Transferof Prisoners Act 22of 2015 - as Plain Text by MWakili

)& '''-nSG SPECIAL ISSUE rl)F' \*'o Kenya Gazette Supplement No.

177 (Acts No.22) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 201 5 NAIROBI, lzth October, 2015 (*,*, t4 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI IIII l67l THE TRANSFER OF PRISONERS ACT No.

22 of 2015 Date of Assent: 8th October, 2015 Date of Commencement: By Notice ARRANGEMENT OF SECTIONS Section PART I-PRELIMINARY 1-Short title and Commencement.

2-Object of Act.

3- Interpretation.

4-Application of Act.

PART II_TRANSFBR OF PRISONERS 5 - Attorney-General' s consent required for transfer.

6-Consent of prisoner and prisoner's representative.

l, 7-Conditions for transfer of prisoners.

'i8-Eligibility for ffansfer of prisoners to Kenya.

, ,] ,-Conditions for transfer from Kenya.

;i.^- ,0-Transfer to Kenya.

li rl PART III-TRANSFER FROM KENYA 11-Application for transfer from Kenya.

12-Preliminary consideration of application for transfer of a prisoner from Kenya.

13-Formal request for transfer.

14- Information to accompany a formal request.

15- Government's consent to transfer from Kenya.

16- Issues of warrant for transfer from Kenya.

17- Warrants for transfer from Kenya.

18- Cancellation of warrant for transfer from Kenya.

PART IV_TRANSFER TO KENYA 19- Application for transfer.

1618 Tr an s.fb ro.fPriso tte rs 2015 No.22 20- Transfer request from sentencing country.

2l -Information to accompany request.

ZZ-Enforcement of sentence by court in sentencing country.

23 -Government's consent to transfer to Kenya.

24-Formal consent to transfer.

25 -Issue of warrant for transfer to Kenya.

26- Wanants for transfer to Kenya.

27 - Cancellation of warrant.

28- Effect of warrant on prisoner's sentence.

PART V_ENFORCEMENT OF SENTENCE 29-Prisoner ffansferred from Kenya taken to be prisoner of transfer Country.

30-Pardon, amnesty or commutation of sentences of imprisonment of prisoners transferred from Kenya.

31-Sentence enforcement in Kenya.

32-Dtxatron and nature of enforced sentence.

33 - Directions concerning enforcement of sentence.

34-No appeal or review of sentences of imprisonment imposed by the transfer country, etc.

35-Prisoners who are transferred to Kenya.

36-Pardon, amnesty or commutation of sentences of imprisonment of prisoners transferred to Kenya.

PART VI_MISCELLANEOUS 37 -Recovery of costs and expenses of transfer.

38-Prisoner and prisoner's representative to be kept informed.

39-Power of Attorney -General to delegate powers under this Act.

40-Transit of prisoners through Kenya.

4l -Arrest or persons escaping from custody.

42-Prisoner being transferred to or from Kenya under warrant in lawful custody.

43-Power to make regulations.

1619 II 2015 Transfer of Prisoners No.22 II THE TRANSFBR OF PRISONERS ACT I AN ACT of Parliament to facilitate the implementation of arrangements made for the transfer of persons serving sentence of imprisonment for criminal offences committed in Kenya or in countries outside Kenya, pursuant to subsisting agreement ENACTED by the Parliament of Kenya, as follows- PART I-PRELIMINARY 1.

This Act may be cited as the Transfer of Prisoners Short tltle and Act, 2015 and shall come into operation on such date as the commencemenl Attorney-General may, by notice in the Gazette, appoint.

2.

The object of this Act is to facilitate the transfer of ObJect ofAct prisoners between Kenya and countries with which Kenya has entered into agreements for the transfer of prisoners to enable the prisoners to serve out their sentences of imprisonment in the countries of their nationality or in countries with which they have community ties.

3.

