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Anti-Corruption And Economic Crimes Act

This Act Provides For The Prevention, Investigation And Punishment Of Corruption, Economic Crime And Related Offences And For Matters Incidental Thereto And Connected Therewith.

Interpretation of this Act

  1. Benefit refers to any gift, loan, fee, reward, appointment, service, favour, forbearance, promise or other consideration or advantage
  2. Corruption refers to bribery, fraud, embezzlement or misappropriation of public funds, abuse of office, breach of trust or any offence involving dishonesty
  3. Unexplained assets refers to the assets of a person acquired at or around the time the person was reasonably suspected of corruption or economic crime and whose value is disproportionate to his known sources of income at or around that time and for which there is no satisfactory explanation

How are Special Magistrates appointed?

The Chief Justice may by notification in the Kenya Gazette appoint as many special Magistrates as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences:

  1. Corruption and economic crimes and related offences
  2. Any conspiracy to commit or attempt to commit or any abetment of any of the offences of corruption and economic crimes.

A person shall be qualified for appointment as a special Magistrate if he is or has been a chief magistrate or a Principal Magistrate or an advocate of at least ten years standing.

 

  1. Notwithstanding anything contained in the Criminal Procedure Code or in any other law in force, the offences in this Act shall be tried by special magistrates only.
  2. Every offence specified shall be tried by the special Magistrate for the area within which it was committed or by the special Magistrate appointed for the case or where there are more special Magistrates than one for such area, by one of them as may be specified by the Chief Justice.
  3. A special Magistrate may also try any offence other than an offence specified in this Act, with which the accused may, under the Criminal Procedure Code, be charged at the same trial.
  4. Notwithstanding anything contained in the Criminal Procedure Code, a special Magistrate shall hold the trial of an offence on a day-to-day basis until completion.

What are the procedures and powers of a special Magistrate?

  1. A special Magistrate may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstance within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
  2. The provisions of the Criminal Procedure Code and the Magistrates’ Courts Act shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Magistrate; and for the purposes of the said provisions, the Court of the special Magistrate shall be deemed to be a court and the person conducting a prosecution before a special Magistrate shall be deemed to be a public prosecutor.
  3. A special Magistrate may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence for which such person is convicted.

Establishment of an Advisory Board

The Kenya Anti-Corruption Advisory Board shall be an unincorporated body consisting of:

  1. One member nominated by each of the following;
  1. The Law Society of Kenya
  2. The Institute of Certified Public Accountants of Kenya
  3. The International Federation of Women Lawyers (FIDA)
  4. The Kenya Association of Manufacturers
  5. The joint forum of religious organizations
  6. The Federation of Kenya Employers
  7. The Kenya Bankers Association
  8. The Central Organisation of Trade Unions
  9. The Association of professional Societies in East Africa
  10. The Architectural Association of Kenya
  11. The Institution of Engineers of Kenya
  12. The Kenya Medical Association
  1. The Director

The joint forum of religious organizations referred to above shall consist of representatives of;

  1. The Supreme Council of Kenya Muslims
  2. The Kenya Episcopal Conference
  3. The National Council of Churched of Kenya
  4. The Evangelistic Fellowship of Kenya
  5. The Hindu Council of Kenya

What are the Functions of the Advisory Board?

The principal function of the Board is to advise the Commission generally on the exercise of its powers and the performance of its functions.

The Board shall also have such other functions as may be conferred on it by or under this Act.

 

To what extent is the Advisory Board Independent?

In the performance of its functions, the Advisory Board shall not be subject to the direction or control of any other person or authority and shall be accountable only to Parliament.

Establishment of Committees of the Board

  1. For the better performance of its function, the Advisory Board may establish committees in respect of the investigative, preventive and educational functions of the commission or in respect of any other matter
  2. The Board may delegate any of its powers and functions to any such committee
  3. The Board may not delegate the power or function to do any of the following;
  1. Recommend a person to be appointed as Director or Assistant Director
  2. Appoint a person to be an acting Assistant Director or revoke such an appointment
  3. Recommend the termination of a person’s appointment as the Director or an Assistant Director
  4. Request the appointment of a Tribunal

Who shall be the Chairman and the Vice-chairman?

  1. The Advisory Board shall nominate one of its nominated members to be the Chairman of the Advisory Board and another of its nominated members to be its Vice-chairman
  2. The members so nominated shall be appointed to their respective offices by the President
  3. Subject to an earlier resignation or termination, the Chairman and Vice-chairman shall each hold office until his current term as a member of the Advisory Board expires

Who shall be the secretary of the Board?

The Director shall be the secretary of the Advisory Board

What are the Procedures of the Advisory Board?

  1. The business and affairs of the Advisory Board shall be conducted in accordance with the Third Schedule
  2. Except as provided in the Third Schedule, the Advisory Board may regulate its own procedure
  3. Seven nominated members of the Advisory Board shall constitute a quorum for the transaction of any business of the Board

The Advisory Board may invite any person to attend any of its meetings and to participate in its deliberations, but such an invitee shall not have a vote in any decision of the Board

Who shall be the Investigators?

  1. The Director or a person authorized by the Director may conduct an investigation on behalf of the Commission
  2. The powers conferred on the Commission may be exercised, for the purposes of an investigation, by the Director or an investigator
  3. For the purposes of an investigation, the Director and an investigator shall have the powers, privileges and immunities of a police officer in addition to any other powers the Director or investigator has
  4. The provisions of the Criminal Procedure Code, the Evidence Act, the Police Act and any other law conferring on the police the powers, privileges and immunities necessary for the detection, prevention and investigation of offences relating to corruption and economic crime shall, so far as they are not inconsistent with this Act or any other law, apply to the Director and an investigator as if reference in those provisions to a police officer included reference to the Director or an investigator

How are investigators identified?

  1. The Commission shall issue identification documentation to an investigator and such identification shall be evidence that the person to whom it is issued is an investigator
  2. The identification documentation shall be signed by the Director

What of complaints not investigated?

