Act No: No. 16 of 2006
Act Title: WITNESS PROTECTION
SUBSIDIARY LEGISLATION
WITNESS PROTECTION REGULATIONS, 2008
[L.N. 10/2009.]

Revoked by L.N. 99/2011, r. 13.

WITNESS PROTECTION REGULATIONS, 2011

ARRANGEMENT OF REGULATIONS

1.

Citation.
2.

Interpretation.
4.

Application for witness protection.
5.

Inclusion of a witness or related person in the Witness Protection Program.
6.

Needs of vulnerable witnesses.
7.

Resettlement or relocation.
8.

Instructions to protected persons.
9.

Financial assistance to protected persons.
10.

Confidentiality.
11.

Non disclosure of former identity of applicant.
12.

Failure to comply with Regulations.
13.

Revocation of L.N. 10/2009.

SCHEDULES

FIRST SCHEDULE —

FORMS
SECOND SCHEDULE —

MEMORANDUM OF UNDERSTANDING: TEMPORARY PLACEMENT
THIRD SCHEDULE —

MEMORANDUM OF UNDERSTANDING: WITNESS

FOURTH SCHEDULE —

KENYA WITNESS PROTECTION AGENCY OATH OF OFFICE
FIFTH SCHEDULE —

KENYA WITNESS PROTECTION AGENCY RELOCATION AGREEMENT

WITNESS PROTECTION REGULATIONS, 2011
[L.N. 99/2011.]
1.
Citation

These Regulations may be cited as the Witness Protection Regulations, 2011.
2.
Interpretation

In these Regulations, unless the context otherwise requires—

“classified information” means information of such a sensitive nature and value that the unauthorized publication or disclosure thereof would pose a security risk to the state;

“medical officer” has the meaning assigned in section 2 of the Public Health Act (Cap. 242);

“security clearance” means an authorization that entitles a person to have access to information of a determined sensitivity or classification;

“security vetting investigation” means a systematic procedure used to examine and appraise a person to determine his or her security competence, including the continued monitoring;

“sensitive information” includes any information, material or resources of which the unauthorized disclosure, loss, compromise, misuse or damage is likely to—

(a)

cause serious harm to a person, a government or the legitimate activities of a Department, agency, Commission or institution;
(b)

be prejudicial to the establishment and maintenance of lawful methods for the maintenance of public safety; or
(c)

affect the defense, security or international relations of Kenya;

“vulnerable witness” means a witness who, for justified reasons, should be interviewed or allowed to testify in a special manner and includes children, victims of sexual and gender based violence, the elderly, persons who are ill or any other person who has been declared a vulnerable witness due to the personal characteristics of the witness, the type of offence committed or relationship between the witness and the perpetrator or other circumstances;

“witness protection officer” means a protection officer designated or appointed by the Director in accordance with the Act.
4.
Application for witness protection
(1)

A witness or a person who is related to a witness, who has reason to believe that his safety is or may be under threat by any person or group of persons, whether known to him or not, by reason of him being a witness or related to a witness, may apply for inclusion into the programme established pursuant to section 4 of the Act.
(2)

Where the witness or the person related to the witness is for any reason not able to make an application under paragraph (1) and there is reason to believe that the safety of a witness or a person who is related to a witness may be threatened, an intermediary, legal representative, parent or legal guardian, public prosecutor or the law enforcement agency may, make an application on behalf of the witness or the person related to a witness.
(3)

An application may be made on behalf of a child without the consent of his guardian or parent where the applicant, the investigator or the public prosecutor can prove to the Director that there are exceptional circumstances that warrant the application to be made without the consent.
(4)

A law enforcement agency, public prosecutor, legal representative or intermediary to whom a report that the life of a witness is in danger has been made, shall immediately investigate the report and if the report is found credible—

(a)

assist such a person with his or her application;
(b)

inform the Director of the application; and
(c)

submit the application to the Director or a protection officer.
(5)

An application—

(a)

by witness shall be made in Form A set out in the First Schedule;
(b)

by a person who is related to a witness shall be made in Form B set out in the First Schedule;
(c)

an application on behalf of a child, shall be made in Form C set out in the First Schedule:

Provided that where parental or guardian consent cannot be obtained, the application shall be accompanied by a notice of declination of protection in Form E set out in the First Schedule and a sworn statement stating the reasons for the declination; and

(d)

any other form, document, report or information that is necessary.
(6)

The witness protection officer from whose jurisdiction an application under this regulation originates shall submit a report, regarding every application for protection to the Director who shall consider each application, taking into account the matters specified in regulation 6.
(7)

The witness protection officer shall, after undertaking a threat and risk Assessment, make recommendations in the report submitted under paragraph (6), on whether the application should be accepted, denied or deferred.
(8)

Where the witness protection officer recommends that an application should be accepted, the witness protection officer shall also make recommendations relating to—

(a)

nature of the protection to be provided;
(b)

expected duration of protection; and
(c)

any particular circumstances that should be taken into account in the placement under such protection.
(9)

A witness protection officer shall, where he recommends that an application should be—

(a)

denied, provide the reasons for the recommendation and also recommend, where necessary, any alternative arrangements that can be made;
(b)

deferred, provide the reasons for the recommendation and also recommend the period within which the application should be finalised.
5.
Inclusion of a witness or related person in the Witness Protection Program
(1)