(1) In this Act, unless the context otherwise Interpretatlon requires- "administering country" means the country of origin of a prisoner serving a sentence in Kenya; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for immigration; "Cabinet Secretary concerned" means the Cabinet Secretary responsible for matters relating to the matter for which the sentence has been imposed; "community ties" shall have the meaning assigned to it by subsection (4) and (5); "continued enforcement method" in relation to a sentence of imprisonment, means enforcing the sentence- (a) without modifying the duration of the sentence of imprisonment or its legal nature; or (b) with only such modifications to the duration of the sentence or its legal nature as the Attorney- General may consider are necessary to ensure that enforcement of the sentence is consistent with the law of Kenya; "escort officer" in relation to a prisoner, means the police officer, prison officer or other person specified in the 1680 Transfer of Prisoners 2015 No.22 warrant authorizing the transfer of the prisoner under this Act as the escort officer for the prisoner; "extradition country" means any country that is declared by the regulations to be an extradition country; prisoner who is a citizen of an "Kenyan citizen" shall have the meaning assigned to it under the Kenyan Citizenship and Immigration Act, 20tr; I "mental illness" shall have the meaning assigned to it i under the Mental Health Act; I "mental impairment" includes senility, intellectual disability, mental illness, damage or severe personality disorder; I "mentally impaired prisoner" means- (a) a person serving a sentence of imprisonment, who is acquitted for an offence on the ground of mental impairment; or (b) a person serving a sentence of imprisonment because the person has been found mentally unfit to stand trial; "national" in relation to a country, means a person who is a citizen of the country under that country's law; "non-parole period" in relation to a sentence of imprisonment, means the part of the term of imprisonment for that sentence during which the person is not to be released on parole, whether that part of the term is fixed or recommended by a court or fixed by operation of law; "police officer" means a member of the National Police Service; "prison officer" means a person appointed or employed to assist in the management of a prison; "prisoner" means a person who is serving a sentence in a country outside Kenya and includes- (a) a mentally impaired prisoner; and (b) a person who has been released on parole; "prisoner's representative" means a person whom the prisoner has authorized to consent to the prisoner's transfer as set out to in section 6; l68l 2015 Transfer oJ Prisoners No.22 "Regulations" means regulations made under this Act and in force: "release on parole" means any form of conditional release in the nature of parole.

and includes- (a) release on probationl and (b) release on licence to be at large; "responsible authority" means the authority responsible for matters related to correctional services in a sentencing country; "sentence" means any punishment or measure involving deprivation of liberty ordered by a court for a detcrminate or indeterminate term in the exercise of its criminal jurisdiction, and includes any direction or order given or made by the court with respect to the commencement of the punishment or measure; "sentencing country" means a country in which a sentence of imprisonment is imposed and the prisoner is helo in custody; ll "superintendent" in relation to a prison means the li person for the time being in charge of the prison; "transfer country" means a foreign country whose citizen or with which a person wiih coinmunity ties is ir imprisoned in Kenya; "treaty" includes a convention, protocol.

agreement or arrangement.

(2) For the purposes of this Act, the following persons shall be deemed to be serving a sentence of imprisonment- (a) a person who has been released by a court from serving the whole or a part of a sentence of imprisonment upon giving a security, with or without sureties by recognizance or otherwise, that the person will comply with conditions relating to the person's behavior and in relation to whom action can no longer be taken because of a breach of a condition of the security or because of the expiration of the securityl (b) a person who, through the exercise of the prerogative or mercy or other executive prerogative or discretion given by law, is no r 682 Transfer of Prisotters 2015 No.22 longer required to serve the whole or part of a sentence of imprisonment: (c) a person on whom a sentence of imprisonment has been imposed but which has not yet begun.

(3) If a sentence of death imposed on a person has been commuted to a term of imprisonment or to imprisonment for life, this Act shall apply to and in relation to the person as if the sentence of death had been a sentence of imprisonment for that term or for life.

(4) For the purposes of this Act, a prisoner has community ties with a transfer country if- (a) the prisoner's principal place of residence immediately before being sentenced to imprisonment in Kenya was in the transfer country; (b) the prisoner's parent, grandparent or child has a principal place of residence in the transfer country; (c) the prisoner has a close continuing relationship involving frequent contact and a personal interest in the other person's welfare with anyone whose principal place of residence is in the transfer country.

(5) For the purposes of this Act, a prisoner has community ties with Kenya if- (a) the prisoner's principal place of residence immediately before being sentenced to imprisonment in the transfer country was in Kenya; (b) the prisoner's parent, grandparent or child has a principal place of residence in Kenya; (c) the prisoner is married to anyone whose principal place of residence is in Kenya; (d) the prisoner has a close continuing relationship, involving frequent personal cqntact and a personal interest in the other person's welfare with anyone whose principal place of residence is in Kenya.

4.

This Act shall apply in case where an agreement for Apphcatron of the the transfer of prisoners subsists between Kenya and a Act sentencing country.

l6tt3 20ls Tru rr sfe rof Prixtrtcr,t No.22 PART II_TRANSFER GENERALLY 5.

(1) A prisoner may be transferred upon a request or Att.rrel-Gcnctal's application_ - ----'J --' -'r --- -' - --r---"- -- consc.trequrredrbr (a) to the government of Kenya by the sentencing country; (b) by the Government of Kenya as the sentencing country; or (c) by or on behalf of the prisoner to the Attorney- General, and subsequent action by the Attorney- General.

(2) Upon application made in writing to the Attorney- General by a prisoner serving a sentence of imprisonment in a prison of a sentencing state, the Attorney-General shall communicate such application to the sentencing state for consideration.

