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The period of preservation and maintenance of integrity may be extended for a period exceeding thirty days if, on an application by the police officer or authorised person, the court is satisfied that—. The person in possession or control of the computer system shall be responsible to preserve the data specified—.
Where the person in possession or control of the computer system is a service provider, the service provider shall be required to—. The powers of the police officer or an authorised person under subsection 1 shall apply whether there is one or more service providers involved in the transmission of communication which is subject to exercise of powers under this section.
Where a police officer or an authorised person has reasonable grounds to believe that traffic data associated with specified communications and related to the person under investigation is required for the purposes of a specific criminal investigation, the police officer or authorised person may apply to the court for an order to—.
Where the court is satisfied with the explanations provided under subsection 2 , the court shall issue the order provided for under subsection 1. For purposes of subsection 1 , real-time collection or recording of traffic data shall be ordered for a period not exceeding six months.
A court may, in addition to the requirement specified under subsection 3 require the service provider to keep confidential the order and execution of any power provided under this section. A service provider who fails to comply with an order under this section commits an offence and is liable on conviction—.
Where a police officer or an authorised person has reasonable grounds to believe that the content of any specifically identified electronic communications is required for the purposes of a specific investigation in respect of an offence, the police officer or authorised person may apply to the court for an order to—. Where the court is satisfied with the grounds provided under subsection 2 , the court shall issue the order applied for under subsection 1. For purposes of subsection 1 , the real-time collection or recording of content data shall not be ordered for a period that exceeds the period that is necessary for the collection thereof and in any event not for more than a period of nine months.
The period of real-time collection or recording of content data may be extended for such period as the court may consider necessary where the court is satisfied that—. The court may also require the service provider to keep confidential the order and execution of any power provided for under this section.
A service provider who fails to comply with an order under this section commits an offence and is liable, on conviction—. A person who obstructs the lawful exercise of the powers under this Part, including destruction of data, or fails to comply with the requirements of this Part is liable, on conviction, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both. A police officer or an authorised person who misuses the exercise of powers under this Part commits an offence and is liable, on conviction, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both.
Any person aggrieved by any decision or order of the Court made under this Part, may appeal to the High Court or Court of Appeal as the case may be within thirty days from the date of the decision or order. A service provider shall not be subject to any civil or criminal liability, unless it is established that the service provider had actual notice, actual knowledge, or willful and malicious intent, and not merely through omission or failure to act, had thereby facilitated, aided or abetted the use by any person of any computer system controlled or managed by a service provider in connection with a contravention of this Act or any other written law.
A service provider shall not be liable under this Act or any other law for maintaining and making available the provision of their service. A service provider shall not be liable under this Act or any other law for the disclosure of any data or other information that the service provider discloses only to the extent required under this Act or in compliance with the exercise of powers under this Part.
The Central Authority may make a request for mutual legal assistance in any criminal matter to a requested State for purposes of—. A requesting State may make a request for mutual legal assistance to the Central Authority in any criminal matter, for the purposes provided in subsection 2. Where a request has been received under subsection 3 , the Central Authority may, subject to the provisions of the Mutual Legal Assistance Act, No.
The Central Authority may, subject to this Act and other relevant law, without prior request, forward to a foreign State information obtained within the framework of its own investigations when it considers that the disclosure of such information might assist the foreign State in initiating or carrying out investigations or proceedings concerning criminal offences or might lead to a request for co-operation by the foreign State under this Act.
Prior to providing the information under subsection 1 , the Central Authority may request that such information be kept confidential or only subject to other specified conditions. Where a foreign State cannot comply with the specified conditions specified under subsection 2 , the State shall notify the Central Authority as soon as practicable.
Upon receipt of a notice under subsection 3 , the Central Authority may determine whether to provide such information or not. Where the foreign State accepts the information subject to the conditions specified by the Central Authority, that State shall be bound by them. Subject to section 57 , a requesting State which has the intention to make a request for mutual legal assistance for the search or similar access, seizure or similar securing or the disclosure of data, may request the Central Authority to obtain the expeditious preservation of data stored by means of a computer system, located within the territory of Kenya.