If the Commission receives a complaint concerning corrupt conduct on the part of any person and the Commission declines to investigate or discontinues its investigation before the investigation is concluded, the Commission shall inform the complainant in writing of its decision and of the reasons for its decision

What happens when investigations are ceased?

  1. The Commission may, in consultation with the Minister and the Attorney-General, tender an undertaking in a form prescribed by the Minister, not to institute or continue with investigations against any person suspected of an offence under this Act
  2. Where the Commissioner intends to take action as specified above, it shall by notice in the daily newspapers invite interested persons to approach it for such an undertaking within a period specified in the notice
  3. An undertaking under this section shall only be made in cases where the suspected person;
  1. Makes a full and true disclosure of all material facts relating to past corruption or economic crime
  2. Through the Commission, pays or refunds to, or deposit with, the Commission for all persons affected, any property or money irregularly obtained with interest thereon at a rate prescribed by the Minister
  3. Makes reparation to any person affected by his corrupt conduct
  4. Pays for all loss of public property occasioned by his corrupt conduct
  1. The Commission shall publish its intention to make undertaking by notice in at least two newspapers of national circulation;
  1. Stating the name of the proposed beneficiary of the undertaking
  2. Stating the offence of which the person is suspected
  3. Confirming that the person has fulfilled all the conditions set out above
  4. Inviting any person with an objection to the proposed undertaking to forward their objections to the Commission within a period specified in the notice
  1. An aggrieved person may object to the proposed undertaking on the grounds that;
  1. The suspected person has not fully satisfied the conditions set out in (2)
  2. He has any other evidence relevant which may affect the Commission’s decision regarding the undertaking
  1. The Commission shall consider all objections submitted and shall take such action as may be appropriate in the circumstances
  2. The Commission shall not make any undertaking in respect of corrupt conduct or economic crime which leads to circumstances which cause a danger to public safety, law and order
  3. Any person in respect of whom the Commission makes an undertaking shall be disqualified from holding public office

When is a statement of suspect’s property made?

  1. If, in the course of investigation into any offence, the Director is satisfied that it could assist or expedite such investigation, the Director may, by notice in writing, require a person who, for reasons to be stated in such notice, is reasonably suspected of corruption or economic crime to furnish, within a reasonable time specified in the notice, a written statement in relation to any property specified by the Director and with regard to such specified property;
  1. Enumerating the suspected person’s property and the times at which it was acquired
  2. Stating, in relation to any property that was acquired at or about the time of the suspected corruption or economic crime, whether the property was acquired by purchase, gift, inheritance or in some other manner and what consideration, if any, was given for the property.
  1. A person who neglects or fails to comply with a requirement is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or both
  2. The powers of the Commission may be exercised only by the Director

What are the requirements to provide information?

  1. The Commission may apply ex parte to the court for an order requiring an associate of a suspected person to provide, within a reasonable time specified in the order, a written statement stating, in relation to any property specified by the Director, whether the property was acquired by purchase, gift, inheritance or in some other manner and what consideration if any was given for the property
  2. In (1), “associate of a suspected person” means a person, whether or not suspected of corruption or economic crime, who the investigator reasonably believes may have had dealings with a person suspected of corruption or economic crime
  3. The Commission may by notice in writing require any person to provide, within a reasonable time specified in the notice, any information or documents in the person’s possession that relate to a person suspected of corruption or economic crime
  4. A person who neglects or fails to comply with a requirement is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or both
  5. No requirement requires anything to be disclosed that is protected by the privilege of advocates including anything protected by the Evidence Act

 

What are the requirements for the production of records and property?

  1. The Commission may apply, with notice to affected parties, to the court for an order to;
  1. Require a person, whether or not suspected of corruption or economic crime, to produce specified records in his possession that may be required for an investigation
  2. Require that person or any other to provide explanations or information within his knowledge with respect to such records, whether the records were produced by the person or not
  1. A requirement under (1)(b) may include a requirement to attend personally to provide explanations and information
  2. A requirement under (1) may require a person to produce records or provide explanations and information on an ongoing basis over a period of time, not exceeding six months
  3. The six month limitation in (3) does not prevent the commission from making further requirements for further periods of time as long as the period of time in respect of which each requirement is made does not exceed six months
  4. Without affecting the operations of the admissibility of things produced or found, the Commission may make copies of or take extracts from any record pursuant to any requirement
  5. A requirement to produce a record stored in electronic form is a requirement ;
  1. To reduce the record to hard copy and produce it
  2. If specifically required, to produce a copy of the record in electronic form
  1. “Records” includes books, returns, bank accounts or other accounts, reports, legal or business documents and correspondence other than correspondence of a strictly personal nature
  2. The Commission may by notice in writing require a person to produce for inspection, within a reasonable time specified in the notice, any property in the person’s possession, being property of a person reasonably suspected of corruption or economic crime
  3. A person who fails to comply with the above requirements is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or both
  4.  No requirement requires anything to be disclosed that is protected by the privilege of advocates including anything protected by the Evidence Act (section 134 or 137)

When may one’s premises be searched?

The Commission may, with a warrant, enter upon and search premises for any record, property or other thing reasonably suspected to be in or on the premises and that has not been produced by a person pursuant to a requirement.

The power conferred is in addition to, and does not limit or restrict a power conferred to investigators.

What is the Admissibility of things produced or found?

Where the notice is directed at a person under investigation or a person who has been charged with an offence of corruption or an economic crime, any statement, record or information given pursuant to such notice, shall not be given in evidence against such a person in any criminal proceedings except where such a person is charged with knowingly or recklessly giving false information.

When will one be required to surrender travel documents?