(3) If the Attorney-General is informed by the responsible authority of a sentencing country that it agrees with a request or an application for transfer of a prisoner to Kenya, the Attorney-General shall advise the responsible authority as to whether or not the Government of Kenya agrees to such transfer, and if both governments agree thereto, the Attorney-General shall initiate the transfer procedure.

6.

(l) A prisoner may consent to being transferred Consent of pr rsoner and prrsoner's under this Act only if the prisoner is an adult and capable reprc\eotatrve of so consenting.

(2) Where a prisoner is a minor, or is incapable of consenting to a transfer under this Act, such consent may be given by the prisoner's parent, guardian or legal representative.

(3) A prisoner or prisoner's representative has a right to be informed, in a language, including sign language or Braille, in which the prisoner or prisoner's representative is able to communicate with reasonable fluency, of the legal consequences of transfer of the prisoner under this Act before consenting to the transfer.

(4) In the case of a prisoner in a transfer country, a person who has not reached the age that under the law of that country is the age at which a person is considered for I ()li-l No.

22 'l'rrtttsft'r ttf J'rt.srtttt'tt 2015 legal purposcs to be an adult.

such pr-rson shall not give any cousent uncler this Act.

7.

A prisoner nray be transferred hctrveen Kenya and a ( ordrtrons 1or transf-er country under this Act if the follorvins conditions tr.rrrsl'er of pnsoncr s are satisfied- (a) the prisoner is eligible for transfer from or to Kenya: (b) Kenya and the transfer country have an agreement for the transf'er of the prisoner under this Act; (c) the prisoner or the prisoner's representative has consented in writing to the transfer on the agreed terms; (d) the appropriate consent in writins has been eiven to transfer on the agreed terms; (e) the relevant conditions for transf-er of the prisoner are satisfiedl (f) the transfer of the prisoner is not likely to prevent the surrender of the prisoner to any extradition country- (i) known by the Attorney-General to have requested the extradition of the prisoner or to have expressed interest in extraditing the prisoner; or (ii) that, in the opinion of the Attorney-General, is reasonably likely to request the prisoner's extradition.

8.

(l) A prisoner shall be eligible for transfer to Kenya Elrgrbtlrty for tr.rnster of pilsoners from a sentencing country under this Act if the prisoner- 10 Ken) a (a) is a Kenyan citizen; (b) is permitted to travel to, enter and renrain in Kenya indefinitely under the Kenya Citizenship and Immigration Act, 2Oll and has community ties with Kenya; and (c) the offence for which the sentence is imposed is punishable under Kenyan law.

(2) lf a request is made fbr the transfer of a prisoner to Kenya, the Attorney-General shall consult with the Cabinet Secretary responsible for immigration about whether the prisoner- lbl(-1 2015 I'r utrsf t'ro.f Prtsorters' No.22 (a) is eligitrle under subscction (l ) lbr a transfcr to Kenya: or (b) is likcly to be eligible under slrbsiection (l) 1or a transfer to Kenya a1 aI'uture tinre specified b1, the Attorney-Genc'rai.

9.

( 1) The conditions ['or the transt'er frorn Kenya of a prisoner.

other than a mcntalll, inrpaired pris<tner, slrall be as follor,vs- (a) neither the sentence of imprisonntent imposed by the Kenyan court nor the conviction on which it is based is subject to appeal; and (b) subject to subsection (3), the acts or omissions constituting the off'ence in relation to rvhich the prisoner is serving the sentence in Kenya would.

if the acts or omissions had occurred in the transfer country, have constituted an off-ence in transt-er country, and (c) in a case rvhere the sentence of imprisonment is deterrrinate, on the day of receipt of the request lbr transfer - (i) at least six months of the prisoner's sentence remains to be served, whethcr or not the prisoner has been released on parole: or (ii) a period shorter than six months rernains to be served and the Attorney-General has decided that.

in the circumstances, transfer for a shorter period is acceptable.

(2) The conditions for transf'er frorn Kenya of a mentally impaired prisoner shall be deemed to be satisfied if- (a) neither the sentence of imprisonment imposed by the Kenyan court nor the acquittal or finding of unfitness to stand trial on which it is based is sublect to appeal; or (b) subject to subsection (3).

the acts or omissions constituting the offence- (i) in respect of which the prisoner was charged but acquitted on the ground of mental impairment ol fbund unfit to stand trial: and I 686 No, 22 Trans.fer o.f Pristttrcrs 2015 (ii) in relation to which the prisoner is serving the sentence in Kenya.

would.

if the acts or omissions had occurred in the transfer country, have constituted an offence in the transfer country; and (c) in a case where the sentence of imprisonment is determinate.

on the day of receipt of the request for transfer- (i) at least six months of the prisoner's sentence remains to be served, whether or not any review affecting the duration of the sentence is pending; or (ii) a period shorter than six months remains to be served, and the Attorney-General has decided that, in the circumstances of the case, transfer for a shorter period is acceptable.