A witness or a person related to the witness shall participate in the programme voluntarily.
(2)

A witness or a person related to a witness shall not be included in the program unless all the conditions for inclusion into the witness protection program have been met and the witness or the person related to the witness has signed the Memorandum of Understanding referred to in sections 5, 6 and 7 of the Act.
(3)

The Memorandum of Understanding relating to inclusion into the programme on a temporary basis is set out in the Second Schedule.
(4)

The Memorandum of Understanding relating to admittance to the Witness Protection Program is set out in the Third Schedule.
(5)

Where a witness or a person related to a witness decides, after consultation with the Agency, not to pursue an application for inclusion into the programme, the witness or a person related to the witness shall submit a declination in Form D or in the case of a child in Form E set out in the First Schedule.
(6)

Where an application has been made for the inclusion of a child into the programme—

(a)

in accordance with regulation 4(3);
(b)

in respect of proceedings where the parent or guardian of the child is a suspect;
(c)

when the guardian or parent is not available; or
(d)

when the parent or guardian of the child has unreasonably withheld or is unable to give consent,

the child may be placed, if the Director is satisfied that it is necessary for the security and safety of the child, under temporary protection without the consent of the parent or guardian.

(7)

The Director shall, within seven days of including a child into the programme, apply to the High Court for a protection order under section 16 of the Act.
(8)

The Memorandum of Understanding shall, after a protection order has been made under paragraph (7) become a binding protection agreement.
(9)

Where the High Court declines to grant a protection order, after considering an application made under paragraph (7), the Director shall discharge such child from the programme.
(10)

The Director shall, where a child has been included in the programme without the consent of the child’s parent or guardian, become the curator ad litem of the child.
(11)

Where a witness who wishes to terminate the protection or assistance provided under section 10 of the Act or the Director has suspended the protection or assistance provided under section 11 of the Act, the witness or a person related to a witness shall complete the witness discharge in Form F set out in the First Schedule.
6.
Needs of vulnerable witnesses

In performing its functions under Act, the Agency—

(a)

shall consider the particular needs of vulnerable witnesses including children, elderly persons and persons with disabilities; and
(b)

may assign, where necessary, a person to assist the vulnerable witness through all stages of the Witness Protection Program.
7.
Resettlement or relocation

The Director shall, on the resettlement or relocation of a witness or a person related to a witness protected under the Act, negotiate on a case by case basis and complete a resettlement agreement set out in the Fifth Schedule.
8.
Instructions to protected persons
(1)

A witness protection officer may give, a witness who has been included in the programme, such instructions as he may consider necessary in the circumstances.
(2)

A witness who does not adhere to the instructions given under paragraph (1) may removed from the Witness Protection Program in accordance with section 10 of the Act.
9.
Financial assistance to protected persons
(1)

A witness or a person related to a witness who has been included in the programme shall, for the entire period of inclusion in the programme, be entitled to such allowances and support necessary to ensure that the dignity and basic human rights of that person are upheld.
(2)

The Director shall determine the allowances payable under paragraph (1) based on the needs of that person and the principle that the economic conditions of the protected person shall be similar to their situation before admittance to the programme, considering the legal sources of income:

Provided that the economic conditions shall not be above the usual social minimum scale of Kenya.
(3)

The Director may, where necessary, pay—

(a)

a subsistence or daily allowance to enable the protected person to cater for basic living expenses;
(b)

a situational allowance to allow for payment of any costs that are related to the specific needs of the protected person; or
(c)

program payments to allow for the payment of any costs that are related to the protection of the protected person.
(4)

The financial assistance provided to a witness or person related to a witness who is included into the programme shall, unless authorized by the Director, not exceed the amount necessary to cover costs of living and inclusion into an unfamiliar environment.
(5)

The Director may, after considering the evidence proving that—

(a)

the witness has forfeited income as a result of being included into the programme; or
(b)

the inclusion into the programme has resulted in financial hardship to the witness or to a person related to the witness or dependant,

authorize the payment of an allowance that is equal to the income forfeited be made payable to the witness, less witness fees payable under any other regulation or authorize the payment of an amount that exceeds the amount necessary to cover costs of living and inclusion into an unfamiliar environment.
10.
Confidentiality
(1)

Any documentation and information generated by the Agency shall be regarded as sensitive and be classified in accordance with the security policies and procedures of the Agency.
(2)

The Agency shall implement the following measures to ensure confidentiality—

(a)

vet all persons who have been identified to take up positions in the Agency;
(b)

require the Director and every member of staff to apply to the Agency for security clearance and submit themselves to a security vetting investigation, before taking up duty;
(c)

provide for mandatory vetting and re-vetting in accordance with the security policy of the Agency in the employment contract of all staff, contractors, or seconded staff;
(d)

a member of staff who is found to be unfit to be issued with the required security clearance, shall not be eligible for employment by the Agency;
(e)

a person who is already employed by the Agency, and who fails the vetting, may be removed from the Agency immediately effect and be dealt with in terms of the rules and regulations governing employment in the Agency;
(f)

the Director and every member of the Agency shall, upon taking up their office take an oath or make an affirmation set out in the in the Fourth Schedule.
(3)