Upon receiving the request under this section, the Central Authority shall take the appropriate measures to preserve the specified data in accordance with the procedures and powers provided under this Act and any other relevant law. A preservation of stored computer data effected under this section, shall be for a period of not less one hundred and twenty days, in order to enable the requesting State to submit a request for the search or access, seizure or securing, or the disclosure of the data.
Upon receipt for a request under this section, the data shall continue to be preserved pending the final decision being made with regard to that request. Where during the course of executing a request under section 57 with respect to a specified communication, the investigating agency discovers that a service provider in another State was involved in the transmission of the communication, the Central Authority shall expeditiously disclose to the requesting State a sufficient amount of traffic data to identify that service provider and the path through which the communication was transmitted.
Subject to section 57 , a requesting State may request the Central Authority to search or similarly access, seize or similarly secure, and disclose data stored by means of a computer system located within the territory of Kenya, including data that has been preserved in accordance with section Upon receiving the request under this section, the Central Authority shall take all appropriate measures to obtain necessary authorisation including any warrants to execute upon the request in accordance with the procedures and powers provided under this Act and any other relevant law.
Where the Central Authority obtains the necessary authorisation in accordance with subsection 3 , including any warrants to execute the request, the Central Authority may seek the support and cooperation of the requesting State during such search and seizure. Upon conducting the search and seizure request, the Central Authority shall, subject to section 59 , provide the results of the search and seizure as well as electronic or physical evidence seized to the requesting State.
Subject to section 57 , a requesting State may request the Central Authority to provide assistance in real-time collection of traffic data associated with specified communications in Kenya transmitted by means of a computer system. Where the Central Authority obtains the necessary authorisation including any warrants to execute upon the request, the Central Authority may seek the support and cooperation of the requesting State during the search and seizure.
Upon conducting the measures under this section the Central Authority shall, subject to section 57 , provide the results of such measures as well as real-time collection of traffic data associated with specified communications to the requesting State. Subject to section 57 , a requesting State may request the Central Authority to provide assistance in the real-time collection or recording of content data of specified communications in the territory of Kenya transmitted by means of a computer system.
Upon receiving the request under this section, the Central Authority shall, take all appropriate measures to obtain necessary authorisation including any warrants to execute upon the request in accordance with the procedures and powers provided under this Act and any other relevant law. Where the Central Authority obtains the necessary authorisation, including any warrants to execute upon the request, the Central Authority may seek the support and cooperation of the requesting State during the search and seizure.
Upon conducting the measures under this section the Central Authority shall subject to section 57 , provide the results of such measures as well as real-time collection or recording of content data of specified communications to the requesting State. The Central Authority shall ensure that the investigation agency responsible for investigating cybercrime, shall designate a point of contact available on a twenty-four hour, seven-day-a-week basis, in order to ensure the provision of immediate assistance for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence, including carrying out the following measures—.
The point of contact shall be resourced with and possess the requisite capacity to securely and efficiently carry out communications with other points of contact in other territories, on an expedited basis. The point of contact shall have the authority and be empowered to coordinate and enable access to international mutual assistance under this Act.
Any court of competent jurisdiction shall try any offence under this Act where the act or omission constituting the offence is committed in Kenya. For the purposes of subsection 1 , an act or omission committed outside Kenya which would if committed in Kenya constitute an offence under this Act is deemed to have been committed in Kenya if—.
The court before which a person is convicted of any offence may, in addition to any other penalty imposed, order the forfeiture of any apparatus, device or thing to the Authority which is the subject matter of the offence or is used in connection with the commission of the offence. Whenever there is a conflict between this Act and any other law regarding cybercrimes, the provisions of this Act shall supersede any such other law. The laws specified in the first column of the Schedule are amended, in the provisions specified in the second column thereof, in the manner respectively specified in the third column.