  1. On the ex parte application of the Commission, a court may issue an order requiring a person to surrender his travel documents to the Commission if;
  1. The person is reasonably suspected of corruption or economic crime
  2. The corruption or economic crime concerned is being investigated
  1. If the person surrenders his travel documents pursuant to an order, the Commission;
  1. Shall return the documents after the investigation of the corruption or economic crime concerned is completed, if no criminal proceedings are to be instituted
  2. May return the documents at its discretion, either with or without conditions to ensure the appearance of the person
  1. A person against whom an order under (1) is made may apply to the court to discharge or vary the order the return of his travel documents and the court may, after hearing the parties, discharge or vary the order, order the return of the travel documents or dismiss the application
  2. If a person fails to surrender his travel documents pursuant to an order, the person may be arrested and brought before the court and the court shall, unless the court is satisfied that the person does not have any travel documents, order that the person be detained pending the conclusion of the investigation of the corruption or economic crime concerned
  3. A person who is detained shall be released if;
  1. He surrenders his travel documents to the Commission
  2. He satisfies the court that he does not have any travel documents
  3. The investigation of the corruption or economic crime concerned is completed and the court is satisfied that no criminal proceedings are to be instituted
  1. A person who is detained pursuant to an order under (4) shall be brought before the court at least every eight days or at such shorter intervals as the court may order, to determine if the person should be released under (5)

 

The Director and an investigator shall have power to arrest any person for and charge them with an offence and to detain them for the purpose of an investigation to the like extent as a police officer.

  1. Following an investigation the Commission shall report to the Director of Public Prosecutions on the results of the investigation
  2. The Commission’s report shall include any recommendation the Commission may have that a person to be prosecuted for corruption or economic crime

Quarterly reports

  1. The Commission shall prepare quarterly reports setting out the number of reports made to the Director of Public Prosecutions and such other statistical information relating to those reports as the Commission considers appropriate
  2. It shall indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted
  3. The Commission shall give a copy of each quarterly report to the Attorney General
  4. The Attorney General shall lay a copy of each quarterly report before the National Assembly
  5. The Commission shall cause each quarterly report to be published in the Gazette

Annual reports on prosecutions

  1. The Director of Public Prosecutions shall prepare an annual report with respect to prosecutions for corruption or economic crime
  2. The year covered by an annual report shall be the year ending on December 31st
  3. The annual report for a year shall include a summary of the steps taken during the year in each prosecution and the status, at the end of the year, of each prosecution
  4. The annual report shall also indicate if a recommendation of the Commission to prosecute a person for corruption or economic crime was not accepted and shall set out succinctly the reasons for not accepting the recommendation
  5. The annual report for a year need not include the status of a prosecution that has been finally concluded in a previous year if that status was included in a previous annual report
  6. The Attorney General shall lay each annual report before the National Assembly within the first ten days of the National Assembly following the end of the year to which the report relates

Who is an Agent and a Principal?

Agent means a person who in any capacity and whether in the public or private sector, is employed by or acts for or on behalf of another person.

Principal means a person whether in the public or private sector who employs an agent or for whom or on whose behalf an agent acts.

If a person has a power under the Constitution or an Act and it is unclear under the law with respect to that power whether the person is an agent or which public body is the agent’s principal, the person shall be deemed to be an agent of the government and the exercise of the power shall be deemed to be a matter relating to the business or affairs of the government

A Cabinet Minister shall be deemed to be an agent for both the Cabinet and the government and the holder of a prescribed office or position shall be deemed to be an agent for the prescribed principal.

Bribery involving agents entails:

  1. A benefit that is an inducement or reward for or otherwise on account of, an agent;
  1. Doing or not doing something in relation to the affairs or business of the agent’s principal
  2. Showing or not showing favour or disfavor to anything including to any person or proposal in relation to the affairs or business of the agent’s principal
  1. Under (1)(b), a benefit, the receipt or expectation of which would tend to influence an agent to show favour or disfavor shall be deemed to be an inducement or reward for showing such favour or disfavor
  2. A person is guilty of an offence if the person:
  1. Corruptly receives or solicits, corruptly agrees to receive or solicit a benefit
  2. Corruptly gives or offers or corruptly agrees to give or offer a benefit

What does secret inducements for advice refer to?

  1. Applies to a benefit that is an inducement or reward for or otherwise on account of the giving of advice to a person
  2. A person is guilty of an offence if the person:
  1. Receives or solicits or agrees to receive or solicit a benefit if the person intends the benefit to be a secret from the person being advised
  2. Gives or offers or agrees to give or offer a benefit if the person intends the benefit to be a secret from the person being advised
  1. Giving advice includes giving information
  1. An agent who to the detriment of his principal makes a statement to his principal that he knows is false or misleading in any material respect is guilty of an offence
  2. An agent who to the detriment of his principal uses or gives to his principal, a document that he knows contains anything that is false or misleading in any material respect is guilty of an offence
  1. If an agent has a direct or indirect private interest in a decision that his principal is to make the agent guilty of an offence if:
  1. The agent knows or has reason to believe that the principal is unaware of the interest and the agent fails to disclose the interest
  2. The agent votes or participates in the proceedings of his principal in relation to the decision
  1. A private body may authorize its agent to vote or participate in the proceedings of the private body and the voting or participation of an agent as so authorized is not a contravention of (1)
  2. An agent of a public body who knowingly acquires or holds directly or indirectly a private interest in any contract, agreement or investment emanating from a connected with the public body is guilty of an offence
  3. (3) does not apply with respect to an employment contract of the agent or a related or similar contract or agreement or to any prescribed contract, agreement or investment
  1. Applies to a benefit that is an inducement or reward for the appointment of a person as a trustee of property or for joining or assisting in such an appointment
  2. A person is guilty of an offence if the person:
  1. Receives or solicits or agrees to receive or solicit from a trustee of property a benefit applicable
  2. Gives or offers or agrees to give or offer to a trustee of property a benefit applicable
  1. (2) doesn’t apply to anything done with the informed consent of every person beneficially entitled to the property or in accordance with an order of a court
  2. Trustee of a property includes:
  1. An executor or administrator appointed to deal with the property
  2. A person who under the power of attorney or a power of appointment has authority over the property
  3. A person or a member of a committee managing or administering or appointed or employed to manage or administer the property on behalf of a person under an infirmity or incapacity of mind

It applies with respect to a benefit that is an inducement or reward for:

  1. Refraining from submitting a tender, proposal, quotation or bid
  2. Withdrawing or changing a tender, proposal, quotation or bid
  3. Submitting a tender, proposal, quotation or bid with a specified price or with any specified inclusions or exclusions.