A member of staff of the Agency shall not disclose any information to any third party without the specific authorization of the Director in accordance with section 30E of the Act.
(4)

Where the High Court has issued an order compelling a person to provide information relating to the exercise of functions under this Act or the protection of witnesses included in the programme, in terms of section 32 of the Act, the Director shall—

(a)

take the necessary steps to secure the protected person;
(b)

specify security measures relating to the handling of the information after disclosure; and
(c)

inform the protected person of such a disclosure:

Provided that such a disclosure may not be made if, in the opinion of the Director such notification may jeopardize the purpose for which the information is to be disclosed.
(5)

In determining whether information may be disclosed as provided for in section 31(2), the Director shall consider—

(a)

the reason for the disclosure;
(b)

whether the need for disclosure can be effectively met by other means;
(c)

the probability that the disclosure may endanger the life of the protected person, any unprotected person who is related to a protected person, or the integrity of the program;
(d)

whether there are effective means to limit the further disclosure of the information;
(e)

specific security measures regarding the handling of the information after disclosure;
(f)

any other factor that, according to the Director, is necessary.
11.
Non disclosure of former identity of applicant

A participant who has been provided with a new identity under the programme may, pursuant to section 23(1)(b) of the Act, request the Director for permission not to disclose his former identity in Form G set out in the First Schedule.
12.
Failure to comply with Regulations

A member of staff of the Agency who does not comply with these Regulations shall be liable to such disciplinary action as may be determined by the Director.
13.
Revocation of L.N. 10/2009

The Witness Protection Regulations, 2009, are revoked.

SECOND SCHEDULE

[Rule 5(3).]

MEMORANDUM OF UNDERSTANDING

TEMPORARY PLACEMENT: WITNESS

WITNESS PROTECTION PROGRAMME

PLACING UNDER TEMPORARY PROTECTION IN TERMS OF SECTION 9(2) OF THE WITNESS PROTECTION ACT, 2006

(witness and official to initial next to every point and bottom of every page)

A.

I .......................................................... confirm that I have been placed under temporary protection to enable the Director of Witness Protection Agency to conduct an evaluation to determine whether I or any related persons qualify for admission to the Witness Protection Programme.

B.

I further understand that such temporary protection is subject to the following conditions and will be terminated should I fail to comply with them :

(1)

I am obliged to make a full disclosure of my knowledge of the facts surrounding the case in which it is sought to place me as a witness to both the members of the unit which is investigating the case as well a members of the Witness Protection Agency, as may be required.
(2)

I am obliged to co-operate with the investigation unit in the investigation of the case in which it is sought to place me as a witness.
(3)

I am obliged to subject myself to a security check which may include:

(i) having my fingerprints / photograph taken,
(ii) subjecting myself to a polygraph test and / or other psychological or medical examination, and
(iii) making a full disclosure of any previous investigations and/or cases which is relevant to my application for protection in this case including whether I have ever previously been placed on a Witness Protection Programme.
(4)

I am obliged to make a full disclosure of my financial circumstances including all sources of income, liabilities, and assets as well as those of any related person where their particulars are within my knowledge. I confirm that I have been informed that such information will be relied upon to determine whether I or any related person qualifies for an allowance. I am furthermore required to waive my right to confidentiality referred to in section of the Income Tax Act and to authorize the Director and / or his Delegate to obtain information held by the Kenya Revenue Services in order to verify the stated income. I am aware that the willful disclosure of any false or misleading information will render me guilty of a criminal offence and any allowances fraudulently acquired will be recovered from me.
(5)

I am obliged to surrender any items, which in the opinion of the protection officers are not necessary to be in my possession while I have been placed in temporary protection. Should I fail to surrender the items and they are either stolen, damaged or destroyed, the Government shall not be responsible for any such loss or damage.
(6)

I am not permitted to be in possession of any dangerous weapons, illegal substances and any items, which have been unlawfully obtained.
(7)

I am obliged to submit myself and my property to a search if requested by a witness protection officer and any member who is responsible for my safety.
(8)

I may not abuse alcohol or narcotic substances or indulge in violent or disorderly or other anti social behaviour while under temporary protection or harass any other person who may also be at the place of safety.
(9)

I may not commit any offences while under protection.
(10)

I may not at any stage reveal to any other person the location of the safe house where I may be lodged, the identities or other particulars of any protected person or my handlers or their vehicles or any other information which could endanger the security of the Witness Protection Programme. I confirm that it has been explained to me that render myself guilty of a criminal offence should I make such a disclosure and I will be liable for the costs incurred should it be necessary to close down the place of safety.
(11)

I may not bring any persons to the place of safety.
(12)

I may not communicate with persons specified by either the investigating officer of my case or the members of the Witness Protection Agency.
(13)

I may not damage the place of safety or any property in or at such place of safety. I confirm that it has been explained to me that I will be liable for any such damage, which I have willfully or negligently caused.
(14)

I may not indulge in any conduct, which may endanger the security or other aspects of the operation of the Witness Protection Programme or which may endanger my life, or that of any other person.
(15)

I am obliged to comply with any orders given to me by anyone responsible for my safety, which orders are necessary for efficient security or which may contribute to the safety of the members of the Witness Protection Agency, a protected person or any other person in the place of safety concerned. I confirm that it has been explained to me that I render myself guilty of a criminal offence should I disobey any such orders.
(16)