(3) The Attorney-General may exempt particular cases from the requirements of subsection (1) (b) or (2) (b).

10.

(l) The conditions for the transfer to Kenya of a rrans|ertoKenva prisoner, other than a mentally impaired prisoner, shall be as follows- (a) neither the sentence of imprisonment imposed by the court in sentencing country nor the conviction on which it is based is subject to appeal under the law of that country; (b) subject to subsection (3), the acts or omissions constituting the offence in relation to which the prisoner is serving the sentence in the sentencing country would, if the acts or omissions had occurred in Kenya, have constituted an offence in Kenya; and (c) in a case where the sentence of imprisonment is determinate, on the day of receipt of the request for transfer- (i) at least six months of the prisoner's sentence remains to be served (whether or not the prisoner has been released on parole); or (ii) a period shorter than six months remains to be served and the Attorney-General has decided that, in the circumstances, transfer for a shorter period is acceptable.

1681 20ts Transfer o.f Prisoners No.22 (2) The conditions for transfer to Kenya of a mentally impaired prisoner shall be as follows- (a) neither the sentence of imprisonment imposed by the sentencing country's court nor the acquittal or finding of unfitness to stand trial on which it is based is subject to appeal under the law of the sentencing country; and (b) subject to subsection (3), the acts or omissions constituting the offence- (i) in respect of which the prisoner was charged but acquitted on the ground of mental impairment or found unfit to stand trial; and (ii) in relation to which the prisoner is serving the sentence in the sentencing country.

would, if the acts or omissions had occurred in Kenya, have constituted an offence in Kenya; and II (c) in a case where the sentence of imprisonment is determinate, on the day of receipt of the request for transfer a period of six months or less of the t' prisoner's sentence remains to be served, whether or not any review affecting the duration of the sentence is pending, and the Attorney-General had r decided that, in the circumstances, transfer for a shorter period is acceptable.

(3) The Attorney-General may exempt any particular cases from the requirements of subsection (1) (b) or (2) (b).

PART ITI_TRANSFER FROM KENYA 11.

A prisoner serving a sentence of imprisonment in Apphcahons for Kenya, or the prisoner's representative, may apply to the transfer fiom Kenya.

Attorney-General, in the manner prescribed by the regulations, for transfer of the prisoner to a transfer country to complete serving the sentence on terms agreed in accordance with this Act.

12.

(1) The Attorney-General shall forward a copy of Prelimrnary consrderatron of an application received under section 11 to each Cabinet appllcatron for Secretary, is any, who has or is likely to have an interest in transfer of a pnsoner from Kenya.

the transfer.

(2) A Cabinet Secretary to whom an application is forwarded shall advise the Attorney-General of any matter that the Cabinet Secretary considers relevant to the processing of the application.

I 688 Transfer o.f Prisoners 2015 No.22 (3) A Cabinet Secretary to whom an application is forwarded may request the Attorney-General to obtain from the transfer country information that is relevant to the Cabinet Secretary's assessment of the application.

(4) The Attorney-General- (a) shall notify a transfer country of an application for transfer to that country; and (b) may request the transfer country to indicate its provisional views on the application, including the method by which it is likely that the sentence of imprisonment would be enforced by the transfer Cap 76 country if, following a formal request for transfer, it consents to the transfer.

(5) The Attorney-General may provide the transfer country with- (a) details of any request for extradition of the prisoner that has been made under the Extradition (Contiguous and Foreign countries) Act or the Extradition (Commonwealth countries) Act or of any expression of interest in extradition made by another country or of any country that, in the opinion of the Attorney-General, may wish to extradite the prisoner; and (b) any other information that the Attorney-General considers may assist the transfer country in giving its provisional views on the proposed transfer.

13.

(1) The Attorney-General may make a formal Formal request for request in writing for the transfer of a prisoner from Kenya transfer to a transfer country.

(2) In deciding whether to make a formal request under subsection (1), the Attorney-General may take into account any matter the Attorney-General considers relevant, including any matter advised by a Cabinet Secretary.

(3) Any transfer granted under this section shall be subject to the provision of section 8.

14.

A formal request for transfer from Kenya to a lnformatron to accompmy a formal transfer country shall be accompanied by- request.

689 I 2015 Trun.sfer of I'rrstmcr:' No.

22 (a) infbrmation required to be provided in accordancc rvith arrangenlents made with the transfer country; and (b) any other available information which the Attorney-General considers relevant to the request and that may appropriately be provided.

15.