A person is guilty of an offence if the person:

  1. Receives or solicits or agrees to receive or solicit a benefit
  2. Gives or offers to give or offer a benefit
  1. A person is guilty of an offence if the person fraudulently or otherwise unlawfully;
  1. Acquires public property or a public service or benefit
  2. Mortgages, charges or disposes of any public property
  3. Damages public property, including causing a computer or any other electronic machinery to perform any function that directly or indirectly results in a loss or adversely affects any public revenue or service
  4. Fails to pay any taxes or any fees, levies or charges payable to any public body or effects or obtains any exemption, remission, reduction or abatement from payment of any such taxes, fees, levies or charges
  1. An officer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person;
  1. Fraudulently makes payment or excessive payment from public revenues for;
  1. Sub-standard or defective goods
  2. Goods not supplied or not supplied in full
  3. Services not rendered or not adequately rendered
  1. Willfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures
  2. Engages in a project without prior planning
  1. Here, public property refers to any real or personal property, including money of a public body or under the control of, or consigned or due to, a public body

A person who uses his office to improperly confer a benefit on himself or anyone else is guilty of an offence.

  1. A person who deals with property that he believes or has reason to believe was acquired in the course of or as a result corrupt conduct is guilty of an offence
  2. A person deals with property if the person;
  1. Holds, receives, conceals or uses the property or causes the property to be used
  2. Enters into a transaction in relation to the property or causes such a transaction to be entered into
  1. Corrupt conduct means
  1. Conduct constituting corruption or economic crime
  2. Conduct that took place before this Act came into operation and which
  1. At the time, constituted of the offence
  2. If it had taken place after this Act came into operation, would have constituted corruption or economic crime
  1. A person who attempts to commit an offence involving corruption or an economic crime is guilty of an offence
  2. A person attempts to commit an offence of corruption or an economic crime if the person, with the intention of committing the offence, does or omits to do something designed to its fulfillment but does not fulfill the intention to such an extent as to commit the offence
  3. A person who conspires with another to commit an offence of corruption or economic crimes is guilty of an offence
  4. A person who incites another to do any act or make any omission of such a nature that, if that act were done or the omission were made, an offence of corruption or an economic crime would thereby be committed, is guilty of an offence
  1. A person convicted for an offence shall be liable to;
  1. A fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years or both
  2. An additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit or any other person suffered a quantifiable loss
  1. The mandatory fine referred to above shall be determined as follows;
  1. The mandatory fine shall be equal to two times the amount of the benefit or loss described above
  2. If the conduct that constituted the offence resulted in both a benefit and loss described above, the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss

(Section 48)

Is custom a defence?

It shall be no defence that the receiving, soliciting, giving or offering of any benefit is customary in any business, undertaking, office, profession or calling.

Is impossibility and no intention a defence?

In a prosecution of an offence that involves a benefit that is an inducement or reward for doing an act or making an omission, it shall not be a defence;

  1. That the act or omission was not within a person’s power or that the person did not intend to do the act or make the omission
  2. That the act or omission did not occur

Who is liable for compensation?

A person who does anything that constitutes corruption or economic crime is liable to anyone who suffers a loss as a result for an amount that would be full compensation for the loss suffered

What is the liability for improper benefits?

A person who receives a benefit the receipt of which would constitute an offence, for the value of the benefit, to the following persons;

  1. If the receipt constitutes an offence to the agent’s principal
  2. If the receipt constitutes an offence to the person advised
  3. If the receipt constitutes an offence to the persons beneficially entitled to the property

What are the compensation orders on conviction?

