
(2)Any visit authorized under this rule shall be within the sight of the officer in charge or a member of the staff.

25. Medical examination

The officer in charge shall ensure that every prisoner who is—
(a)in close confinement;
(b)subject to any form of physical restraint;
(c)undergoing restricted diet; or
(d)sick or complains of sickness,
shall be seen by a medical officer at least once every day, and the medical officer shall also see daily every prisoner to whom his attention is especially directed by the officer in charge.

26. Appeals

The place in which a prisoner who has appealed, or desires to appeal, against his conviction by court martial may be taken to, kept in custody at and brought back from any place where he is entitled to be present for the purposes of Part X of the Act, or any place to which the High Court or a judge may order him to be taken for the purposes of any proceedings of the Court, shall be as follows—
(a)he may be taken to, kept in custody at or brought back from any such place in service or civil custody;
(b)he may be kept in such custody at any such place in any manner ordered by the High Court or a judge thereof.

27. Right to appeal to be notified

(1)The officer in charge shall bring to the notice of prisoners their rights to appeal.
(2)The officer in charge shall permit a prisoner who intends to appeal, or whose appeal is pending, for the purposes of such appeal, to receive visitors, to be provided with reasonable quantity of writing materials, to write and receive letters and to prepare and hand personally, or to send by post, to his legal advisor confidential written communications as instructions in connection with the appeal.
(3)For the purpose of appeal a prisoner may receive a visit from a medical practitioner selected by him or on his behalf by relatives or friends.

28. Search of persons under sentence

(1)On admission to a service prison, a prisoner shall be searched in accordance with these Regulations.
(2)The officer in charge may order that a prisoner shall be searched at any time while he or she is serving his or her sentence.

29. Conditions of search

(1)The following conditions shall be observed in relation to the search of a prisoner—
(a)every search shall take place in the presence of at least two other members of the Kenya Defence Forces of the same gender;
(b)no other prisoner shall be present at the search.
(2)A person carrying out a search under this regulation shall respect and uphold the personal dignity of the prisoner.

30. Duration of sentence of person who escapes

The officer in charge of the service prison from which a prisoner escapes shall be the prescribed authority for the purposes of section 201(1)(b) of the Act.

31. Death

(1)If a prisoner dies, the officer in charge shall—
(a)immediately report the matter to the civil police in whose area the service prison is situated; and
(b)in the event of an inquiry into the death of such prisoner not being held by any civil authority, arrange for a board of inquiry to be convened in accordance with the Kenya Defence Forces (Board of Inquiry) Regulations (sub. leg).
(2)The law relating to investigation of deaths shall apply to the extent necessary to the death of a prisoner.

32. Offences against discipline

A prisoner who—
(a)treats with disrespect any member of the staff of a service prison, any visitor thereto, or any person employed therein;
(b)is careless or negligent;
(c)behaves irreverently at divine service;
(d)uses any abusive, insolent, threatening or any other improper language;
(e)is indecent in any act or gesture;
(f)communicates with any other prisoner without authority;
(g)leaves his room or place of work or other appointed place without permission;
(h)commits any nuisance;
(i)has in his room or possession any unauthorized articles or contraband, or attempts to obtain such articles or contraband;
(j)gives to any person any unauthorized article;
(k)makes repeated and groundless complaints;
(l)fails to observe or comply with any conditions as to temporary release;
(m)attempts to commit any of the offences referred to in this regulation, commits an offence.

33. Procedure for dealing with offences

A prisoner who commits an offence under the Act or under these Regulations shall be dealt with—
(a)by the officer in charge; or
(b)in accordance with the provisions of section 155 or 156 of the Act.

34. Punishment which may be awarded by the officer in charge

(1)An officer in charge may award any of the punishments set out in paragraph (2) of this regulation to a prisoner who has been found by him to have committed any offence under these Regulations.
(2)The punishments referred to in paragraph (1) are—
(a)close confinement for a period not exceeding fourteen consecutive days in any one period;
(b)forfeiture of remission of sentence for a period not exceeding fourteen days;
(c)deprivation of library books and periodicals;
(d)admonishment; or
(e)extra military instruction not exceeding three periods of forty-five minutes each.