The Cabinet Secretary may make regulations generally for the better carrying into effect of any provisions under this Act. Insert a new section immediately after section 16 as follows—. Sexual communication with a child. 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. Laws of Kenya.
Point in Time Act No: No. Short title 2. Interpretation 3. Establishment of Committee 5. Composition of the Committee 6. Functions of the Committee 7. Secretariat of the Committee 8. Reports by the Committee etc 9. Critical information infrastructure Protection of critical information infrastructure Reports on critical information infrastructure Information sharing agreements Unauthorised access Access with intent to commit further offence Unauthorised interference Unauthorised interception Illegal devices and access codes Unauthorised disclosure of password or access code Enhanced penalty for offences involving protected computer system Cyber espionage False publications Publication of false information Child pornography Computer forgery Computer fraud Cyber harassment Cybersquatting Identity theft and impersonation Phishing Interception of electronic messages or money transfers Willful misdirection of electronic messages Cyber terrorism Inducement to deliver electronic message Intentionally withholding message delivered erroneously Unlawful destruction of electronic messages Wrongful distribution of obscene or intimate images Fraudulent use of electronic data Issuance of false e-instructions Reporting of cyber threat Employee responsibility to relinquish access codes Aiding or abetting in the commission of an offence Offences by a body corporate and limitation of liability Confiscation or forfeiture of assets Compensation order Scope of procedural provisions Search and seizure of stored computer data Record of and access to seized data Production order Expedited preservation and partial disclosure of traffic data Real-time collection of traffic data Interception of content data Obstruction and misuse of power Appeal General principles relating to international cooperation Spontaneous information Expedited preservation of stored computer data Expedited disclosure of preserved traffic data Mutual assistance regarding accessing of stored computer data Trans-border access to stored computer data with consent or where publicly available Mutual assistance in the real-time collection of traffic data Mutual assistance regarding the interception of content data Territorial jurisdiction Forfeiture Prevailing Clause Short title.
In this Act, unless the context otherwise requires — "access" means gaining entry into or intent to gain entry by a person to a program or data stored in a computer system and the person either—. Objects of the Act. The objects of this Act are to —. Establishment of Committee. Composition of the Committee.
Functions of the Committee. Secretariat of the Committee. Reports by the Committee etc. The Committee shall submit quarterly reports to the National Security Council. Critical information infrastructure. Protection of critical information infrastructure. Reports on critical information infrastructure. Information sharing agreements. Auditing of critical information infrastructures to ensure compliance. Unauthorised access. Access with intent to commit further offence. Unauthorised interference.
Unauthorised interception. Illegal devices and access codes. Unauthorised disclosure of password or access code. Enhanced penalty for offences involving protected computer system. Cyber espionage. False publications. Publication of false information. Child pornography. Computer forgery. Computer fraud. Cyber harassment. Identity theft and impersonation. Interception of electronic messages or money transfers. Willful misdirection of electronic messages.
Cyber terrorism. Inducement to deliver electronic message. Intentionally withholding message delivered erroneously. Unlawful destruction of electronic messages. Wrongful distribution of obscene or intimate images. Fraudulent use of electronic data. Issuance of false e-instructions. Reporting of cyber threat. Employee responsibility to relinquish access codes. Aiding or abetting in the commission of an offence. Offences by a body corporate and limitation of liability. Confiscation or forfeiture of assets.
Compensation order. Additional penalty for other offences committed through use of a computer system. Scope of procedural provisions. Search and seizure of stored computer data. Record of and access to seized data. Production order. Expedited preservation and partial disclosure of traffic data. Real-time collection of traffic data.
Interception of content data. Obstruction and misuse of power. Confidentiality and limitation of liability. General principles relating to international cooperation. Spontaneous information. Expedited preservation of stored computer data.