  1. A court that convicts a person of any corruption or economic crime shall, at the time of conviction or on subsequent application, order the person;
  1. To pay any amount the person may be liable for under compensation and improper benefits
  2. To give to the rightful owner any property acquired in the course of or as a result of the conduct that constituted the corruption or economic crime or an amount equivalent to the value of that property
  1. If the rightful owner referred to above cannot be determined or if there is no rightful owner, the court shall order that the property or equivalent amount be forfeited to the government
  2. In making an order, the court may quantify any amount or may determine how such amount is to be quantified
  3. An order may be enforced by the person in whose favour it is made as though it were an order made in a civil proceeding
  1. Corrupt conduct means:
  1. Conduct that constitutes corruption or economic crime
  2. Conduct that took place before this Act came into operation and which;
  1. At the time, constituted an offence
  2. If it had taken place after this Act came into operation, would have constituted corruption or economic crime
  1. The Commission may commence proceedings against a person if:
  1. After an investigation, the commission is satisfied that the person has unexplained assets
  2. The person has, in the course of the exercise by the commission of its powers of investigation or otherwise, been afforded a reasonable opportunity to explain the disproportion between the assets concerned and his known legitimate sources of income and the commission is not satisfied that an adequate explanation of that disproportion has been given
  1. Proceedings shall be commenced in the High Court by way of originating summons
  2. In proceedings:
  1. The commission shall adduce evidence that the person has unexplained assets
  2. The person whose assets are in question shall be afforded the opportunity to cross-examine any witness called and to challenge any evidence adduced by the commission and shall have and may exercise the rights usually afforded to a defendant in civil proceedings
  1. If after the commission has adduced evidence that the person has unexplained assets, the court is satisfied on the balance of probabilities and in light of the evidence so far adduced, that the person concerned does have unexplained assets, it may require the person by such testimony and other evidence as the court deems sufficient, to satisfy the court that the assets were acquired otherwise than as a result of corrupt conduct
  2. If, after such explanation the court is not satisfied that all of the assets concerned were acquired otherwise than as the result of corrupt conduct, it may order the person to pay to the government an amount equal to the value of the unexplained assets that the court is not satisfied were acquired otherwise than as the result of corrupt conduct
  3. For the purposes of proceedings, the assets of the person whose assets are in question shall be deemed to include any assets of another person that the court finds:
  1. Are held in trust for the person whose assets are in question or otherwise on his behalf
  2. Were acquired from the person whose assets are in question as a gift or loan without adequate consideration
  1. The record of proceedings shall be admissible in evidence in any other proceedings, including any prosecution for corruption or economic crime
  2. The above shall apply retroactively
  1. On an ex parte application by the commission, the High Court may make an order prohibiting the transfer or disposal of or other dealing with property on evidence that the property was acquired as a result of corrupt conduct
  2. An order may be made against a person who was involved in the corrupt conduct or against a person who subsequently acquired the property
  3. An order shall have effect for six months and may be extended by the court on the application of the commission
  4. A person served with an order may, within fifteen days after being served, apply to the court to discharge or vary the order and the court may, after hearing the parties, discharge or vary the order or dismiss the application
  5. The court may discharge or vary an order under (4) only if the court is satisfied, on the balance of probabilities, that the property in respect of which the order is discharged or varied was not acquired as a result of corrupt conduct
  6. A person who is served with an order and who contravenes it is guilty of an offence and is liable on conviction to a fine not exceeding two million shillings or to imprisonment for a term not exceeding ten years or both
  1. The Commission may, at any time with leave of the court, appoint a receiver for such property as is suspected by the commission to have been acquired through corrupt conduct
  2. The appointment of receiver shall be in writing signed by the Director or Assistant Director
  3. The receiver shall have powers of management, control and possession of the property for which he is appointed
  4. The commission or receiver shall, at the time of the appointment or soon thereafter, serve a notice on the person who has or who appears to have custody or control of the property and where the property is required under any written law to be registered, a similar notice shall be served on the respective registrar:

Provided that where the property is situated outside Kenya, the notice shall not be necessary but the commission shall have the power to liaise with foreign governments, government departments and international agencies for the confiscation, management, control and repatriation of the property.

  1. A person served with a notice shall not, except by authority of a court order, deal with the property in any manner inconsistent with the instructions of the receiver
  2. A person who contravenes (5) shall be guilty of an offence and liable to a fine not exceeding two million shillings or to imprisonment for a term not exceeding ten years or to both for a first offence, and to imprisonment for a term not exceeding ten years without the option of a fine for a subsequent offence in respect of the same property
  3. For avoidance of doubt, a receiver may be appointed in respect of any kind of property whether tangible or intangible, movable or immovable including buildings, income, debts, bank deposits, business concerns, stocks and other properties
  4. The receiver shall keep proper books of account and give quarterly reports to the commission and may pay the costs of receivership out of the property for which he has been appointed
  5. A person aggrieved by the appointment of a receiver may request the commission in writing to set aside the appointment in return for an offer of deposit of some reasonable security or he may apply to the High Court for setting aside or variation of the appointment on the ground that:
    1. He has offered to the commission a reasonable security which has not been accepted by the commission
    2. He has in his possession evidence to show that, on a balance of probabilities, he acquired the property otherwise than through crime or civil wrongs
  6. An application to the High Court shall be heard inter partes and the commission shall be entitled to cross-examine the applicant and to call evidence in rebuttal
  1. In any matter where the commission is mandated by this Act or any other law to institute civil proceedings or applications, it shall be lawful for the commission to issue a notice or letter of demand to the person intended to be sued and may, in such notice or letter, inform the person about the claim against him and further inform him that he could settle the claim within a specified time before the filing of court proceedings
  2. The commission may negotiate and enter a settlement with any person against whom the commission intends to bring, or has actually brought a civil claim or application in court
  3. The commission may tender an undertaking in writing not to institute criminal proceedings against a person who:
  1. Has given a full and true disclosure of all material facts relating to past corrupt conduct and economic crime by himself or others
  2. Has voluntarily paid, deposited or refunded all property he acquired through corruption or economic crime
  3. Has paid for all loses occasioned by his corruption conduct to public property
  1. A settlement or undertaking shall be registered in court

How are funds and other assets recovered?

  1. Any funds recovered by the commission shall be paid into the consolidated fund
  2. Any asset or property, movable or immovable, recovered either in the course of or upon conclusion of investigations or upon commencement of court action or proceedings, whether such proceedings are of a civil or a criminal nature or upon conclusion of such proceedings, shall be surrendered to the Permanent Secretary to the Treasury
  1. Unexplained assets may be taken by the court as corroboration that a person accused of corruption or economic crime received a benefit
  2. The assets of an accused person shall be deemed to include any assets of another person that the court finds:
  1. Are held in trust for the accused person or otherwise for or on his behalf
  2. Who acquired from the accused person without adequate consideration

If a person is accused of an offence, an element of which is that an act was done corruptly and the accused person is proved to have done that act, the person shall be presumed to have done that act corruptly unless the contrary is proved

  1. In a prosecution for corruption or economic crime or a proceeding, a certificate of a valuation officer as to the value of a benefit or property is admissible and is proof of that value, unless the contrary is proved
  2. A court shall presume, in the absence of evidence to the contrary, that a certificate purporting to be the certificate of a valuation officer is such a certificate
  3. Valuation officer means a person appointed, employed or authorized by the commission or the government to value property and whose appointment, employment or authorization is published by notice in the Gazette

For the purposes of any rule or practice requiring the evidence of an accomplice to be corroborated, a person shall not be considered an accomplice of a person accused of an offence only because:

  1. The person received, solicited or agreed to receive or solicit a benefit from the accused person
  2. The person gave, offered or agreed to give or offer a benefit to the accused person

Notwithstanding anything to the contrary in any law, where judgment or an order has been given against the commission for payment of money by way of damages or otherwise:

  1. No execution or attachment in the nature thereof shall be issued against the commission or against the assets, debts or bank deposits of the commission
  2. The director shall, except if there is an appeal or application pending against the judgment or order, cause to be paid out of the funds of the commission provided expressly for such purposes in the annual estimates, such amounts as may be payable under the decree to the person entitled
  3. No property of the commission shall be seized or taken by any person having, by law, power to attach or distrain property without the previous written permission of the director

Will one be suspended if charged with corruption or economic crime?