I am obliged to disclose full particulars concerning any civil proceedings, which are or may be instituted by or against me or in which I am otherwise involved.
(3)

The Witness Protection Programme may not place me in a better financial position than prior to my admission to the programme.
(4)

No promises made to me by any member of the investigation unit are binding on the Director.
(5)

I hereby declare that I am aware of the fact that I may not at any stage, during or after I have left Witness Protection, reveal any of the following information to any person :

(a) (a) the address or location of a safe house,
(b) (b) the identity or particulars of any protected or formerly protected person,
(c) (c) the identity or particulars of any official or person employed by the Witness Protection Agency or their vehicles, or
(d) (d) any other information that may hamper the Witness Protection Agency's security.
6.

I hereby acknowledge that it has been explained to me and that I understand that if I disobey any of the conditions as explained in Paragraph 5 above, I might render myself guilty of a criminal offence and that I will be held responsible for any expenses incurred as a result of such an action or utterance.

Dated at .............................. this ................................day of ................................ 20..........

...............................................................

SIGNATURE OF WITNESS

I.................................................. holding the position of ..................................in the Witness Protection Agency confirm that I have explained each and every condition set out in B above subject to which the witness has been placed under temporary protection as well as the information set out in C above to the witness who has indicated that he / she understand and has initialed against each provision and affixed his / her signature at the designated place on this document. I further confirm that the provisions of this document was properly translated into..........................., by .................................. for the benefit of the witness.

.....................................................

....................................................

SIGNATURE

Designation

Dated at ............................ this ...........................day of ...................... 20 ...........

MEMORANDUM OF UNDERSTANDING

TEMPORARY PLACEMENT: RELATED PERSON

Witness Protection Programme

PLACING UNDER TEMPORARY PROTECTION IN TERMS OF SECTION 9(2) OF THE WITNESS PROTECTION ACT, 2006

(witness and official to initial next to every point and bottom of every page)

A.

I ........................................................ confirm that I have been placed under temporary protection in order for the Director: Witness Protection (hereafter called the Director) to conduct an evaluation in order to determine whether I qualify as a related person for admission to the Witness Protection Programme.
B.

I further understand that such temporary protection is subject to the following conditions and will be cancelled should I fail to comply with them :

(1)

I am obliged to subject myself to a security check which may include :

(i) having my fingerprints / photograph taken,
(ii) subjecting myself to a polygraph test and / or other psychological or medical examination, and
(iii) making a full disclosure of any previous investigations and / or litigation which .is relevant to my application for protection in this case including whether I have ever previously been placed on the Witness Protection Programme.
(2)

I am obliged to make a full disclosure of my financial circumstances including all sources of income, liabilities, and assets as well as those of any related person where their particulars are within my knowledge. I confirm that I have been informed that such information will be relied upon to determine whether I or any related person qualifies for an allowance. The willful disclosure of any false or misleading information will render me guilty of a criminal offence. Any allowance fraudulently acquired will be recovered from me. I am furthermore required to waive my right to confidentiality referred to in section ......... of the Income Tax Act ........ and to authorize the Director and / or his Delegate to obtain information held by the Kenya Revenue Services in order to verify the stated income.
(3)

I am obliged to surrender any objects, which in the opinion of the security officers are not necessary to be in my possession while I have been placed in temporary protection. Should I fail to surrender the items and they are either stolen, damaged or destroyed the State will not be responsible for any such loss or damage.
(4)

I am not permitted to be in possession of any dangerous weapons, illegal substances and any items, which have been unlawfully obtained.
(5)

I am obliged to submit myself and my property to a search if requested by a witness protection officer and any member who is responsible for my safety.

(6)

I may not abuse alcohol or narcotic substances or indulge in violent or disorderly or other anti social behaviour while under temporary protection or harass any other person who may also be at the place of safety.
(7)

I may not commit any offences while under protection.

(8)

I may not at any stage reveal to any other person the location of the safe house where I may be lodged, the identities or other particulars of any protected person or my handlers or their vehicles or any other information which could endanger the security of the Witness Protection Programme. I confirm that it has been explained to me that I render myself guilty of a criminal offence should I make such a disclosure and I will be liable for the costs incurred should it be necessary to close down the place of safety.
(9)

I may not bring any persons to the place of safety.

(10)

I may not communicate with persons specified by either the investigating officer of my case or the members of the Witness Protection Agency.
(11)

I may not damage the place of safety or any property in or at such place of safety. I confirm that it has been explained to me that I will be liable for any such damage, which I have willfully or negligently caused.

(12)

I may not indulge in any conduct, which may endanger the security or other aspects of the operation of the Witness Protection Programme or which may endanger my life, or that of any other person.

(13)

I am obliged to comply with any orders given to me by anyone responsible for my safety, which orders are necessary for efficient security or which may contribute to the safety of the members of the Witness Protection Agency, the protected person or any other person in the place of safety concerned. I confirm that it has been explained to me that I render myself guilty of a criminal offence should I disobey any such orders.

(14)

I am obliged to disclose full particulars concerning any civil proceedings, which are or may be instituted by or against me or in which I am otherwise involved.
C.