35. Close confinement

(1)No prisoner shall be placed in close confinement unless he has been certified by a medical officer as fit to undergo such punishment.
(2)A prisoner in close confinement shall not be permitted to attend divine service and, except on the recommendation of a medical officer, shall not be permitted any exercise.
(3)A prisoner in close confinement shall not be deprived of his room furniture, books or periodicals, nor be subjected to any form of discipline which has not been ordered in accordance with these Regulations.
(4)A prisoner in close confinement shall be visited at least once every day by the officer in charge or an officer nominated by him or her, and by a medical officer, and in addition at least once every three hours by a member of the staff.

36. Mechanical restraints

(1)Except as otherwise provided for by this regulation, a prisoner shall not be placed in handcuffs or any other form of mechanical restraint, or be in any manner bound, fettered or otherwise restricted in his movements, as a punishment.
(2)An officer in charge may order the use of handcuffs for the purpose of ensuring the safe custody of a prisoner during his removal from one place to another.
(3)If it appears to an officer in charge that the use of handcuffs is necessary on a prisoner in order to prevent him from injuring himself or others, or destroying property, or otherwise creating a disturbance, he may issue a written order that such prisoner be placed in handcuffs.
(4)A restraint order shall—
(a)specify the date and hour when the handcuffs are to be applied;
(b)specify the period, not exceeding twenty four hours, during which the prisoner is to remain in handcuffs; and
(c)state whether the handcuffs are to be applied with the hands of the prisoner placed to the front or to the rear of the body.
(5)Immediately upon making a restraint order the officer in charge shall give a copy thereof to a medical officer who shall thereupon examine the prisoner and inform the officer in charge if, in his opinion, there is any objection on medical grounds to the use of handcuffs on the prisoner or whether the restraint order should be modified in any manner, and the officer in charge shall revoke or modify the restraint order in accordance with the opinion of the medical officer.
(6)Where a restraint order states that handcuffs are to be applied with the hands of the prisoner to the rear of the body, they shall be moved to the front during meals and for sleeping.
(7)Whenever handcuffs are applied to or removed from a prisoner, an officer or senior member of the staff shall be present and a record shall be made of every person present at that time.

37. Canvas suits

(1)Where a prisoner destroys or attempts to destroy his clothing, or refuses to wear uniform, the officer in charge may order that the prisoner shall wear a suit, consisting of frock and trousers made of canvas sail-cloth, not exceeding five and one-half kilograms in weight.
(2)The officer in charge shall record every order made under this regulation, the date from which the prisoner is required to wear a canvas suit and the date on which he authorizes its removal.

38. Religious books and chaplains

(1)An officer in charge shall, so far as practicable, make available for the use of every prisoner such books of religious observance or instruction as are recognized for the use of the religious denomination of the prisoner.
(2)An officer in charge shall provide a book in which chaplains may record any matters which they wish to bring to his notice.
(3)An officer in charge may, at his discretion, afford facilities to chaplains to have access to prisoners for the purpose of giving them religious instruction, at times approved by him.

39. Visits by chaplain

(1)A chaplain or equivalent of the same religious denomination as a prisoner may, at the discretion of the officer in charge, visit the prisoner as soon after his first admission to a service prison as possible, and thereafter from time to time at proper and reasonable times, and again shortly before his release; and where there is no chaplain or equivalent of the same denomination as the prisoner the officer in charge may arrange for the prisoner to be visited by a minister of his own denomination if the prisoner so wishes and it is practicable to make the arrangements.
(2)A prisoner shall be informed of the provisions of paragraph (1) as soon as possible after his first admission to the service prison.
(3)In appropriate cases a chaplain or equivalent shall officiate at the burial of a prisoner who dies while under sentence.

40. Attendance at divine service

A prisoner unless undergoing punishment of close confinement may attend divine service of his religious denomination if in the opinion of the officer in charge it is practical for him so to do, having regard to his behaviour and to the location of the place of worship in relation to the location of the service prison.

41. Educational training

(1)An officer in charge shall provide educational training for prisoners whenever practicable.
(2)Imprisonment or other disciplinary action shall not in itself constitute a ground for failure of the officer in charge not to facilitate training of a prisoner.