  1. A public officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge
  2. A suspended public officer who is on half pay shall continue to receive the full amount of any allowances
  3. The public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted
  4. This section does not derogate from any power or requirement under any law which the public officer may be suspended without pay or dismissed
  5. The following shall apply with respect to a charge in proceedings instituted otherwise than by or under the direction of the Attorney-General:
  1. Does not apply to the charge unless permission is given by the court or the Attorney-General to prosecute or the proceedings are taken over by the Attorney-General
  2. If permission is given or the proceedings are taken over, the date of the charge shall be deemed to be the date when the permission is given or the proceedings are taken over
  1. Does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated
  2. Does not apply with respect to a charge laid before this Act came into operation

Will one be suspended if convicted of corruption or economic crime?

  1. A public officer who is convicted of corruption or economic crime shall be suspended without pay with effect from the date of the conviction pending the outcome of any appeals
  2. The public officer ceases to be suspended if the conviction is overturned on appeal
  3. The public officer shall be dismissed if:
  1. The time period for appealing against the conviction expires without the conviction being appealed
  2. The conviction is upheld on appeal
  1. Does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated
  2. Does not apply with respect to a conviction that occurred before this Act came into operation

Will one be disqualified if convicted of corruption or economic crime?

  1. A person who is convicted of corruption or economic crime shall be disqualified from being elected or appointed as a public officer for ten years after the conviction
  2. Does not apply with respect to an elected office if the Constitution sets out the disqualifications for the office
  3. Does not apply with respect to a conviction that occurred before this Act came into operation
  4. At least once a year the commission shall cause the names of all persons disqualified to be published in the Gazette

Will informers be protected?

  1. No action or proceeding, including a disciplinary action, may be instituted or maintained against a person in respect of:
  1. Assistance given by the person to the commission or an investigator
  2. A disclosure of information made by the person to the commission or an investigator
  1. (1) does not apply with respect to a statement made by a person who did not believe it to be true
  2. In a prosecution for corruption or economic crime or a proceeding under this Act, no witness shall be required to identify or provide information that might lead to the identification of a person who assisted or disclosed information to the commission or an investigator
  3. In a prosecution for corruption or economic crime or a proceeding under this Act, the court shall ensure that information that identifies or might lead to the identification of a person who assisted or disclosed information to the commission or an investigator is removed or concealed from any documents to be produced or inspected in connection with the proceeding
  4. (3) and (4) shall not apply to the extent determined by the court to be necessary to ensure that justice is fully done

Conduct by a citizen of Kenya that takes place outside Kenya constitutes an offence under this Act if the conduct would constitute an offence under this Act if it took place in Kenya

What are the qualifications for appointment as Director or Assistant Director?

  1. To be appointed as the director or as an assistant director, a person must satisfy the following qualifications:
  1. The person must be knowledgeable about or experienced in at least one of the following:
  1. Law
  2. Public administration
  3. Accounting and financial matters
  4. Fraud investigation
  1. The person must be of outstanding honesty and integrity

When shall there be a vacancy and acting assistant?

  1. If the office of the director or assistant director becomes vacant, the advisory board shall, within three months, recommend a person to be appointed to fill the vacancy
  2. During the illness or absence of an assistant director or a vacancy in the office of an assistant director, the advisory board may appoint a member of the staff of the commission as an acting director
  3. The advisory board may at any time revoke an appointment under (2) and appoint another member of staff of the commission as acting assistant director

What is the term of office of director or assistant director?

  1. The term shall be five years, provided that an assistant director may be appointed for a term of four years to avoid having the assistant director’s term expire on or around the time the director’s time expires
  2. A person who has held office or director or assistant director may be reappointed but may not serve as the director for more than two terms or as an assistant director for more than two terms
  3. A director shall, unless his office becomes vacant by reason of his death, resignation or ceasing to hold office, continue in office until he is reappointed or replaced by a new director appointed

How may the director or the assistant director resign?

  1. They may resign by a written resignation addressed to the President
  2. A resignation is effective upon being received by the president or by a person authorized by the President to receive it

How can the director or the assistant director be removed?

  1. The President, on the recommendation of the advisory board, may terminate a person’s appointment as the director or the assistant director if the person:
  1. Contravenes restrictions on activities
  2. Is adjudged bankrupt
  3. Is convicted of an offence under the Penal Code or this Act or an offence involving dishonesty
  1. The President may terminate the appointment of the director or assistant director if a tribunal finds that the director or assistant director
  1. Is unable to perform the functions of his office by reason of a mental or physical infirmity
  2. Was involved in a corrupt transaction
  1. The advisory board may request the Chief Justice to appoint a tribunal if the advisory board is of the view that the director or an assistant director
  1. May be unable to perform the functions of his office by reason of a mental or physical infirmity
  2. May have been involved in a corrupt transaction
  1. The advisory board shall give a copy of the request under (30 to the President at the same time as the request is made to the Chief Justice and the President may suspend the director or assistant director pending the final resolution of the matter
  2. Upon receiving a request under (3), the Chief Justice shall forthwith appoint a tribunal of three members, one of whom the Chief Justice shall designate as the chairman
  3. Each member of the tribunal shall be a person qualified to be appointed as a judge of the High Court or the Court of Appeal
  4. The tribunal shall conduct an inquiry in accordance with such procedures as it may determine
  5. The procedures of the tribunal shall be consistent with the rules of natural justice
  6. Within thirty days after concluding its inquiry, the tribunal shall:
  1. Publicly announce its finding and reasons
  2. Submit a report to the President

What are the restrictions on activities of staff?