I confirm that over and above the above-mentioned conditions, the following has been explained to me and I understand

(i)

My placement in temporary protection does not absolve me from my existing debts and any further debts, which I may incur.
(ii)

My temporary protection does not absolve me from any legal obligations incurred by myself including any obligations regarding the custody and maintenance of children and taxation obligations.
(1)

Should I be placed under protection and given an allowance such allowance will be in accordance with the amounts prescribed in the regulations promulgated in terms of the Witness Protection Act and that the following will be taken into account:

(a) The amount of income earned at the time of the admission to the Programme.
(b) No income acquired from unlawful means will be considered.
(c) No income not declared for tax purposes will be taken into account.
(d) Living expenses that I or the related persons had prior to being placed under temporary protection which will no longer be incurred will be deducted from the determination of my income.
(e) Benefits provided by the Witness Protection Programme, including payments made to other related persons would be deducted from the determination of my income.
(2)

Should I require medical counseling or treatment this will be provided for by medical practitioners or institutions approved by the Director or his delegate.
(3)

The Witness Protection Programme may not place me in a better financial position than prior to my admission to the Programme.
(4)

No promises made to me by any member of the investigation unit are binding on the Director.
(5)

I hereby declare that I am aware of the fact that I may not at any stage, during or after I have left Witness Protection, reveal any of the following information to any person:

(a) the address or location of a safe house,
(b) the identity or particulars of any protected or formerly protected person,
(c) the identity or particulars of any official or person employed by Witness Protection or their vehicles, or
(d) any other information that may hamper Witness Protection's security.
(6)

I hereby acknowledge that it has been explained to me and that I understand that if I disobey any of the conditions as explained in Paragraph 5 above, I might render myself guilty of a criminal offence and that I will be held responsible for any expenses incurred as a result of such an action or utterance.

Dated at .................... this .............. day of ......................... 20 ............

SIGNATURE OF RELATED PERSON

I ...........................................holding the position ...............................................of in the Office for Witness Protection confirm that I have explained each and every condition set out in B above subject to which the witness has been placed under temporary protection as well as the information set out in C above to the witness who has indicated that he / she understands and has initialed against each provision and affixed his / her signature at the designated place on this document. I further confirm that the provisions of this document was properly translated into.............................................................., by ...................................................... for the benefit of the witness.

...........................................................

.............................................................

SIGNATURE

RANK

...........................................................

...........................................................

SIGNATURE (TRANSLATOR)

RANK

Dated at ..................................... on ...................... day of .................. 20 .......................

THIRD SCHEDULE

[Rule 5(4).]

MEMORANDUM OF UNDERSTANDING

WITNESS

WITNESS PROTECTION PROGRAMME

FOURTH SCHEDULE

[Rule 10(2)(f).]

FIFTH SCHEDULE

[Rule 7.]

KENYA WITNESS PROTECTION AGENCY

RELOCATION AGREEMENT

WITNESS PROTECTION RULES, 2015

ARRANGEMENT OF RULES

1.

Short title and commencement.
2.

Interpretation.
3.

Application of Rules.
4.

Protection of witnesses
5.

Protection measures.
6.

Duration of protective measure.
7.

Variation of a protective order.
8.

Public hearing.
9.

Closed or in camera hearing.
10.

Testimony by means of audio or video link technology.
11.

Qualifications for evidence of audio and video recorded interview.
12.

Video recorded evidence-in-chief.
13.

Evidence through an intermediary.
14.

Protecting the identity of a witness.
15.

Record of proceedings and record of evidence.
16.

Prohibition of publication of certain information relating to the proceedings.
17.

Application to Court.

WITNESS PROTECTION RULES, 2015
[L.N. 225/2015.]
1.
Short title and commencement

These rules may be cited as the Witness Protection Rules, 2015 and shall come into operation thirty (30) days after publication in the Gazette.

2.
Interpretation

In these rules, unless otherwise the context requires—

“Act” means the Witness Protection Act;

“Agency” means the Witness Protection Agency established by Section 3A of the Witness Protection Act;

“appropriate person” means any court official or any other person at the court point and the remote point who is required to be, or may be, present at the proceedings, including the presiding officer, the prosecutor, the accused, the accused's advocate, technical assistance, police officer, court clerk, any witness and members of the public who are entitled to be present;

“audio-link” means a live telephone link between the court point and the remote point which are both equipped with facilities which will enable audio communication between all appropriate persons at the court point and the remote point;

“audio-visual link” means a live television link between the court point and the remote point which are both equipped with facilities which will enable all appropriate persons at the court point and the remote point to follow the proceedings and see and hear all the appropriate persons;

"child" means a person who has not attained the age of eighteen years;

“Court” means a court of competent jurisdiction;

"court point" means the court room, or other place where the court having jurisdiction is sitting;

"intermediary” means a person appointed by the Court on account of their experience or expertise to assist the witness or vulnerable witness to give their evidence in Court and may include a parent, relative, doctor, psychologist, counselor, guardian, children officer, probation officer or social worker;

"intimidated witness" means anyone suffering from fear or distress in relation to testifying in a case before Court, or commission or Tribunal, or anyone whose quality of testimony is likely to be diminished by fear or distress in connection with testifying;