(l) The Attorney-General shall notify the prisoner Go\cmlnent's con\ent t0 transfer or the prisoner's representative and any Cabinet Secretary tiom Kcnya who appears to the Attorney-General to be responsible for matters which relate to the transfer- (a) of the decision of the transfer country with respect to the request; (b) where the consent is given, of the proposed method by rvhich the sentence of imprisonment shall be enforced by the transfer country: and (c) any other proposed terms of the transfer.

(2) The prisoner or prisoner's representative and the Cabinet Secretary concerned shall advise the Attorney- General as to whether they consent to the transfer on the terms proposed by the transfer country.

(3) The Attorney-General shall- (a) decide whether or not consent should be given for the transfer of a prisoner on the terms proposed by the transfer country; and (b) notify the transfer country whether consent- (i) has been given for the transfer of the prisoner on those terms; or (ii) shall be given if the transfer country agrees to vary the terms proposed in a particular way.

16.

The Attorney-General may, subject to Part II, Issues of u arrant for issue a warrant.

in the form prescribed by the regulations, transfer lrom Kenya for the transfer of a prisoner from Kenya to a transfer country if written consent has been given by the prisoner or the prisoner's representative - (a) on the terms proposed by the transfer country; or (b) where the transfer country has agreed to vary the terms, on the terms as varied.

I 690 Transfer of Prisoners 2015 No.22 17.

(l) A warrant for the transfer of a prisoner from Wanants for transfer Kenya shall authorize the transfer of the prisoner fbrm lrom Konya Kenya to the transfer country to complete serving the sentence of imprisonment in accordance with terms agreed under this Act.

(2) A warrant for transfer from Kenya shall- (a) specify the name and date of birth of the prisoner to be transferred; (b) specify the transfer country to which the prisoner is to be transferred; and (c) confirm that both the prisoner's representative and the transfer country have consented to the transfer.

(3) If the prisoner is a prisoner other than a prisoner who has been released on parole, the warrant shall- (a) require the superintendent of the prison, or the person in charge of the hospital or other place in which the prisoner is serving the sentence of imprisonment, to release the prisoner into the custody of a person specified in the warrant; and (b) authorizethe person to take the prisoner to a place in Kenya and, if necessary, to detain the prisoner in custody for the purpose of placing the prisoner in the custody of an escort officer for transport out of Kenya; (c) authorize the escort officer to transport the prisoner in custody out of Kenya to the transfer country for surrender to a person appointed by the transfer country to receive the prisoner.

(4) If the prisoner has been released on parole, the warrant shall- (a) specify any approvals, authorities, permissions or variations to the parole or other order or licence that have been made under any Kenyan law; and (b) specify any procedures for the transfer of the prisoner to the transfer country that have been agreed on with the transfer country and give any necessary authorisation and directions.

(5) The Attorney-General may take any action that is necessary to ensure that the warrant is executed in accordance with its intended effect.

l69l 20ls Truns.fb r of Pri srtn ers No.22 18.

(l) The Attorney-General may cancel a warrant Cancellatron of warrant for transl'er for transfer from Kenya at any time before the prisoner to lronr Kenya whom it relates leaves Kenya.

(l), (2) Without prejudice to the generality of subsection the Attorney-General shall cancel the warrant if the prisoner or prisoner's representative or the transfer country concerned, withdraws consent to the transfer.

PART IV_TRANSFER TO KENYA 19.

An application for transfer of a prisoner to Kenya Applrcahon tbr may be made by the prisoners or by the Attorney-General transfer.

in accordance with section 5.

20.

The Attorney-General may consent to a request Transfer request tiorn sentenclng from a sentencing country for the transfer of a prisoner country serving a sentence of imprisonment in that country to Kenya to complete serving the sentence on terms agreed under this Act, if the Attorney-General is satisfied that such a transfer fulfils the conditions set out in section 9.

21.

Before consenting to the transfer of a prisoner to lnlbrmatlon to Kenya under this Part, the Attorney-General may request accompany requesl the sentencing country to provide- (a) details of any request for the transfer of the prisoner that has been made to the sentencing country or of any country that has expressed interest in extradition of the prisoner or that is likely, in the opinion of the transfer country, to request extradition: and (b) any other information which the Attorney-General considers relevant to the assessment of whether consent should be given for the transfer of the prisoner to Kenya.

22.

Before consenting to the transfer of a prisoner to Enforcement of sentence by court rn Kenya under this Part, the Attorney-General shall- sentencrng counfy (a) decide, in accordance with Part V, the method by which the sentence of imprisonment imposed by the sentencing country will be enforced in Kenya if the prisoner is transferred ; and (b) advise the sentencing country of this and of any other proposed terms on which consent is proposed to be given to the transfer.