Expedited disclosure of preserved traffic data. Mutual assistance regarding accessing of stored computer data. Trans-border access to stored computer data with consent or where publicly available. A police officer or authorised person may, subject to any applicable provisions of this Act—. Mutual assistance in the real-time collection of traffic data. Mutual assistance regarding the interception of content data.
Point of contact. Territorial jurisdiction. Prevailing Clause. Consequential Amendments. Written law Provision Amendment. Sexual Offences Act, 16 Delete and replace with the following section— New Insert a new section immediately after section 16 as follows— 16A.
Sexual communication with a child 1 A person of eighteen years and above who knowingly communicates with a child in— i a sexual manner; or ii a manner intended to encourage the child to communicate in a sexual manner, commits an offence and is liable, on conviction, to a fine of not less than five hundred thousand shillings or imprisonment for a term of not less than five years, or to both. Follow us:. About Us. Judicial Profiles. Product Catalogue. Contact Us. Point in Time.
Arrangement of Sections. Interpretation In this Act, unless the context otherwise requires — "access" means gaining entry into or intent to gain entry by a person to a program or data stored in a computer system and the person either— a. Objects of the Act The objects of this Act are to — a. Composition of the Committee 1.
The Committee shall comprise of— a. Functions of the Committee 1. The Committee shall — a. Subject to the provisions of this Act, the Committee shall regulate its own procedure. Secretariat of the Committee 1. The Director shall be — a. Without prejudice to the generality of the provisions of subsection 2 , the Director shall be responsible for — a. Critical information infrastructure 1.
The Director shall designate a system as a critical infrastructure if a disruption of the system would result in — a. The Director shall, within a reasonable time of the declaration of any information infrastructure, or category or class of information infrastructure or any part thereof, as a critical information infrastructure, in line with a critical infrastructure framework issue directives to regulate — a. Protection of critical information infrastructure 1.
The Committee shall, after the gazettement under subsection 1 , in consultation with a person that owns or operates the critical information infrastructure— a. Reports on critical information infrastructure 1. Information sharing agreements 1. An agreement under subsection 1 shall only be entered into for the following purposes and in line with a critical infrastructure framework— a.
He was pronounced dead on arrival. A post mortem examination performed by Dr. The accused were arrested and charged. When the accused persons were placed on their defence, the 1 st accused made a sworn statement to the effect that he was a timber merchant in Ndunyu Njeru centre. He took a motor cycle arriving at At the yard he met a large crowd of people, among them PW1 who identified the alleged thief.
The latter appeared to have been assaulted. He called the 2 nd accused also present at the scene, to assist in escorting the deceased to the AP Post. Using his lorry, he escorted the deceased to the AP Post but he and the group of escorts were directed to Engineer Police Station. The group consisted of the 2 nd accused, PW1 and a man known as Njuguna, the latter who drove the lorry.
Police at Engineer ordered the men to escort the deceased to the hospital where he was admitted. He was notified on the next day that the deceased had died, and was required to record a statement. He denied having assaulted the deceased. He claimed that prosecution witnesses were his business rivals and therefore framed him up. He said that he did not see PW2 on the material date.
The 2 nd accused elected to make an unsworn statement. He stated that he was working and residing at Ndunyu Njeru at the material time. I have considered the submissions filed by the defence and evidence tendered at the trial.
Certain key issues are not in dispute. The presence of the two accused persons at the timber yard where the offence was committed is not in dispute even though their role with regard to the admitted assault of the deceased is disputed. Equally, that the two accused with the help of PW1 and one Njuguna took the injured deceased person to the police station and later to the hospital is not in dispute.
That the deceased succumbed to his injuries before arrival at the hospital is also not in dispute. The court must determine whether the two accused, with malice aforethought inflicted the injuries that resulted in the death of the deceased. Also the two accused persons were well known to PW1. The 1 st accused said that when he arrived at the yard the 2 nd accused and PW1 were already at the scene. The key eye witnesses to the alleged assault by the accused persons are PW1 and PW2.