"police officer" has the same meaning assigned to it under the National Police Service Act, 2011 (No. 11A of 2011);

“protection officer" means a person appointed as such under section 3N (1) of the Witness Protection Act;

"publication" has the same meaning assigned to it under the Interpretation and General Provisions Act (Cap. 2);

"redaction" means the removal of any identifying information from a document;

"Registrar" means a registrar of the relevant court;

"remote point" means the room or place at the designated place where the accused person or the witness, appearing through audio-visual link is located;

“Rules” means the Witness Protection Rules, 2015;

“threatened witness” means a witness who fears that a threat which is express or implied of an intention to inflict harm, pain or misery will be carried out in circumstances in which a reasonable person would fear that the threat would be carried out;

“Tribunal” means the Witness Protection Appeals Tribunal established under section 3U of the Witness Protection Act, or other tribunal of competent jurisdiction;

“vulnerable witness” includes a child, person with mental disability or learning disability, physical disorder or disability, people likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case and persons who are vulnerable depending on the nature of the crime; and

“protection order” means an order of the Court directing protection of a witness.
3.
Application of Rules

These Rules shall apply to the proceedings with respect to a protected witness in accordance with section 36(2) of the Witness Protection Act (No. 16 of 2006).
4.
Protection of witnesses
(1)

The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of witnesses by having regard to all relevant factors, including age, gender, health and nature of the crime.
(2)

The Court shall, on its own motion or upon application made by the Agency or the prosecution make appropriate orders for the protection of a witness.
(3)

The Court may make a protection order if it is satisfied that—

(a)

the person before the Court or named in the application is a witness;
(b)

the person was a witness to, or has knowledge of an offence and is, or has been a witness in criminal proceedings relating to the offence;
(c)

the person was or is a witness in any other proceeding;
(d)

the person is a person who, because of their relationship to, or association with, a person to whom subparagraph (a), (b) and (c) applies, may require protection or other assistance;
(e)

the life or safety of the person may be endangered as a result of being a witness;
(f)

the protection measures alone or in combination shall most likely maximize and improve the quality of the eligible witness's evidence in the circumstance of the case;
(g)

a memorandum of understanding has been entered into by the witness in accordance with section 7 of the Act.
(4)

In determining whether the protection order should be granted, the Court shall take into account all the circumstances of the case, the eligibility criteria set out in this rule, and whether or not the protection order in question is likely to inhibit the evidence being effectively tested by any party to the proceedings or is not contrary to the interest of justice.
(5)

The Court shall hold in camera proceedings to determine whether to make the protection order.
(6)

Where the Court refuses to give an order for the protection of a witness, it shall record its reasoning for the refusal.
5.
Protection measures
(1)

The Court may make a protection order for any or a combination of the following appropriate measures to facilitate the testimony of a protected witness—

(a)

measures to prevent disclosure to the public or media of the identity or whereabouts of a witness, or of persons related to or associated with a witness by such means, including—

(i) expunging identifying information from the Court's public records;
(ii) redacting identifying information from the materials, statements and information disclosed to the accused or their advocate;
(iii) giving testimony through image or voice distortion or alteration devices or behind a screen;
(iv) assigning a pseudonym;
(v) closed session in accordance with rules on closed sessions;
(vi) prohibiting any party in the proceedings from disclosing any information to a third party of the protected witness; or
(vii) assigning a separate waiting room for a witness.
(b)

measures to allow production of evidence in the physical absence of the witnesses, including—

(i) using audio-visual technology, in particular, video conferencing and closed circuit television;
(ii) video recording evidence-in-chief and interviews; or
(iii) using the sound media or a live link;
(c)

measures that aid in the giving of evidence, including—

(i) using communication aids;
(ii) giving evidence through an intermediary;
(iii) changing the trial venue, or hearing date:
(iv) hearing a case on a day to day basis until completion; or
(v) permitting the expedited testimony of a protected witness where it is necessary in circumstance of the case to meet the ends of justice.
(2)

Any measure allowed by the Court for the protection of a witness shall not prejudice the rights of an accused person to fair trial.
(3)

The Registrar shall make available facilities and equipment to protect the safety, physical and psychological well-being, dignity and privacy of witnesses as ordered by the Court.
6.
Duration of protective measure

A measure ordered by the Court in respect of a witness in any proceedings before the trial Court shall last throughout the trial, or such period as maybe determined by the Court.
7.
Variation of a protective order
(1)

The Court may on its own motion, or on application by either party, apply for the protection order to be varied or discharged.
(2)

Before the Court makes an order under sub-rule (1), a party shall show that there has been a significant change of circumstances of the witness since—

(a)

the Court made the order; or
(b)

an application for it to be varied was last made.
(3)

The Court shall state, in open court, its reasons for giving, varying or discharging a protection order or rejecting such an application.
8.
Public hearing

A hearing shall be held in open court in the presence of the accused, or the accused's advocate and the public unless otherwise provided for in these rules.
9.
Closed or in-camera hearing
(1)

The Court may exclude a person, the press or public from all, or part of proceedings and order the proceedings to be held in camera for the following reasons—