I 691 'l'ntttsf er ol Prisotrcrs 2015 No.22 23.

( l)Thc Attorney-Gcnerirl shall provide each (r()\LIttDtcttl \ r()D\eD1 1() tl.rD\lcr t() Cabinet Secretary conccrned rv'ith- kcnr.r (a) any infbrmation that the transfer country has given to the Attonrcy-General; and (b) particularrs ol' (i) the rnethod by u hich the Attorney-General considers the sentence of imprisonrnent imposed by the transfer country could be enforced by Kenya; and (ii) any other proposed terms of the transfer.

(2) Each Cabinet Secretary concerned shall advise the Attorney-General in r,vriting as to whether the Cabinet Secretary consents to the transfer on the terms proposed as soon as possible al'ter receiving the notification.

24.

The Attorney-General shall I or ual coD\cnI to - tran5l cr (a) formally notify the sentencing country as soon as possible after all appropriate consents to the transfer have been given; and (b) ask the sentencing country to formally consent to the transfer on the terms proposed by Kenya and to confirm the prisoner's formal consent to transfer on those terms.

25.

The Attorney-General may issue a warrant.

in the Irsuc ol_ uarrant lor form prescribed by the regulations.

for the transfer of the tr.rnslcr t() KcnvJ prisoner from a transfer country to Kenya if written consent has been given by the prisoner or prisoner's representative, or, where the transf-er country has agreed to vary the terms, on the terms as varied.

26.

(l) The sentcncing country shall issue a warrant to Wdrrarts li)r translcr authorize the transf-er of the prisoner from the sentencing to Kcnya country to Kenya to complete serving the sentence of imprisonment imposed by the sentencing country in accordance lvith terms agreed under this Act.

(2) A warrant fbr transfer to Kenya shall- (a) specify the name and date of birth of the prisoner to be transferred: (b) specify the sentencing country from rvhich the prisoner is to be transferred: and l.()l () r()ner.\ 2015 Trdn:tct f Prt No.22 (c) confirnr that (i) the prisouer's or prisoner's represer,tutive.

and (ii) the transl'er country.

hai,e each given their rvritten consent to the transfer.

(3) If the prisoner is a prisoner other tltan a prisoner r.vho has been released on parole.

the rvarrant shall- (a) authorize an escort otficer to collect the prisoner from a place, whether in Kenya or the sentencing country specified in the warrant: (b) if the place is in the transfer country- (i) authorize the escort of ficer to transport the prisoner in custody to Kenya for surrender to a person appointed by the Attorney-General to receive the prisoner: and (ii) if appropriate.

authorize the escort officer to escort the prisoner to the prison.

hospital or other place, in Kenya.

for the prisoner to begin serving the remainder of the sentence of imprisonment in accordance with this Act; (c) if the prisoner is escorted to a prison, require the superintendent of the prison to take the prisoner into custody to be dealt rvith in accordance with the terms agreed under this Act: and (d) if the prisoner is escorted to a hospital or other place, authorize the detention of the prisoner in that hospital or place to be dealt rvith in accordance with the terms agreed under this Act.

(4) If the prisoner has been released on parole.

the lvarrant shall- (a) specify the procedures (if any) for the transfer of the prisoner to Kenya that have been agreed upon with the sentencing country: and (b) give any necessary authorization and directions.

(5) The Attorney-General may givc any other direction or approval necessary to ensure the rvarrant is executed in accordance with its terms.

1694 l'rans of Pr i sotter s 2015 fbr No.22 27.

(l) The Attorney-General may cancel a warrant Cancellatron of for transf'er to Kenya at any time before the prisoner to warrant whom it relates leaves the sentencing country.

(2) The Attorney-General shall cancel the warrant if the prisoner or the prisoner's representative or the sentencing country concerned, withdraws consent to the transfer.

28.

The prisoner to whom a warrant relates shall be Eflcct of warrilt on entitled to be released when the prisoner has completed prtsoner's sentence serving the sentence of imprisonment in accordance with this Act unless any other law authorizes the prisoner's detention in respect of an offence other than that in relation to which the sentence of imprisonment was imposed.

PART Y_ENFORCEMENT OF SENTENCE 29.

On transfer of a prisoner from Kenya under this Pnsoner transfcned liom Kenya taken to Act, the sentence of imprisonment is taken for all purposes be pnsoner of in the transfer country, and the prisoner is a prisoner of the kansfer country transfer country.

30.

(l) During the period in which a sentence of Pardon.

amnesty or conrmutatlon of imprisonment is served in a transfer country by a prisoner sentences of transferred from Kenya under this Act, the prisoner's rmprtsonnrent of pnsoners transferred conviction may be quashed or otherwise nullified and the from Kenya prisoner may be pardoned or granted any amnesty or commutation of sentence of imprisonment that could be granted under Kenyan law as if the prisoner were serving the sentence of imprisonment in Kenya.