  1. After being appointed, no staff of the Commission, including the director or assistant director shall:
  1. Be employed in any other work or business
  2. Hold any other public office
  3. Take any active part in the affairs of any political party or support any candidate for election to a public office
  1. A person who holds a public office and is seconded to the commission does not contravene the above only by virtue of continuing to hold that public office as long as the person performs no duties of that public office while seconded to the commission

What is the disciplinary code?

  1. The director shall issue a code for the commission providing for the discipline of its staff
  2. The code may provide for investigations and for the determination, including by a hearing of matters that may be in dispute
  3. The code may provide for penalties up to and including dismissal and may include provisions for the recovery of costs arising from loss of or damage to property of the commission

How shall other staff be removed?

In addition to any other ground on which a member of staff of the commission (not the director or an assistant director), may be removed from office, the member may so be removed by the director on the ground that the member has breached the code issued above or on the ground that the director no longer has confidence in the member’s integrity:

Provided that no member of staff shall be removed from office unless he has first been given a reasonable opportunity to show cause why he should not be so removed

How shall one be protected from personal liability?

  1. No action or proceeding for compensation or damages shall be brought against the director, an assistant director, an investigator or any staff of the commission in respect of anything done or omitted in good faith
  2. The commission shall not be relieved of any liability

How shall nominated members be appointed?

  1. It provides for the appointment of a member of the advisory board by a body
  2. The nominating body shall submit the names of two nominees to the minister
  3. The minister shall submit the names of the nominees to the National Assembly for approval within seven sitting days after receiving them
  4. The National Assembly shall, within fourteen days after it first meets after receiving the names of the nominees:
  1. Consider the nominees and either approve one of the nominees or reject both of them
  2. Notify the minister as to its approval or rejection under (a)
  1. If the National Assembly approves a nominee, the minister shall, within fourteen days after receiving the notification of the National Assembly, forward the name of the nominee to the President and the President shall, within fourteen days after receiving the name, appoint the nominee as a member of the advisory board
  2. If the National Assembly rejects both nominees submitted by the nominating body, the minister shall, within fourteen days after receiving the notification of the National Assembly, request the nominating body to submit a new nominee to the Minister
  3. In nominating and approving persons to be members of the advisory board, the nominating body and the National Assembly shall have regard to:
  1. The honesty and integrity of the person and the person’s knowledge and experience
  2. The importance of representing Kenya’s diversity on the advisory board
  1. Within seven days after any vacancy arises in the membership of the advisory board, the minister shall request the nominating body to submit nominees and the nominating body shall do so within twenty-one days after being requested to do so
  2. The following shall apply with respect to the initial appointment of the advisory board following the commencement of this Act:
  1. Each nominating body shall submit its initial nominees within twenty-one days after the commencement of this Act
  2. The minister shall wait until sufficient nominees are approved to form a quorum before submitting the names of the approved nominees
  3. Within fifteen days after a sufficient number of the members of the advisory board are appointed to form a quorum, the minister shall call a meeting of the advisory board for the purposes of nominating the initial chairman and vice-chairman

What shall be the term of members?

  1. The term of office of each nominated member of the advisory board shall be five years
  2. A person may not serve more than two terms as a member of the advisory board
  3. A member of the advisory board shall, unless his office becomes vacant by reason of his death, resignation or ceasing to hold office, continue in office until he is reappointed or replaced by another member appointed under the Act

When shall a member resign?

  1. A nominated member of the advisory board may resign by a written resignation addressed to the President
  2. A resignation is effective upon being received by the President or by a person authorized by the President to receive it

When shall one’s appointment be terminated?

The President, on the recommendation of the advisory board, may terminate a person’s appointment as a member of the advisory board only if the person:

  1. Is unable to perform the functions of his office by reason of a mental or physical infirmity
  2. Is adjudged bankrupt
  3. Is convicted of an offence under the Penal Code or this Act or an offence involving dishonesty
  4. Is absent from three consecutive meetings of the Advisory Board without reasonable excuse

When will one disclose personal interests?

  1. A member of the advisory board who has a direct or indirect personal interest in a matter being considered by the advisory board shall, as soon as reasonably practicable after the relevant facts concerning the matter have come to his knowledge, disclose the nature of his interest to the advisory board
  2. A disclosure of interest in a matter shall be recorded in the minutes of the meeting of the advisory board and the member shall not be present while that matter is being dealt with by the advisory board and shall not take part in any deliberations or vote relating to the matter

What shall be the allowances?

The commission shall pay the members of the advisory board such allowances and expenses as are determined by the minister in charge in finance in consultation with a committee of the National Assembly designated by the National Assembly for that purpose

Protection from personal liability

  1. No action or proceeding for compensation or damages shall be brought against a member of the advisory board or any other person authorized by the advisory board, in respect of anything done or omitted in good faith
  2. It shall not relieve the advisory board of any liability

How shall meetings of the Advisory Board be conducted?

  1. The advisory board shall have at least four meetings in every financial year and not more than four months shall elapse between one meeting and the next meeting
  2. Meetings shall be convened by the chairman, or in his absence by the vice-chairman
  3. Unless three quarters of the members otherwise agree, at least fourteen days’ notice of a meeting shall be given to every member
  4. A meeting shall be presided over by the chairman, or in his absence by the vice-chairman or in both their absences, by a person elected by the advisory board at the meeting for that purpose

How shall voting be conducted?

A decision of the advisory board shall be by a majority of the members present and in the case of an equality of votes, the person presiding at the meeting shall have a second or casting vote

How shall minutes be kept?