Both of them agree that the 1 st accused arrived at the yard about noon. Evidently, as often happens when a theft suspect is caught, some members of the public had gathered at the yard as news of the incident spread in the trading centre. It is therefore reasonable to accept the evidence by PW1 that when he first arrived at the yard at The latter confirmed his presence at the scene while the 2 nd accused admitted being present.
PW1 however stated in his evidence that despite their presence he did not witness the 2 nd accused assault the deceased. It is likely that the deceased had been attacked before the 1 st accused arrived, but on the available evidence there is no telling who the culprits was. Seizing upon this possibility the defence projected PW1 as a suspect to the offence and urged that his evidence be taken with caution. Was PW1 a suspect and therefore his evidence accomplice evidence?
In other words, who is an accomplice for purposes of this case? Section of the Penal Code also defines an accessory after the fact but it does not cover a person who merely fails to report a crime. Only examples of who may be an accomplice are given. Whether a witness is an accomplice is, therefore, to be deduced from the facts of each case.
Without hesitation he had rushed to the yard when he learned from Njuguna that a thief had been caught stealing timber at the yard. In his own words, PW1 took it upon himself to question the deceased on arrival at the yard, seeking to know why he came back to steal the timber he brought, to the yard, probably earlier. His claim that he only stayed at the yard for a few minutes before going for lunch sounded like an attempt to minimize his involvement at the scene.
It appears that up on his arrival the 1 st accused person took over the matter of the alleged suspect and he got the witness PW1 and others to assist him make a report. Hence, on the material before me I am convinced that PW1 was an accomplice of sorts to the offence. Notwithstanding the fact that under section of the Evidence Act an accomplice is a competent witness whose evidence can form the basis of a conviction, it is good practice to seek for corroboration of accomplice evidence.
If the court, after hearing all the evidence feels that it cannot believe the accomplice it must reject his evidence and unless the independent evidence is of itself sufficient to justify a conviction the prosecution must fail. If however, the court regards the accomplice as a credible witness, it must then proceed to look for some independent evidence which affects the accused by connecting or tending not connect him with the crime.
It need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. But in every case, the court should record in the judgment whether or not it regards the accomplice as worthy of belief. Before corroboration can be considered, a court of law dealing with an accomplice witness must first make a finding as to the credibility of the witness.
If the witness is so discredited as not to be worthy of any belief, that is the end of his evidence and unless there is some other evidence, the prosecution must fail. If the court decides that the witness though an accomplice witness, is credible then the court goes further to decide whether it is prepared to base a conviction on his evidence without corroboration.
The court must direct and warn itself accordingly. I have reviewed the evidence of PW1 in the context of the evidence in the trial, including that by the accused. I have also noted that during the rather lengthy cross-examination PW1 acquitted himself well on the key issues. He was clearly an odd jobs man and cannot be said to have any business rivalry with the 1 st accused; and no such suggestion was put to him.
I believe that PW1 was a credible witness in so far as the assault by the 1 st accused on the deceased is concerned. PW2 himself appeared an old frail man when he presented as a witness. Though engaged as a night watchman by the 1 st accused, it did not seem to me that beyond lending a bodily presence at the yard, he had the capacity to tackle a young intruder or to subdue anyone. Possibly his value lay in the ability to raise an alarm in the event of an incident, more than offering resistance to any would-be-thief.
The fact that the 1 st accused did not see him on arrival at the yard does not mean PW2 was not there because already a crowd was surrounding the yard. PW2 had been recently engaged and barely knew the workers of the yard, but, he knew the 1 st accused his employer. I consider PW2 an independent witness whose evidence was consistent with an corroborated the evidence of PW1.
Other independent corroboration is found in the demonstrated existence of the water trough in photographs exhibited by the scene visiting office PC Njue PW7. The scene in the said photographs Exhibit 2 is consistent with the description thereof by PW1 and PW2.
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