42. Prohibition of liquor, tobacco etc.

A person shall not bring or attempt to bring into a service prison or give or attempt to give to a prisoner, any spirituous or fermented liquor or any tobacco, or place any such liquor or tobacco in any place with intent that it shall come into the possession of a prisoner, nor shall any member of the staff allow any such liquor or tobacco to be sold or used in the service prison.

43. Communication with prisoners

No person shall, without lawful authority, convey or attempt to convey any letter or any other thing into or out of a service prison or to a prisoner, or place it anywhere outside the service prison with intent that it shall come into the possession of a prisoner.

44. Unauthorized entry of service prison

(1)No unauthorized person shall enter a service prison, or make any sketch, or take any photograph of or communicate with any prisoner, and no person shall remain in a service prison after being requested to leave by the officer in charge or any person acting under his authority.
(2)The officer in charge may grant permission to any person to enter a service prison subject to any condition, which he may consider necessary.
(3)The officer in charge may order the removal from a service prison of any person who, without authority enters therein or contravenes the provisions of paragraphs (1) and (2).

FIRST SCHEDULE

FORMS

FORM I(r. 4 (2))

ORDER FOR THE COMMITTAL OF A MEMBER OF THE KENYA DEFENCE FORCES TO A CIVIL PRISON ON AN AWARD OF IMPRISONMENT BY HIS COMMANDING OFFICER

To the Officer in Charge of......................................(a).Whereas No. ..................... Rank ....... Name ........................... of the ......................... Unit was on the .............. day of .................... 20......................, awarded imprisonment for a period of................. days, by his commanding officer for the offence(s) of ............................... b).Now, therefore, in pursuance of the Kenya Defence Forces Act I hereby order you to receive the said person into your custody and to retain him to undergo his sentence according to law and for so doing this shall be your warrant.Signed at....................... this day of ..................., 20.........(Signature ............................................................(c).Rank and appointment....................................
(a)Insert the name and address of the prison.
(b)Set out the statement (not the particulars) of the offence and the relevant sections of the Kenya Defence Forces Act. Where there is more than one offence, the statement of each must be set out.
(c)This form must be signed by the commanding officer of the person concerned.
FORM II(r. 4 (2))

ORDER FOR THE COMMITTAL OF A MEMBER OF THE KENYA DEFENCE FORCES TO A CIVIL PRISON ON SENTENCE OF IMPRISONMENT BY A COURT MARTIAL

To the Officer in Charge of.........................................Whereas No. .................. Rank.............................. was convicted by a Court Martial held at ................................ of the offence(s) of....................(b) and, by a sentence passed on the........................ day ...........20......... sentenced to imprisonment for a term of ...............commencing on the said day, in accordance with the provisions of the Kenya Defence Forces Act.Now, therefore, in pursuance of the Kenya Defence Forces Act I hereby order you to receive the said person into your custody and to retain him to undergo his sentence according to law and for so doing this shall be your warrant.Signed at.................... this ........... day of .............., 20.......
(Signature)...................(c).
Rank and appointment
(a)Insert the name and address of the prison.
(b)Here set out the statement (not the particulars) of the offence and the relevant sections of the Kenya Defence Forces Act. Where there is more than one offence the statement of each must be set out.
(c)The committal form must be signed by the commanding officer for the time being of the person concerned.

SECOND SCHEDULE [r. 5(b)]

ORDER FOR THE RELEASE OF A PERSON UNDERGOING SENTENCE OF IMPRISONMENT UNDER THE KENYA DEFENCE FORCES ACT

To the Officer in Charge of ....................... (a) Whereas No. ................ Rank ....................... (b). Name.................... of the ..................... (b).Unit is now in your custody undergoing a sentence of imprisonment awarded by his commanding officer Now, therefore, in pursuance of the powers conferred by Part IX of the Kenya Defence Forces Act, I do hereby order you to release the said person from custody.Signed at .................. this ..................... day of 20................
(Signature)............................. (c).
......................................Rank and appointment
(a)Insert the name and address of the civil prison or service prison.
(b)Delete as necessary.
(c)This form must be signed by the reviewing officer. In the case of a person serving a sentence in a service prison this order must be signed by the officer who awarded the original award of imprisonment.
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31 December 2022 this version
08 September 2017
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