(a)

protecting the rights of the accused or a witness;
(b)

public order or morality;
(c)

safety, security, privacy or non-disclosure of the identity of a witness as provided for in rule 4;
(d)

maintaining the dignity and decorum of the proceedings;
(e)

protecting the interests of justice; or
(f)

security of the State.
(2)

In any proceedings pending before the Court, the Court may, at the request of the Agency, or the prosecutor direct that any person whose presence is not necessary at the proceedings, or any person, or class of persons mentioned in the request shall not be present at the proceedings.
(3)

Despite sub-rule (2), judgment shall be delivered and sentence passed in open court if the Court is of the opinion that the identity of the person concerned shall not be revealed.
(4)

Where a witness before the Court is a child, the Court may on its own motion, direct that no person, other than a parent, or guardian or a person in loco parentis shall be present at the proceedings unless the person's presence is necessary in connection with the proceedings, or is authorized by the Court.
(5)

An application under this subrule may be made orally, or in writing and shall be heard in camera.
(6)

The Court shall make public the reasons for its orders.
10.
Testimony by means of audio or video link technology
(1)

Where it is in the interest of justice to do so, a trial court may, by an order on application of the Agency or the prosecution, dispense with the attendance of a witness whether resident in Kenya or outside the country, whose evidence is necessary but whose attendance cannot be secured without undue delay, expense or convenience.
(2)

The evidence referred to in sub-rule (1) may be given through video-link.
(3)

An application for the taking of such evidence through video-link technology shall be heard in camera and shall indicate—

(a)

the whereabouts of that person whose evidence is sought;
(b)

the date and place at which the evidence is to be taken;
(c)

a statement of the matter on which the person is to be examined; and
(d)

the circumstances justifying the taking or the giving of such evidence through video link.
(3)

The Court may allow a witness to give oral evidence by means of audio or video technology.
(4)

Despite sub-rule (3), the technology shall permit the witness to be examined by the prosecutor, the defence, or by the Court, at the time that witness testifies.
(5)

The Registrar shall ensure that the venue chosen for the conduct of the audio or video link testimony is conducive to—

(a)

the giving of evidence;
(b)

the safety, physical and psychological well-being of the witness; and
(c)

the dignity and privacy of the witnesses.
(6)

For evidence given under this rule to be admissible, it must satisfy the provisions of rule 11.
11.
Qualifications for evidence of audio and video recorded interview
(1)

The Court shall ensure that audio and video recording meet the technical requirements set out in sub-rule (2) for purposes of proceedings by way of audio-visual link.

(2)

The court point and the remote point must be equipped with facilities that enable appropriate persons—

(a)

at the court point to see and hear a person appearing before the court or making submissions, or any other appropriate person at the remote point and to follow the proceedings; and
(b)

at the remote point to see and hear all appropriate persons at the court point and to follow the proceedings.
(3)

The Court may, subject to sub-rule (4) below, direct that a matter is adjourned to the next court day in the event of—

(a)

an interruption of an audio-visual link;
(b)

an audio-visual link being of poor quality which, in the Court's opinion, is not in the interest of justice to continue the proceedings by way of audio-visual link; or
(c)

any equipment malfunctioning.
(4)

The Court may, in order to ensure a fair trial, give directions in any case as it may deem necessary.
(5)

The directions referred to in sub-rule (4) shall not be inconsistent with these Rules.
12.
Video recorded evidence-in-chief
(1)

The prosecution or the defence may apply to the Court for leave to admit into evidence video recorded evidence-in-chief.
(2)

The Court may allow the introduction of previously recorded audio or video evidence of a witness, or the transcript or other documented evidence of such testimony—

(a)

if the witness who gave the previously recorded evidence is not present before the Court, both the prosecution and the defence had the opportunity to examine the witness during the recording; or
(b)

if the witness who gave the previously recorded testimony is present before the Court, does not object to the submission of the previously recorded testimony and the prosecution, the defence and the Court have the opportunity to examine the witness during the proceedings.
13.
Evidence through an intermediary
(1)

Whenever proceedings are pending before any Court and it appears to the Court that it would expose any witness to undue mental stress, or suffering if the witness testifies at the proceedings, the Court shall, on its own motion or upon an application and subject to sub-rule (4), appoint a competent person as an intermediary in order to enable the witness give evidence through that intermediary.
(2)

No examination, cross examination or re-examination of any witness in respect of whom a Court has appointed an intermediary under subsection (1), except examination by the Court, shall take place in any manner other than through the intermediary.
(3)

An intermediary shall, if the Court so directs, convey the general purport of any question to the relevant witness.
(4)

An intermediary shall accompany a witness when that witness is testifying in Court.
(5)

When an intermediary accompanies a witness who is testifying in Court, the intermediary shall remain visible to the Court except when the Court makes an order that prevents the intermediary from being visible to the Court, or any other person present before the Court.
(6)

An intermediary shall swear or affirm to the Court that the intermediary shall—

(a)

assist the witness to the best of the intermediary's ability; and
(b)

not interfere with the witnesses, or the evidence of the witness.
(7)

In performing the functions of an intermediary, an intermediary may—

(a)

accompany, stand or sit near the witness;
(b)

give the witness the physical or psychological support that the witness may require;
(c)

stand, or sit in the full view of the witness; or
(d)

draw the attention of the Court if the witness is in distress.
(8)