(2) If, during the period in which the sentence of imprisonment is served by a prisoner transferred from Kenya under this Act to a transfer country, the prisoner's conviction is quashed or otherwise nullified or the prisoner is pardoned or granted amnesty or commutation of sentence of imprisonment under Kenyan law, the Attorney-General shall immediately notify the transfer country that the prisoner should no longer be detained in custody or otherwise subjected to detention or supervision only because of the sentence of imprisonment.

31.

The Attorney-General may direct a sentence of Sentence enforcement ln imprisonment imposed on a prisoner by a court of a Kenya sentencing country to be enforced on transfer of the prisoner to Kenya under this Act by means of- (a) the continued enforcement method, or 1695 2015 Trunsfer of Prisoners' No.22 (b) he converted enforcement method.

32.

(l) The sentence of imprisonment to be enforced Duratlon md naturc ol cnlbrced under section 3l may not be more severe, in legal nature or sentence duration, than the sentence of imprisonment imposed by the sentencing country.

(2) Without prejudice to subsection (1)- (a) if the sentence of imprisonment imposed by the transfer country is for a determinate period, the sentence of imprisonment to be enforced under this Act may not be for a longer duration than that sentence: (b) if the sentence of imprisonment imposed by the sentencing country is for an indeterminate period, the sentence of imprisonment to be enforced under this Act shall, as far as practicable, be subject to similar terms affecting the duration of the sentence as those imposed in the transfer country; and (c) the sentence of imprisonment to be enforced under this Act may not be of a kind that involved a more severe form of deprivation of liberty than the sentence of imprisonment imposed by the sentencing country.

33.

(1) In ordering that a sentence of imprisonment be Drrectrons concemlng enforced by the continued enforcement method or the enfbrcement of converted enforcement method , the Attorney-General may, sentence.

subject to section 32, give such directions as the Attorney- General may consider appropriate as to the duration and legal nature of the sentence of imprisonment as it is to be enforced under this Act.

(2) Without prejudice to the generality of subsection (1), directions may be made- (a) as to the entitlement of the prisoner to be released on parole following the transfer; and (b) if the prisoner is a mentally impaired prisoner, as to any review to be undertaken of the mental condition of the prisoner and treatment to be provided to the prisoner following the transfer.

(3) For the purpose of forming an opinion or exercising a discretion under this section, the Attorney- 696 I No.

22 Truns.fer ttf Pristtttars 2015 General shall have regard to such factors as the Attorney- General may corlsider relevant.

including- (a) any submissions nrade by the sentencing country: (b) the sentence of irnprisonment that might have been in-rposed if the acts and omissions constituting the offbnce had been committed in Kenya; and (c) any limitations or requirement that in relation to the way in which a sentence of imprisonment imposed by the sentencing country may be enforced in Kenya arising from any agreement to rvhich Kenya and the sentencins country are parties.

34.

( I ) A prisoner rvho is transf'erred to Kenya under No appeal or revrew olsenterrces of this Act shall have no right of appeal or review in Kenya rmpnsonment against the sentence of imprisonment imposed by the court rmposed by the of the sentencins country.

trJn\ler country, etc (2) A prisoner shall have no right of appeal against a decision of the Attorney-General concerning the enforcement in Kenya under this Act of a sentence of imprisonment imposed by a court of a sentencing country.

35.

( l) Any period of the sentence of imprisonment as Pnsoncrs uho are translerred to originally imposed by the sentencing country served by the Kenya prisoner before the transf'er shall be deemed to have been served under the sentence of imprisonment as enforced under this Act.

(2) While serving a sentence of imprisonment imposed by a sentencing country that is enforced under this Act, a prisoner who is transferred to Kenya under this Act may be detained in a prison, hospital or any other place in Kenya.

(3) Any Kenyan law.

practice or procedure concerning the detention of prisoners shall apply in relation to the prisoner on and after transf'er to Kenya to the extent that it is capable of applying concurrently with this Act.

(4) Without prejudice to subsection (3), Kenyan law and practice and procedure relating to the following matters shall be applicable to a prisoner who is transferred to Kenya under this Act- (a) conditions of imprisonment and treatnrent of prisonersl 169'7 2015 Transfer of Prisoners No.22 (b) the release on parole ofprisoners; (c) the classification and separation of prisoners; (d) the removal of prisoners from one prison to another; (e) the removal of prisoners between prisons and hospitals or other places or between one hospital to other place and another; (0 the treatment of mentally impaired prisoners; and (g) the eligibility for participation in prison programs.