Minutes of all meetings shall be kept and entered in books kept for that purpose

 

 

SECTION

OFFENCE

PENALTY

Section 26

Failure to Provide Statement of Suspect’s Property

 

A person who neglects or fails to comply with a requirement under this section is guilty of an offence.

A fine not exceeding three hundred thousand shillings or imprisonment for a term not exceeding three years, or to both.

Section 27

Failure by suspect/ his associate or any other person to provide documents/ information relating to crime

 

A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to

A fine not exceeding three hundred thousand shillings or imprisonment for a term not exceeding three years, or to both

Section 33

Disclosure that may affect investigation

 

No person shall, except with leave of the Director or with other lawful excuse, disclose the details of an investigation under this Act, including the identity of anyone being investigated.

 

A fine not exceeding three hundred thousand shillings or imprisonment for a term not exceeding three years, or to both.

Section 34

Impersonating investigator

 

No person other than an investigator shall represent himself to be or act as an investigator.

 

A fine not exceeding three hundred thousand shillings or imprisonment for a term not exceeding three years, or to both.

Section 40

Secret Inducements for Advice

 

A person is guilty of an offence if the person receives or solicits or agrees to receive or solicit a benefit if the person intends the benefit to be a secret from the person being advised.

A person is guilty of an offence if the person gives or offers or agrees to give or offer a benefit if the person intends the benefit to be a secret from the person being advised.

 

 

 

A fine not exceeding one million shillings or imprisonment for a term not exceeding ten years or to both.

Section 41

Deceiving principal

 

An agent who, to the detriment of his principal, makes a statement to his principal that he knows is false or is misleading in any material respect is guilty of an offence.

An agent who, to the detriment of his principal uses or gives to his principal a document that he knows contains anything that is false or misleading in any material respect is guilty of an offence

 

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 42

Conflicts of Interests

 

If an agent has a direct or indirect private interest in a decision that his principal is to make the agent guilty of an offence if the agent knows or has reason to believe that the principal is unaware of the interest and the agent fails to disclose the interest and the agent votes or participates in the proceedings of his principal in relation to the decision.

An agent of a public body who knowingly acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body is guilty of an offence

 

 

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 43

Improper Benefits to Trustees for Appointments

 

A person is guilty of an offence if the person receives or solicits or agrees to receive or solicit from a trustee of property or gives or offers or agrees to give or offer, to a trustee of property a benefit that is an inducement or reward for the appointment of a person as a trustee of property or for joining or assisting in such an appointment.

 

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 44

Bid Rigging

 

A person is guilty of an offence if the person receives or solicits or agrees to receive or solicit a benefit; or gives or offers to give or offer a benefit that is an inducement or reward for :

  1. Refraining from submitting a tender, proposal, quotation or bid
  2. Withdrawing or changing a tender, proposal, quotation or bid
  3. Submitting a tender, proposal, quotation or bid with a specified price or with any specified inclusions or exclusions

 

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 45

Protection of Public Property and Revenue

 

A person is guilty of an offence if the person fraudulently or unlawfully:

  1. Acquires public property or a public service or benefit
  2. Mortgages, charges or disposes of any public property
  3. Damages public property, including causing a computer or any other electronic machinery to perform any function that directly or indirectly results in a loss or adversely affects any public revenue or service
  4. Fails to pay any taxes or fees, levies or charges payable to any public body or effects or obtains any exemption, remission, reduction or abatement from payment of any such taxes, fees, levies or charges.

An officer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person:

  1. Fraudulently makes payment or excessive payment from public revenues for:
  1. Sub-standard or defective goods
  2. Goods not supplied or not supplied In full
  3. Services not rendered or adequately rendered
  1. Willfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures
  2. Engages in a project without prior planning.

 

 

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 46

Abuse of Office

 

A person who uses his office to improperly confer a benefit on himself or anyone else is guilty of an offence

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 47

Dealing with Suspect Property

 

A person who holds, receives, conceals or uses the property or causes the property to be used or enters into a transaction in relation to the property or causes such a transaction to be entered into, that he believes or has reason to believe was acquired in the course of or as a result of corrupt conduct is guilty of an offence

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 47A

Attempts, Conspiracies

 

A person who attempts to commit an offence involving corruption for an economic crime is guilty of an offence

A person attempts to commit an offence of corruption or an economic crime if the person, with the intention of committing the offence, does or omits to do something designed to its fulfillment but does not fulfill the intention to such an extent as to commit the offence

A person who conspires with another to commit an offence of corruption or economic crimes is guilty of an offence

A person who incites another to do any act or to make any omission of such a nature that, if that act were done or the omission were made, an offence of corruption or an economic crime would be committed, is guilty of an offence.

 

 

 

A fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.

Section 56

Preserving Suspect Property

 

Failure to comply with an order the Court or Commission served upon one, to preserve suspect property

 

A fine not exceeding two million shillings or imprisonment for a term not exceeding ten years, or to both.

Section 56A

Failure to comply with Orders of Preservation of Suspect Property

 

A person who has or who appears to have custody or control of the property, or the Registrar, upon being served with a notice by the Commission or Receiver appointed by the Commission commits an offence if he deals with the property in any manner inconsistent with the instructions of the receiver, except by authority of a court order.

A fine not exceeding two million shillings or to imprisonment for a term not exceeding ten years, or both for a first offence, and

 

imprisonment for a term not exceeding ten years without the option of a fine for a subsequent offence in respect of the same property

Section 66

Obstructing persons under this Act,

 

No person shall without justification or lawful excuse, obstruct or hinder, or assault or threaten, a person acting under this Act; or

 

deceive or knowingly mislead the Commission or a person acting under this Act; or

 

destroy, alter, conceal or remove documents, records or evidence that the person believes, or has grounds to believe, may be relevant to an investigation or proceeding under this Act; or

 

make false accusations to the Commission or a person acting under this Act.

 

A fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding five years, or to both.

 

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