An intermediary shall not instruct a witness regarding the giving of evidence.
(9)

In the interest of justice and for the protection of a witness, the Court may direct that an intermediary—

(a)

shall not do any act in relation to a witness; or
(b)

shall take such action in relation to a witness as the Court may require.
(10)

Where the Court appoints an intermediary for a witness, it shall inform an accused person, in writing, and shall give the accused person an opportunity to be heard regarding the appointment of the intermediary.
(11)

If a Court appoints an intermediary under sub-rule (1), the Court may direct that the relevant witness shall give evidence at any place—

(a)

that is informally arranged to set the witness at ease;
(b)

which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and
(c)

which enables the Court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through electronic or other media, that intermediary as well as that witness during their testimony.
(12)

The Court shall provide reasons for refusing any application, or request by the prosecution for the appointment of an intermediary.
(13)

An intermediary appointed by the Court in terms of sub-rule (1) shall be summoned to appear in Court on a specified date and at a specified place and time to act as an intermediary.
(14)

If, at the commencement of, or at any stage before the completion of the proceedings concerned, an intermediary appointed by the Court—

(a)

is for any reason absent;
(b)

becomes unable to act as an intermediary in the opinion of the Court; or
(c)

dies,

the Court may, in the interest of justice and after due consideration of the arguments put forward by the accused or the accused's advocate and the prosecution —

(a)

postpone the proceedings in order to obtain intermediary's presence;
(b)

summon the intermediary to appear before the Court to provide a reason for being absent;
(c)

revoke the appointment of the intermediary and appoint another intermediary; or
(d)

revoke the appointment of the intermediary and order that the proceedings continue in the absence of an intermediary.
(15)

The Court shall immediately give reasons for any direction, or order referred to in sub-rule 14 (d) which reasons shall be entered into the record of the proceedings.
14.
Protecting the identity of a witness
(1)

The Agency may apply to the High Court ex parte for an order for any document necessary—

(a)

to allow a witness to establish a new identity; or
(b)

to restore a protected person's former identity.

(2)

The application shall be made in writing and shall be heard in camera.
(3)

The Court shall make the order upon the Agency satisfying the requirements of rule 4 of these rules.
(4)

The Court may make an order authorizing a specified person to—

(a)

make a new entry in the register of births or register of marriages in respect of the witness;
(b)

make a new entry in a register of deaths in respect of the witness, or a relative by blood or marriage of the witness; or
(c)

issue in the witness's new identity a document of a kind previously issued to the witness.
15.
Record of proceedings and record of evidence
(1)

The Registrar shall cause to be made and preserved a full and accurate record of evidence of all proceedings, including audio recordings, transcripts and, when required by the Court, video recordings.
(2)

The Court, after giving due considerations to any matter relating to witness protection, may order the disclosure of all, or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist.
(3)

The Registrar shall retain and preserve all physical evidence produced during the proceedings subject to any practice direction, or any other order which a court may at any time make with respect to the control or disposition of physical evidence offered during the proceedings before the Court.
(4)

Photography, video recording or audio recording of the trial, otherwise than by the Registrar may be authorized by the Court.
16.
Prohibition of publication of certain information relating to the proceedings
(1)

Where the Court under these Rules or on any ground referred to in rule 9 directs that the public, the press or any class of persons shall not be present at any proceedings, or part of the proceedings, the Court may direct that no information relating to the proceedings, or part of the proceedings held behind closed doors shall be published in any manner.
(2)

A direction by the Court under sub-rule (1) shall not prevent—

(a)

prevent the publication of information of the name and personal particulars of the accused;
(b)

the charge preferred;
(c)

the plea;
(d)

the verdict; and
(e)

the sentence,

unless the Court is of the opinion that the publication of any part of such information might defeat the object of its direction under rule 4 in which event the Court may direct that such information shall not be published.
(3)

No person shall publish any information which reveals, or may reveal the identity of an accused person under the age of eighteen years.
(4)

Despite sub-rule (3), the Court, or the Registrar may authorize the publication of information as the Court or the Registrar may find necessary if the publication would in their opinion be just and equitable in the interest of any particular person.
(5)

No prohibition or direction under this rule shall apply with reference to the publication in the form of a bona fide law report of—

(a)

information for the purpose of reporting any question of law relating to the proceedings in question; or

(b)

a decision or ruling given by a Court on such question if the report does not mention—

(i) the name of the person charged;
(ii) the person against whom, or in connection with whom the offence in question was alleged to have been committed;
(iii) any witness at the proceedings; or
(iv) the place where the offence in question was alleged to have been committed.
17.
Application to Court
(1)

An application to Court under these Rules shall be made by the Agency, the prosecution, the investigating officer or any other investigative agency in the proceedings.
(2)

An application to Court may be made orally or in writing at the discretion of the Court.
(3)

An application may be made to the Court at any time during the trial.
(4)

A written application under these Rules shall be made by notice of motion.
(5)

An application under these Rules shall specify the special measure sought and the reasons for the application

Except for some material which is expressly stated to be under a specified Creative Commons license, the contents of this website are in the public domain and free from any copyright restrictions

© 2023 National Council for Law Reporting (Kenya Law). · | Creative Commons · Privacy Policy and Disclaimer