(5) A prisoner shall be entitled to any remission or reduction of the sentence of imprisonment imposed by the transfer country for which the prisoner would be eligible in accordance with any applicable Kenya law if the sentence were a sentence of imprisonment for an offence against a law of Kenya.

(6) Nothing in this section shall prevent the sentencing country from pardoning or granting amnesty to or quashing or otherwise nullifying the conviction of a prisoner serving Ia sentence of imprisonment imposed by the sentencing I country in Kenya in accordance with this Act, or from I commuting the sentence.

tI 36.

(l) During the period in which a sentence of Pardon, mesty or commutation of l imprisonment is served in Kenya by a prisoner transferred sntences of to Kenya under this Act, the prisoner may be pardoned or lmprisonment of t pnsoners transferred granted any amnesty or commutation of sentence of to Kenya.

I imprisonment that could be granted under Kenyan law if the sentence of imprisonment had been imposed for an offence against a Kenyan law.

(2) The Attorney-General may, in a form prescribed by the regulations, direct that a prisoner may not be detained in custody or otherwise be subjected to detention or supervision in Kenya under a sentence or imprisonment imposed by a sentencing country and enforced under this Act only because of that sentence of imprisonment if, during the period in which the sentence of imprisonment is served in Kenya, the sentencing country notifies the Attorney-General that the prisoner's conviction has been quashed or otherwise nullified or that the prisoner has been pardoned or granted amnesty or coflrmutation of sentence of imprisonment under the law of the transfer country.

I 698 Transfer of Prisoners 2015 No.22 PART VI_MISCELLANEOUS 37.

The terms agreed under this Act for the transfer of Recovery of costs and expenses of a prisoner may, if the Attorney-General considers it transfer appropriate, include terms relating to the recovery of the costs and expenses reasonably incurred in transferring the prisoner.

38.

The Attorney-General shall ensure that any Prisoner and prsoner's prisoner or prisoner's representative who makes a request representatlve to b for transfer under this Act is kept informed of the progress kept rnformed.

of the request.

39.

The Attorney-General may, in writing, delegate all Power ofAnomey- Ceneral to delegate or any of the Attorney-General's powers under this Act or powers under thrs the regulations to the Solicitor-General or to any Deputy Act.

Solicitor-General.

40.

(1) The following provisions apply to the transit in Transrt ofprrsoners custody through Kenya of a prisoner who is being through Kenya.

transferred from a sentencing country to another transfer country- (a) the prisoner may be transported in custody through Kenya for the purposes of the transfer; (b) if the aircraft or ship that transports the prisoner makes a landing or calls at a place in Kenya- (D the escort officers may hold the prisoner in custody at the place for a period not (ii) exceeding twenty-four hours ; police officers may provide such assistance at the place as is reasonable and necessary to facilitate transporting of the prisoner in custody.

(iii) any magistrate to whom application is made, in a form prescribed by the regulations, by or on behalf of the sentencing country concerned, shall issue a warrant ordering a person specified in the warrant to hold the prisoner in custody for such period or periods as the magistrate may consider necessary to facilitate the transport of the prisoner; (iv) the Attorney-General ffioy, on application made by the sentencing country concerned, authorize a magistrate in writing to issue a warrant ordering a person named in the 1699 2015 Transfer of Prisoners No.

22 warrant to hold the prisoner in custody for a further specified period in order to facilitate the transporting of the prisoner; or (v) the Attorney-General may, at any time, direct a person having custody of the prisoner under paragraph (iv) to release the prisoner from custody.

(2) The total period or periods of any custody in accordance with paragraph (1) (b) may not exceed ninety- six hours.

41.

(1) A police officer may, without a warrant, arrest Arrest or persons escaprng from a person if the officer believes on reasonable grounds that custody.

the person has escaped from custody authorized by this Act.

(2) As soon as practicable after arresting a person in accordance with subsection (l), a police officer shall take the person before a magistrate.

(3) If the magistrate is satisfied that the person has escaped from custody authorized by this Act, the magistrate may issue a warrant authorizing any police officer to return the person to the custody from which the person escaped.

42.

A prisoner who is being transferred to or from Prrsoner berng trmsfened to or Kenya under a warrant issued under this Act shall be from Kenya under deemed to be in lawful custody for the purpose of sections wanant rn lawful custody.

122,123 and 124 of the Penal Code.

Cap.63 43.

(1) The Attorney-General may make regulations Power to make prescribing matters- regulatrons.

(a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) The Regulations made under subsection (1) may make provision for or with respect to information to be provided to prisoners and other persons for the purposes of this Act relating to the international transfer of prisoners.

(3) The Regulations may prescribe offences for contravening, or failing to comply with, any of the regulations and provide for the imposition of a fine for such an offence not exceeding one hundred thousand shillings.

.